Superintendent of Customs vs Jacab Bava Padhiar

Z.K. Saiyed, J.—The appellant-Superintendent of Customs, Kutch-Bhuj, has preferred this Appeal u/s 378(4) of the Code of Criminal Procedure against the Judgment and order of acquittal dated 2-3-1989 passed by the learned Chief Judicial Magistrate, Kutch-Bhuj, in Criminal Case No. 4415 of 1988, whereby the learned Magistrate has acquitted the respondents-original accused of the charges levelled against them.

The short facts of the prosecution case is that on 2-2-1987 the Police received an information that some contraband smuggled goods were hidden in forest area of village Lifri and Bhadru of Kachchh District. On receipt of the said information the DSP immediately sent the Police party to the said place where the Police found Video Cassette Recorders, Video Cassettes, etc. It is alleged that the search was carried out during night time and, therefore, the panchnama could not be prepared and goods were brought to Bhuj. Thereafter, on 3-8-1987 the panchnama was prepared and goods worth Rs. 27,24,425/- were seized by the Customs Authority on a reasonable belief that the same was smuggled goods. Thereafter, the investigation was carried out and it has come to the notice of the customs Authorities that the said goods were belonged to accused No. 1 and with the help of accused Nos. 2 to 12 the accused No. 1 has smuggled the same. Thereafter, on completion of investigation the complaint was filed in the Court of learned Chief Judicial Magistrate, being Criminal Case No. 4415 of 1988.

Thereafter the trial was conducted before the learned Magistrate. The prosecution has examined the witnesses and also relied upon the documentary evidence. After considering the oral as well as documentary evidence the learned Magistrate has acquitted the respondents-accused from the charges alleged against them, vide Judgment and order dated 2-3-1989.

Being aggrieved and dissatisfied with the said Judgment and order dated 2-3-1989 passed by the learned Chief Judicial Magistrate, Kutch-Bhuj in Criminal Case No. 4415 of 1988, the appellant, has preferred the above mentioned Criminal Appeal.

I have heard learned Counsel Mr. K.T. Dave, appearing on behalf of the appellant, learned Advocate appearing for the original accused and Mr. Pandya, learned APP for the State. I have also gone through the papers and the Judgment and order passed by the trial Court.

Learned Advocate Mr. K.T. Dave for the appellant has taken me through the evidence of witnesses and the documentary evidence and submitted that from the above evidence it is established that the department has successfully proved its case beyond reasonable doubt. He has contended that the department had no reason to falsely implicate the accused or to concoct the panchnama. He also contended that the department has produced cogent and material evidence to prove its case. He, therefore, contended that the Judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record.

Learned Advocate for the respondents-accused has supported the Judgment and order of the trial Court and contended that the Food Inspector has not followed the mandatory rules and the prosecution has failed to establish prima facie case against the accused.

I have gone through the Judgment of the trial Court. I have also perused the reasons assigned by the learned Magistrate.

At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under :

In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.

Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles :

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge "

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under :

From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.

Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under :

This court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned Advocate for the appellant. There appears to be gross delay of about 10 months in filing the complaint.

The trial court has, after appreciating the oral as well as documentary evidence, has found that there are material contradictions in the evidence of witnesses. The evidence of complainant is not supported by any independent witnesses. The trial Court has also found that accused were not there at the place of offence when the goods were seized. The learned Magistrate has also found that the story put-forward by the department is not believable. The trial Court has also found that there are serious lacunae in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the trial Court.

Thus, the appellant could not bring home the charge against the respondents accused in the present Appeal. The prosecution has miserably failed to prove the case against the appellant D accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Learned Counsel for the appellant is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

In above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

In view of above the Appeal is dismissed. The judgment and order dated 3-2-1989 passed by the learned Chief Judicial Magistrate, Kutch-Bhuj, in Criminal Case No. 4415 of 1988 acquitting the respondents-accused from the charges levelled against them is hereby confirmed. Bail bonds, if any, shall stand cancelled. R & P may be sent back to the trial Court.