Asst. Collector of Customs vs Ramanathan and Others

M. Chockalingam, J.—Challenging the judgment of the learned Chief Judicial Magistrate, Pudukkottai acquitting the respondents/accused

under Sec. 135(1)(b)(1) of the Customs Act, the State has brought forth this appeal.

The short facts necessary for the disposal of this appeal can be stated thus:

On 27.1.1984 at 5.00 P.M., the first accused on the instruction of A-2 from Room No. 6 Danam Lodge at Thanjavur sent two Ambassador Cars

bearing Registration No. TNP 1091 and MSV 7943 to Meemisal, the seacoast, with his men A-3, A-4, A-5 and A-6 in the Car No. TNP 1091

and A-7 in the Car No. MSV 7943. A-1 instructed A-3 to A-7 to meet A-2 at Meemisal and after loading the smuggled goods in the cars to

proceed to Trichy via Aranthangi, Pudukottai. The cars reached the seacoast at 7.P.M. After loading the smuggled goods the said cars proceeded

to Trichy via Aranthangi, Pudukottai. In the car No. TNP 1091 A-4 and A-6 and in the car No. MSV 7943 A-7 and one Sekar alone travelled.

A-3 and A-7 did not travel in the cars. P.W.1 Subramanian, the then Inspector attached to Customs Preventive Unit at Thanjavur, on information

with his team went to Sathankudy near the Kulavai Pattu Cross Road situated at Aranthangi-Pudukottai Road and started searching the vehicles.

At about midnight 12''O Clock on 27.1.1984, the car bearing No. TNP 1091 proceeding towards Pudukottai came near the place. The Officers

tried to stop the car, but the same was not stopped by the accused. When the officials fired at the Car, it was stopped and the accused ran away

from the car. They tried to stop another car bearing No. MSV 7943 on the same way, but it was not stopped. So, the officials fired at the car, and

it was stopped. The accused who were in the car, ran away from the place. The officials searched the cars and found 6 cassette recorders and 2

tape recorders and foreign textiles. A mahazar was drawn in the presence of P.W.7 Rajendran, Revenue Officer in-charge of the check post and

one Krishnan, a tea stall owner at Cross Road, Kulavaipattu. The said mahazar is marked as Ex.P1. The Officers also noted the bloodstains on the

front seat and front door of the left side of the Car No. TNP 1091. With regard to the measurement of the textiles, a mahazar was drawn on

28.1.1984 at about 12.00 P.M. in front of the two independent witnesses, and the same is marked as Ex.P2. Both the seized goods and the seized

cars were kept inside the compound wall of the Office premises at Arulananda Nagar, Thanjavur. On 28.1.1984 at about 11.00 P.M. a driver by

name Chandrasekar informed P.W.1 that A-1 and A-2 along with number of persons came to the Office premises and damaged the jeep and

caused injury to Sepoy Krishnamoorthy, and they took the cars as well as the smuggled goods. P.W.1 after visiting the Office gave a complaint to

the South Police Station, Thanjavur under Ex.P9, and a case was registered. On receipt of information, P.W.1 along with his Superintendent went

to the Thanjavur Medical College Hospital, where A-3 was taking treatment for pellet injury. A-3 gave a statement, and the same was recorded

under Ex.P3 in front of the witnesses. Since A-3 was inpatient and taking treatment, he was not arrested. In Ex.P3 statement, A-3 has revealed the

involvement of the other persons. A-1, A-2, A-4 and A-5 were arrested and remanded to judicial custody in the dacoity case. The statement of

A-1 was recorded on 27.2.1984 in front of the Jailer and two independent witnesses under Ex.P4. On 28.2.84 A-2 and A-5 gave their statements

voluntarily. Ex.P5 is the statement of A-2. Ex.P6 is the statement given by Radhakrishnan. On completion of the investigation and obtaining

permission under Ex.P7, P.W.1 filed a complaint.

In order to prove its case, the prosecution has examined 7 witnesses and marked 9 exhibits. No material objects were marked. After the

evidence of the prosecution was over, the accused were questioned under Sec. 313 of Cr.P.C. as to the incriminating circumstances found in the

evidence of the prosecution witnesses, and they flatly denied the same as false. No defence witness was examined. On hearing the submissions by

both sides and consideration of the materials available, the trial Court found the respondent/accused not guilty and acquitted them of the charge

levelled against them. Aggrieved State has filed this appeal.

The learned Special Public Prosecutor would submit that the trial Court has not considered the entire evidence properly; that it is pertinent to

note that there are bullet marks on the car, and bloodstains were also present; that since the cars which were used for transporting the smuggled

goods, were not stopped, the customs officials were constrained to fire at them; that it remains to be stated that the bullet rounds have hit the

person namely A-3 inside the car and caused bleeding injuries, and A-3 was taking treatment also; that it is true that A-3 has stated that he has not

given any statement, but he did not deny having got himself admitted in the hospital for pellet injuries; that it is pertinent to note that P.W.1 has

given an explanation for not arresting A-3 as he was being treated as inpatient in the hospital; that a perusal of Exs.P3 to P6 statements would

indicate that they were given by the accused concerned voluntarily and could not be due to threat, coercion or undue influence, and thus, those

statements should have been acted upon by the trial Court; that the prosecution has clearly proved the nexus between the accused and the crime in

question; that in view of the cumulative evidence, the respondents/accused should have been convicted, and hence, the judgment of the lower

Court has to be set aside.

Countering to the above contentions of the State, the learned Counsel appearing for the respondents 1, 2, 3, 5 and 6 would submit that only

after proper consideration of the evidence both oral and documentary, the lower Court has acquitted the respondents/accused; that there is no

evidence connecting the accused to the crime; that the prosecution has not proved its case beyond reasonable doubt; that when A-3 has denied

having given any statement in the presence of a Doctor and two independent witnesses, the prosecution should have examined the other witnesses,

but it was not done so; that since no witnesses were examined to prove that the statements were given by the accused voluntarily, the said

statements should not be acted upon; that the lower Court was perfectly correct in recording a finding that the respondents/accused are not guilty

of the charge against them, and hence, the judgment of the trial Court has got to be sustained, and the appeal be dismissed.

After careful consideration of the rival submissions made and scrutiny of the materials available, the Court is unable to notice any substance in

this appeal.

As stated above, the gist of the prosecution case was that on 27.1.84 P.W.1 and his team were searching a car bearing Registration No. TNP

1091 proceeding towards Pudukottai; that they tried to stop the car; that when the car was not stopped, they fired at the car; that the car was

stopped near the Cross Road and the accused ran away from the car; that they tried to stop on the same way another car bearing Registration No.

MSV 7943; that it was not stopped, and so they fired at the car, and the same was stopped near the Cross Road, and the accused ran away from

the car; that on search, they found 6 cassette recorders and 2 tape recorders and foreign textiles in the cars; that a mahazar was drawn in the

presence of the independent witnesses namely P.W.7 Revenue Officer in-charge of the check post and Krishnan, a tea stall man; that they brought

all the smuggled goods to the Department; that the officials came to know that A-3 was taking treatment for pellet injuries in Thanjavur Medical

College Hospital; that P.W.1 proceeded over to the hospital; that a statement of A-3 was recorded in the presence of the Doctor and two

independent witnesses; and that in his statement A-3 has implicated all the other accused. The trial Court has pointed out two serious infirmities in

the prosecution case. According to P.W.1, the statement of A-3 was recorded in the presence of the Doctor and two independent witnesses in the

hospital. But, neither the Doctor nor any one of the independent witnesses was examined to prove the said fact. The prosecution has not come out

with any explanation why no one of them was examined and in particular when the A-3 himself has denied the said statement. P.W.1 has deposed

that the statement of the other accused were recorded in the Sub Jail, Thanjavur marked as Exs.P4 to P6. a perusal of Exs.P4 to P6 would

indicate that the statement of A-1 was recorded on 27.2.84, while the statement of A-2 and A-4 were recorded on 28.2.84. Even on 10.2.84,

when the statement of the third accused was recorded, the fact that A-1, A-2 and A-4 were involved in a crime, which came to the knowledge of

P.W.1. If so, no steps were taken by P.W.1 to record the statements for a period of 17 days. The prosecution has not tendered any explanation in

that regard.

The learned Special Public Prosecutor would submit that only after obtaining proper permission, the statements of those accused were recorded

in the jail. The said fact is not disputed by the respondents'' side. The learned Counsel for the respondents would submit that except the evidence

of the officials, who recorded the statements, nothing else is available; that no witness was examined by the prosecution to show that the statements

were given by the accused voluntarily in the jail; and hence, those statements should not be acted upon. The Court is able to see some force in the

contention of the respondents'' side coupled with the fact that there was an unexplained delay of 17 days in recording their statements.

In view of the above reasons, the lower Court was perfectly correct in recording a finding that the respondents/accused are not guilty of the

charge framed against them, and they are entitled for an acquittal. The Court does not find anything to interfere in the judgment of the Court below.

Hence, the judgment of the lower Court has got to be sustained.

In the result, this criminal appeal fails, and the same is dismissed, confirming the judgment of the lower Court.