Assistant Collector of Cus. (Prev.), Mangalore vs Yogish Achar

B.V. Pinto, J.—This appeal is filed challenging the judgment dated 23-4-2003 passed by the I Additional Chief Judicial Magistrate, Mangalore in C.C. No. 87/1991 acquitting the respondent/accused of the offences u/s 135 of Customs Act and Section 85 of Gold Control Act. The case of the complainant is that on 5-11-1988 at about 6.45 p.m., the accused Nos. 1 and 2 were in possession of contraband gold with foreign marking near Hostel President in Mangalore and when PW.1 arrived at the spot they were found in vehicle bearing No. C.R.X.-1857 and when the said persons were searched they were in possession of 8 yellow coloured metal pieces which were found to be gold biscuits of foreign origin and they were also in possession of a sum of Rs. 35,000./- in terms of Indian currency which is the cost of one biscuit and thereby, they are alleged to have committed offence u/s 135 of Customs act and Section 85 of Gold Control Act.

The complainant in order to prove the case has examined in all 5 witnesses and got marked Exs. P1 to P.19 and Mos. 1 to 8.

The defence of the accused was one of total denial. They have got marked Exs. D.1 to D.2 in their defence. However, after hearing the complainant and the defence, the learned Magistrate held that the prosecution has not proved the case against the accused beyond reasonable doubt and hence, acquitted them. The complainant - Assistant Collector of Customs (Preventive), Mangalore has filed this appeal challenging the judgment passed by the trial Court.

During the pendency of this appeal, the respondent No. 1 who is accused No. 1 before the trial Court is reported to be dead and therefore, the case against respondent No. 1 is abated.

Heard Sri. T.M. Venkata Reddy, the learned Counsel appearing for the complainant and Sri. Vishwajith Shetty, Counsel appearing for the accused.

The Counsel for complainant submits that the evidence of PWs. 1, 2 and 4 are clear and cogent in proving that accused No. 2 Mustafa alongwith deceased A1 was in possession of contraband gold and that the complainant has further proved that the gold is of foreign origin. Hence, he submits that the accused may be convicted by allowing the appeal.

The learned defence Counsel on the other hand submits that there is no illegality or impropriety in the order of acquittal and submits that appeal may be dismissed.

The Assistant Collector of Customs, Mangalore filed a complaint before the Chief Judicial Magistrate, Mangalore on 30-4-1991. It is alleged in the said complaint that on definite information that one Mustafa was likely to deliver the contraband gold with foreign markings to a person waiting near the Hotel President, the Officers of the Intelligence Department conducted a raid near the said place on 5-11-1988 at about 18.45 hours. The said Mustafa arrived holding a red coloured box in his left hand and was waiting there. At about 19 hours, a white coloured flat Padmini Premier Car bearing registration No. CRX 1857 approached and stopped in front of the officers. Immediately, the said Mustafa approached the car and opened the front door and sat down by the side of the driver and when the driver was about to start the car, the officer of the DRI signalled the driver and car was stopped. The red coloured packet carried byMustafa was found lying on the front seat of the car and there was also a white packet dropped by the driver of the car. The car driver identified himself as one Yogesh and one of the partners of Canara Jewelers. Red packet along with the white paper dropped by Yogesh was opened and it was found that the red packet contained 8 yellow coloured metal pieces and the other packet contained Indian currency. Thereafter, they have taken them to DRI Office, Mangalore. It is thereafter found that the yellow metal was gold and the property was of foreign origin and the cash of Rs. 35,000/- was a token advance given to Mustafa by the driver of the car thereby, the said material was subjected to metal test and after investigation complaint for offences u/s 135 of Customs Act, 1962 and Section 82 of Gold Control Act was filed against the accused.

After summoning the accused, the complainant from Customs Department examined one Hariprasad Amin as PW, 1. In his evidence, he has stated regarding the contents of the complaint and has stated that he is the Superintendent of Central Excise and Customs Duty since 1998 to 1991. On 5-11-1988 on receipt of the information that accused No. 2 Mustafa was having contraband articles, they have waited in front of the Hotel President and accused Nos. 1 and 2 were found in possession of 8 gold biscuits and also a cash of Rs. 35,000/- in a car bearing No. CPX 1857. Thereafter, they were brought to the office of the complainant. The total weight of the gold was found to be 932.800 grams, the material was subjected to examination and a mahazar was drawn in the office of the DRI at Mangalore and Ex.P.1 is the said mahazar. He has further stated that he has recorded the statement of accused Nos. 1 and 2 u/s 108 of the Customs Act and Ex.P.2 is the statement of accused No. 1 and Ex.P.3 is the statement of accused No. 2, both run into 5 pages each and accused thereafter, were produced before the Court. It is further stated by him that on 15-11-1988, the first accused had given a further statement u/s 108 of the Customs Act as per Ex.P.4 and second accused has given a further statement on 17-11-1988 as per Ex.P.5. On 22-11-1988 accused No. 1 has given another statement u/s 108 of Customs Act, which is marked as per Ex.P.6. The letter of requisition is marked as per Ex.P.7, the certificate issued by goldsmith is marked as per Ex.P.8 and the letters from the goldsmith is marked as Exs.P.9 and P.10. Exs.P.11 to P.17 are certificates regarding confirmation of the nature of the articles seized.

In the cross-examination, it is elicited that the accused No. 1 is known for long time, since he is a jewel merchant in Mangalore. Accused was known prior to the incident also to PW. 1. He has stated that accused might have come to their office for giving expert opinion. It is further suggested to him that the incident has not happened as alleged and that the car alleged to have been seized in this case had met with an accident as per report of Kumble Police Station in Kasargod taluk in crime No. 149/89. The said case was registered against him. However, he has denied about the said accident and as well as he being an accused in the said case. It is also further suggested to him that he has appeared before the JMFC, Kasargod for release of the said car which suggestion has been admitted by him and admitted that one Idayathulla was driving the said car and a boy had died in the said accident. The charge sheet is marked as per EX.D. 1. It is further suggested to him that a false case has been registered against the accused and the accused were not found in the possession of contraband articles.

PW.2 B.M. Suri is the Senior Intelligence Officer, Customs Department, Mangalore during the relevant period. He has also stated regarding the incident of 5-11-1988 at about 6.30 p.m., when accused No. 2 was waiting for first accused, who came in a car and thereafter, accused No. 2 sat in the car and also regarding the seizure of the contraband articles PW.3. Ramakrishnaiah has subjected the seized gold biscuits for examination by one Lakshminarayana Set, who has given his opinion that seized articles are gold PW.4 Venugopala was a witness to the panchanama, which was drawn in respect of the seizure of the gold articles. The same has been marked as Ex.P.1. PW.5 is the goldsmith who has examined the gold and has given his opinion that the seized article is gold. However, in the cross-examination, he has stated that he cannot say whether the said article is of foreign origin or Indian origin. It is further elicited from him that the licence to his goldsmith shop is in the name of his father and his shop is carrying on the work of only silver articles.

The accused has been questioned regarding the incriminating circumstance appearing against him and they have denied their complicity in the case. EX.D. 1 is the charge sheet filed against PW. 1 and another in the Court of the Judicial Magistrate, Kasargod. Ex.D.2 is the statement made by PW.4 in the departmental enquiry. Based on the above said materials, the learned Magistrate has held that the complainant has not proved the case against the accused beyond reasonable doubt and acquitted the accused of the offences levelled against them.

In view of the fact that first accused has already died and that case against accused No. 1 is abated, what remains is to see whether the complainant has proved the case against accused No. 2 beyond reasonable doubt. The learned Magistrate has stated in para No. 11 of the judgment that relying on Ex.D.2 which is the statement given by PW.4 before the Adjudication officers, the averments made by PW.4 before the Adjudication Officers, are contrary to the evidence adduced from PW.4 before the Court. So far as the evidence PW.4 is concerned, he has denied that the car was involved in the accident in the jurisdiction of Kumble Police Station, Kasargod in Kerala State. However, he has admitted that he was involved in the said case in releasing the said car. It is further found that no seizure mahazar has been drawn at the place where the car was seized nor any witnesses are examined from the neighbourhood. It is the admitted case of the complainant that immediately, after detaining accused Nos. 1 and 2 and seizing the car, they have taken them to the office of the complainant at Bejai, Mangalore. The place where the car was stopped was busy area with many shops and commercial establishments, as admitted by PWs. 1 and 3 in the cross-examination but none of the occupants of the neighbouring shops and establishments were cited as witnesses and no mahazar was drawn at the, place where the vehicle was seized. Therefore, the case of the complainant becomes doubtful and the learned Magistrate has not believed the evidence of the complainant and his witnesses so far as the seizure of the vehicle and contraband articles are concerned.

I have gone through the judgment of the trial Court and I am of the opinion that the grounds on which the accused are acquitted are based on the evidence on record and that there is no illegality or infirmity in the order passed by the learned Magistrate. The Appellate Court in an appeal against acquittal will be very slow in reversal of the judgment passed by the Courts below and only in cases where gross injustice has been caused, the Appellate Court would interfere with an order of acquittal. I do not find any such gross injustice committed by the learned Magistrate in acquitting the accused nor the judgment is perverse. In that view of the matter, I hold that the appeal does not merit any consideration and accordingly, it is liable to be dismissed. The appeal is dismissed.