S.G. Rajadhyaksha, Assistant Collector of Customs vs Yusuf Kadar and Others

D.J. Moharir, J.—This Appeal by the Assistant Collector of Customs, Bombay, takes exception to the judgment of the learned Additional Sessions Judge, Bombay, acquitting the Respondent Nos. 1 and 2 herein, Yusuf Kadar and Jamaluddin Raj Mohammed Khan by allowing their appeals against the conviction recorded by the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay for offences under Sections 135(1)(a) and 135(1)(b) read with Section 135(1)(ii) of the Customs Act, 1962 and Section 3(a) read with Section 5 of the Imports and Exports (Control) Act, 1947. Initially, three persons came to be charge-sheeted by the complainant, the Customs Department., for commission of the above stated offences. Out of them, the original accused No. 3, one Shankar Jaya Dhawle pleaded guilty and was convicted and sentenced.

The prosecution of all these persons came to be launched upon the following brief material allegations.

The Colaba Police Station of Bombay carries out Nakabandi every Saturday evening. As such, on 25lh July 1976, which was also a Saturday, the Nakabandi came to be arranged. One of the Police Officers taking part in this Nakabandi was Police Sub-Inspector Bhat (P.W. 4). PSI Bhat as also two other Police Officers Gadre and Zeride were covering the area for Nakabandi in and around the Sassoon Docks. At about 1 a.m. PSI Bhat while going around in this area, more particularly in the closer vicinity of the Sassoon Dock, saw a motor Ambassador make car MHY 1432 coining out. of the Sassoon Dock. He intercepted this vehicle near the gate of the Sassoon Dock. He noticed a large number of gunny bags on the rear scat. On the front seat were three persons, original accused Nos. 1,2 and 3 and out of them, it was the accused No. 1 who was at the steering-wheel and was therefore concluded to be the driver of the vehicle. When the vehicle stopped, he had also a look into the dicky of the vehicle. There were some more gunny bags kept there. Inasmuch as PSI Bhat had some prior information about the smuggling activities to be expected that night, he suspected that these three accused persons were carrying smuggled goods out of the Sassoon Dock and, therefore, he immediately arranged for panchas to be called. One of the panchas was Dr. Sadrik Joseph. Along with these panchas, the accused and the Ambassador Car suspected with smuggled goods were taken to the Colaba Police Station. A detailed Panchanama was drawn, an inventory was made of various smuggled articles and an approximate valuation thereof was made. The car in question was also seized. Whether it was precisely at about 4 30 a.m. or at 8 a.m., the Colaba Police Station having realised that this was a matter which was to be dealt with under the Customs Act, informed the Customs Office. The Customs Office requested that the accused persons as also the car and goods smuggled be also sent to them. Tins wit? arranged by PSI Bhat.

On being taken to the Customs Office, a fresh panchanama was drawn in which the valuation it. appears, was shown less than Rs. 1,00,000/-, about Rs. 98,00/- and odd. Offence having been registered against all the three accused persons under the above staled provisions, investigation proceeded further. The statements of the panchas who were present at the panchanama drawn at the Colaba Police Station as also the statements of the PSI Bhat were recorded. Statements of the accused Nos. 1, 2 and 3 were also recorded u/s 107 of the Customs Act. It appears that these statements u/s 107 having been found to be wholly inexplicable, the Superintendent of Customs, accused Shri Shivpuri, who is also a prosecution witness, decided to proceed with the interrogation exercising his own powers as a Gazetted Officer u/s 108 of the Customs Act. The interrogation of all three persons accordingly proceeded for a second lime by the Customs Authorities. Accused No. 3 having pleaded gooey, was convicted. As against Respondents 1 and 2 who pleaded not guilty and contended that they had been falsely implicated, the trial proceeded. The learned Additional Chief Metropolitan Magistrate having extensively dealt with the prosecution evidence, came to the conclusion that the accused Nos. 1 and 2 were both proved guilty of the offence u/s 135(1)(a) and 135(1)(b) both punishable u/s 135(1)(ii) of me Customs Act. They were also convicted u/s 3 of the Imports and Exports (Control) Act. Each of then) was sentenced to suffer R.I. for one year and to pay a fine of Rs. 1.000/- in default to suffer further R.I. for two months on each of the three counts. Against this conviction and sentence awarded, the accused preferred Appeals Nos. 882 of 1977 and 883 of 1977 which were heard and decided by the learned Additional Sessions Judge, Greater Bombay. Having considered the entire evidence on record, once again the learned Additional Sessions Judge found that the entire prosecution case rested really upon the testimony of PSI Bhat (P.W. 4) and therefore observed that if the testimony of PSI Bhat itself were to be found lo be credible and sufficient, then there would be no difficulty in upholding the conviction of the appellants. If however, as the learned Additional Sessions Judge further observed, the evidence of PSI Bhat would not be found sufficient by itself, then the other credible corroborating evidence would also have to be found for sustaining the conviction of the appellants. He then proceeded to consider the evidence of P.W. 4 as also the evidence of the panch witness Dr. Sadrik Joseph and referring them 10 the odder aspects of the facts and circumstances, he came to the conclusion that this evidence was indeed hardly sufficient as also inspiring confidence for sustaining the conviction as recorded. The appeals were, there for, allowed and the two respondents herein came to be acquitted. It is this acquittal by the Earned Additional Sessions Judge to which exception is taken by the present appellant. At the stage of this appeal, the matters having brought to lie within the narrow compass, the question is whether the evidence of the first arid for most amongst the prosecution witness PSI Bhat (P.W 4) not so much on the question of his finding the motor car with its contents of smuggled goods but the fact of the accused Nos. 1 and 2 being found in that car is true. The evidence of PSI Bhat which is not made a matter of any particular dispute that he was on the Nakabandi duty on the night of Saturday, the 25th June 1976; that he was there during the course of the patrolling near the southern gate of the Sassoon Dock and Justly that a car of Ambassador make bearing Registration No. MHY 1432 was found and upon being Liken to the Colaba Police Station, it was also found to contain a variety goods which were properly styled as being smuggled. The valuation thereof was in the region of Rs. 1, (X),000/- and more as per the panchanama drawn. When these smuggled goods were taken in the custody of the Customs Department, the valuation thereof was found to be Rs. 98,000/- and odd. The second panchanama of valuation, it is pointed out by Counsel Shri Patwardhan appearing for the Department, would indeed have eliminated the charge u/s 145(1)(2) on the valuation being Rs. 1.00.000/-. It is therefore pointed out by him that the offence complained of would have been a lesser one provided and in the event the evidence established the complicity of ''he accused Nos. 1 and 2. But then the question is whether the Ambassador car which was carrying smuggled goods was being, at the material time, driven by the accused No. 1 and whether the accused No. 2 was also in the same car at that time. The accused while answering the charge submitted that they did not know anything whatsoever about this Ambassador car; that neither of them was in the car at the material time and that they had not been found by the PSI Bhat while the vehicle was being driven nor was the accused No. 1 the driver of the vehicle. So it is evident that unless the prosecution proves that the accused Nos. 1 and 2 were the persons who were present in the car when it came out of the southern gate of the Sassoon Dock with the smuggled goods therein, the charge as framed against them could not be said to be brought home. It is from this basic aspect that the re-assessment of the evidence must have been made by the learned Additional Sessions Judge. An endeavour has been made here again to show that the testimony of the PSI Bhat P.W. 4 should have been accepted as much in regard to the complicity of the accused No. 1, as it was in regard to the finding of the smuggled goods in the car.

PSI Bhat has deposed that at about 1 a.m. he saw the Ambassador Car MHY 1432 coming out of the southern gate of the Sassoon Dock and it being his duty to check every vehicle, he intercepted this vehicle "at the gate". He put his motor cycle across the path of the car. He found the appellants�accused No. 1 and 2, Yusuf Kadar and Jamaluddin on the front seat of the car. The gunny bags kept on the rear seat were quite open to view and since PSI Bhat states that he already had received information from a secret source earlier about smuggling activity on that day, he concluded that these were the smuggled goods carried in the car. He promptly called two persons to act as panchas. These two persons were Dr. Sadrik Joseph (P.W. 6) and one Nigam. They had been going in a blue car at the material time. Their car was also signalled to a stop by the PSI Bhat and then he requested them to act as panchas. Dr. Joseph left his car there only standing by the side of the road. He and Nigam got into the Ambassador Car which was then driven to the Colaba Police Station by the PSI Zende. The accused Yusuf Kadar and Jamaluddin had been asked to alight from the car and they also got into the Police Jeep. In the Jeep these two appellants as also the third convicted accused Shankar were taken to the Colaba Police Station and it was there that a detailed inspection of the car was made. The panchanama was drawn as per Exhibit ''H'', Actually the panchanama deals with the description, quantity and approximate value of the goods and it is specifically mentioned that it was concluded at 4 a.m. At 4.30 a.m., PSI Bhat says, that he gave information about the occurrence to the Customs Control Room and was requested to send the accused as well as the car with its contents of smuggled goods to the Customs Office in the Old Custom House at Colaba. This testimony of PSI Bhat was subjected to considerable criticism at the stage of the trial before the learned Additional Chief Metropolitan Magistrate but did not find favour with him. The learned Additional Sessions Judge was however persuaded to accept the doubtful character as also the insufficiency of the evidence of PSI Bhat and the fact of non-examination of certain material witnesses as also the fact or accused No. 1 having been also found present in the car when it was allegedly intercepted. The fact that the car has been intercepted while moving out of the southern gate of the Sassoon Dock is also a fact which has been strenuously put to dispute and, therefore, the cross-examination of PSI Bhat has to be dealt with in some detail. He admitted that on the way to the Colaba Post Office from the Colaba Police Station, he had no occasion to put any vehicle to any check, he had left the Police Station at midnight. He also had not seen private cars or taxis or trucks on the road at that time. While going by Shahid Bhagatsingh Road also, he did not come across any person or vehicles but as soon as he reached the southern gate of the Sassoon Dock that he saw the light of an emerging vehicle from the side of the jetty. He signalled the vehicle to a stop and put his motor cycle across the way and got down. It appears to this witness that from the inside of the Dock Premises that is on the inside of the main gate on the southern side, there were other police officers such as PSI Gadre, Police Constables who rushed near him as soon as the motor car was stopped. Some attempt had been made by the driver to put the car into reverse to escape the direction from which it had come but this was rendered impossible by reason of the presence of the other Police Constables and PSI Gadre. On seeing the gunny bags on the rear seat which were open to view, he immediately decided to have an inspection made in the presence of panchas. He saw a blue car coming from the opposite direction. There were only two persons in the said car�two panchas Dr. Joseph and Nigam. It was in their presence that he had then asked the accused No. 1 to get down from the car. According to him, the three occupants of the smuggled car had still kept seating. They were in the front portion when the two panchas Dr. Joseph and Nigam came near it. It is, therefore, pointed out that the testimony of Dr. Joseph also supports Bhat''s evidence that three persons were found sitting in the front seat of the car. It is however to be noted that the further statement of the PSI Bhat that he found the accused No. 1 at the steering-wheel is not in turn corroborated by Dr. Joseph. Dr. Joseph (P.W. 6) no doubt corroborates that the car was then taken to the Colaba Police Station after asking the three occupants thereof to get down and then be seated in the Police Jeep. The car in question was then driven by PSI Zende and Joseph and Nigam were also asked to get into that car. All of them then went to the Police Station. The testimony of Dr. Joseph has also been subjected to the considerable questioning to suggest that in fact he had never happened to pass by the Road at that hour of the night nor in the company of the photographer Nigam and all that had happened was that he had been called to the Colaba Police Station early in the morning and had been asked to sign the panchanama which he, obligingly, did sign. The plausibility of this suggestion as a matter of fact is also weighed by the learned Additional Sessions Judge. Upon his own assessment he found the same to be a matter of fact. However, even before that, a closer scrutiny of the testimony of the PSI Bhat it is pointed out by the learned Counsel, Shri Desai, appearing for the Respondents must compel the Court to raise its eyebrows in a considerable degree of suspicion that it is an engineered story indeed. So far as the implication of the accused Nos. 1 and 2 is concerned, several circumstances have been pointed out in this behalf. The first amongst these is that according to PSI Bhat this was the first ever case of his - trapping a vehicle in a smuggling activity, that is, it was the case of his first custom seizure as such. He stated that on finding the accused No. 1 at the steering-wheel, he had not endeavoured to ascertain whether the accused No. 1 held a driving licence. None was seized from the car. Dr. Joseph has also stated that he had not seen the vehicle being driven by the accused No. 1. He had arrived at the scene only after he was sent for and that was of course after the car was intercepted and stopped on the road. It is therefore that the omission on the part of Dr. Joseph to rake a specific statement that he saw the accused No. 1 at the steering-wheel becomes a circumstance upon which the authenticity of Bhat''s statements that accused No. 1 was a driver of the vehicle stands questioned. It may also be mentioned here that with reference to the subsequent statements of the accused No. 1 recorded u/s 108 by the Superintendent Shri Shivpuri, as also the statements of the accused No. 2 Jamaluddin, some indication apparently provided by the Customs Authorities was that the accused No. 1 was the owner of the motor car and that he also used to drive that vehicle. In such a case, it is conceded by the learned Counsel, Shri Patwardhan appearing for the Appellant that it ought necessarily to have been a matter of enquiry to ascertain as to whether the accused No. 1 held a driving licence or not. The seizure of such a driving licence of the accused No. 1 would have therefore added strength to the statement of the PSI Bhat that he had himself, with his own eyes, actually seen the accused No. 1 Yusuf Kadar driving the Ambassador Car in question. Secondly, considerable doubt has to be raised upon the circumstance under which the car in question came to be found by PSI. That is, whether this car, assuming that it was in motion, coming out of the southern gate of the Sassoon Dock it came to be intercepted on prior information as such or whether this was only an accidental finding. Indeed, PSI Bhat would appear to me almost unconvincing on this part. At one stage, he attempted to state that he had very specific information received from a secret source that it was these accused persons who were going to smuggle goods out of the Dock that night. However, he has conceded dial even so, he had not come to know the make and registration number of the car in which the smuggled goods were to be taken or the specific time al which the vehicle was likely to be found carrying smuggled goods in question. He also admitted that though he had had this information received in advance, he had still not, made an entry in she Station Diary. He also admits that apart from his omission to make an entry in the Station Diary in this behalf he had not at any point of time earlier informed his superiors about the information which had been received by him. it is as if he wanted to make, a success of live trap upon the secret information received. Whatever be his desire in this background having a test of his own competency and skill, the fact remains that it is his own word and nothing more, There is no other evidence that he had any prior information on this aspect. At a late stage of cross-examination, he came to disclose, rather surprisingly, even the name of the informant as being Krishna Naidu and the said person has yet not been put into the witness box as a material prosecution witness to depose that he had provided the information to the PSI against these three specific persons. This witness has at yet another stage in the cross-examination, admitted that his finding of the car coming out of the Sassoon Dock and going away was actually an accidental even. This is again unsupportable by the further evidence. A suggestion to him was that it was that if was only accidentally that he had come to find the car parked and abandoned by the side of the Road, which is outside the southern Gate of the Sassoon Dock. Of course, he has denied the suggestion and asserted that he actually found these persons in the vehicle. The suggestion made to him was that be had apprehended and foisted the liability in respect of the car and its contents on these two respondents and the third accused Shankar as they had happened to pass by the road while returning from a late night cinema show Shri Patwardhan took particular exception to the suggestion made to the PSI in the cross examination that the PSI had actually stopped them and had forced them to get into the car to establish their presence in it - by the time the panchas arrived. The approaches at the suggestion made no doubt, appear to be discontinuing and leave the prosecution of the burden of establishing the presence of the accused Nos. 1 and 2 as also Shankar. If the prosecution has to succeed, the version of the, panch witness Dr. Joseph has to be taken into consideration. Dr. Joseph''s version that he is a businessman and the learned Counsel, Shri Palwardhan also tends to make much of the fact that Dr. Joseph holds a Doctorate, presumably in engineering and that he is the owner of a workshop at Colaba. Dr, Joseph says that he had been driving the blue car along with Nigam, that both of them got going on the road at about 9.30 or 10 p.m. and had still been roaming about somewhat aimlessly, in the car till late 1.30 or a.m.; they were stopped by the PSI near the Sassoon Dock. Dr. Joseph has explained that he had been negotiating a deal with the other panch Nigam at that time. This would hardly be a convincing reason of the part of the witness, for being found at such a late hour on a rather deserted road. However, in my opinion, this affects much the credibility of Dr. Joseph as a witness and would tend to indicate his amenability to the influence of the Police. While he says that on being stopped by the PSI Bhat, he and Nigam got, out of the blue car and left it there, he does not say that at the end of the panchanama al the Colaba Police Station, he went back to collect his car left near the Sassoon Dock for finally going home. In my opinion, such would be the most natural epilogue to be expected to be made by this witness if really he had been going by the road in his car when called upon to act as a panch witness.

There is yet another circumstance which is pointed out, weighing against the acceptability of the evidence of PSI Bhat. It is pointed out that as soon as the Ambassador Car in question had come to be intercepted almost in front of the southern gate of the Sassoon Dock, he would have gone and reported the mailer at the Customs Police Chowki which he knows is just inside the Dock, close to the gate. PSI Bhat has, unconvincingly as rightly remarked by the respondents Counsel stated that he had actually gone to the Customs Chowki and wanted to report there about his having seen and intercepted car smuggling goods out of the Dock. However, according to him, he found no one present al the Chowki. This statement, the learned Counsel appearing for the Respondents pointed out, is not true in view of the evidence of the Preventive Officer Bhonsale (P.W. 7) who asserts that the Customs Police Chowki is always manned round the clock and an officer is invariably to be found present on duty there. That is as it must indeed be. Of even greater consequence is the evidence of Bhat himself, that Police Sub-Inspector Gadre, Police Sub-Inspector Zende and some members of the staff had at that time also surrounded the vehicle by coming out from the Dock. When this was a case pertaining to smuggling of goods and the commission of offences under the Customs Act, it would have to be handed over eventually to the Customs Department. It had been in fact so handed over at a subsequent hour no doubt. The question is whether the vehicle having been intercepted, as he asserts, whether it was also not expected of the PS I to promptly take the vehicle to the Customs authorities Police Chowki inside the Dock. It was, as agreed by appellants'' learned Counsel. Yet, he admits, he first took the vehicle and the occupants to his Colaba Police Station. This step on the part of PSI Bhat cannot be justified. He however felt, probably consistent with his statement earlier, that septic this was his first customs case which he had detected, he was justified in therefore first taking the car not to the Customs Chowki but to the Police Station. May be, he desired to show off his prowess. That however does not answer the premise that the customs authorities inside the Dock, with the Chowki so close to the gate, were not yet approached. The need of drawing of any panchanama also stood to be easily avoided by taking the car straight to the Customs Chowki and handing it over to the Preventive Officer present there.

Shri Patwardhan argued that in spite of the omission on the part of PSI Bhat take the Ambassador Car to the nearest Chowki and despite his action in taking tin car; the Colaba Police Station, what has to be appreciated is his standing undiluted on hi-assertion that the accused No. 1 was that the driver of the vehicle and the accused No. 2 was sitting in that vehicle. As already appreciated by me, this statement itself requires an independent corroboration. It could be expected only from the panch witness since the police constable who was riding with him on the pillion of the motor cycle has not been examined. But then the panch Dr. Joseph himself comes under criticism as a wanes doubtful credibility. The first reason being as pointed out earlier is that though he assents his presence accidentally at the material time, he does not substantiate by a concluding statement that at the end of the panchanama at the Colaba Police Station he had gone back and driven his own car to go home. That apart, Dr. Joseph who has been trying put up a most natural front has eventually conceded that all the three officers whom had seen present at the spot had been known to him for at least about a year und h before this incident The third circumstance which lends support to the suggestion by defence about his being a procured witness is that Nigam who was accompanying him his blue car was a person of 35 years of age. What actually transpires is that Nigam '' young man of only 22 years. It was, therefore, suggested to Dr. Joseph that Nigam was also a person whom he had never been seen by him because he was not in his car a the time. It has been suggested to Dr. Joseph in his cross-examination that his erroneously stating the age of Nigam was for the reason that he himself had been called only at the Colaba Police Station for signing an already prepared and drawn up panchanama; that Nigam had also been called therefore for the same purpose but at some other hour and because he had never known nor seen Nigam, he had stated Nigam''s age as 35 years. The suggestion was denied but it carried considerable substance. Therefore, the learned Additional Sessions Judge, while re-assessing the entire evidence came to the conclusion that Dr. Joseph was as unreliable a witness as PSI Bhat himself and the testimony of Dr. Joseph as a panch witness could not provide due corroboration to the testimony of the PSI Bhat.

It is also pointed out by learned Counsel for the Respondents that at least in respect of the respondent, accused No. 2, there was considerable ground for PSI to involve him falsely in the present charge. The reason as Shri Desai points out is that there is rivalry between the Customs Department and the Police. In that background, he points out (hat the accused No. 2 - Jamaluddin is proved to have been a very reliable secret informant of the Customs Department in several cases and in one of the cases he had even been awarded Rs. 1,00,000/- and more for having been useful to the Customs Department. It is for this reason of not being so useful to the Police Department that PSI Bhat as representative of the Police Department had an animus against this witness. Even if some regard is to be given to the statement of the accused No. 2 as recorded u/s 108 of the Customs Act by the Superintendent Shri Shivpuri, it will emerge that here is considerable substance by the accused No. 2 in his firm explanation and in this statement it is also to be found that the accused No. 2 had also stated that though he knew the accused No. 1, he had never been in the company of the accused No. 1 as such in the smuggling activity. The accused No. 2 stated that he had been that night, at his homo in the Dockyard Area. He was awakened by hearing a lot of activity, in particular the noise of a motor cycle running about in speed. It was then that he came out and had gone near the Sassoon Dock where the Police had gathered. He was involved by PSI Bhat, taking advantage of his innocent presence there.

These facts and circumstances have been very carefully taken into account by the learned Additional Sessions Judge. When he therefore came to the conclusion that the conduct of the PSI on the whole had been unnatural and that his testimony therefore demanded corroboration independent sources which again Dr. Joseph could not provide, competently and with credibility, the learned Judge was right. In the circumstances, I find it extremely difficult to hold that the learned Additional Sessions Judge while deciding the appeal has reversed the decision of the Additional Chief Metropolitan Magistrate, only on the premise that another view of the prosecution evidence could have been taken. In my opinion, having appreciated and scrutinised the evidence as also the judgments of the two Courts below, the conclusion is clear that there was much more than mere possibility of a second alternative view of the prosecution story that was present in the case. In fact it was a case of the learned Additional Chief Metropolitan Magistrate choosing to completely ignore the inherent and the fundamental demerits of the evidence of the PSI and the. panch witness Dr. Joseph on which alone the tenability of the charges could be founded in the first instance. Insofar as the statements recorded u/s 107 and then again u/s 108 of the Customs Act are concerned, it h very very clear that the statement u/s 107 of the Customs Act being totally exculpatory, the statements u/s 108 of the Customs Act came to be obtained by resort to what could almost be unmistakably styled as the third degree. The accused persons overtaken from the 1st floor to the third floor of the Customs Office for further and more interrogation which started from 10.30 p.m. on 25th July 1976 and went on till 9,30 a.m. of 26th July 1976. This long duration in itself is a fair indication of how worthless the statements u/s 108 of the Customs Act could as voluntary and for sustaining a conviction.

In the circumstances, the acquittal as recorded by the Appeal Court below becomes unexceptionable. It would therefore, have to be confirmed. The Appeal is accordingly dismissed confirming the decision of the learned Additional Sessions Judge, Greater Bombay.