By TIOL News Service

MUMBAI, JULY 21, 2014: THE accused was arrested in May 1987. After seven years, the trial court acquitted him. Customs took the matter in appeal to the High Court which dismissed the appeal in July 2014 - after 27 years!

The appeal is directed against the judgment and order of acquittal dated 17.1.1994 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Bombay, thereby acquitting the respondent from the offences punishable under section 135 (1)(a)(i) and 135 (1)(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947.

Assistant Collector of Customs (Preventive Department), Bombay received a secret information on 6.5.1987 that one msv Rajendra Jyoti, PSR 695, a cargo vessel travelling from Sharjah to Mumbai was carrying contraband gold sealed in the vessel or in the luggage of the Sailors or the crew members. The respondent No.1, namely, Shri Ebrahim Essa Sodh, was the Captain (tindle) of the vessel and 12 crew members were deployed at the relevant time on the said vessel. The officers of the customs went to the vessel and all the crew members including the respondent No.1 were called. The information received by the complainant was disclosed to them. However, the respondent No.1 and the crew members feigned ignorance about carrying such contraband gold. Thereafter, the country craft was searched on 8th, 9th and 10th May, 1987 by the customs officials in the presence of Panchas. Nothing was found on the vessel or in the luggage of the respondent or the crew members. The respondent was thoroughly interrogated and finally, he admitted that the contraband gold was carried in the vessel but he threw the said gold as soon as the vessel arrived at Hay bunder to avoid detection by the customs and also with a view that some gold could be retrieved later by him. He showed the area where he dumped the gold in the sea. The customs officials carried out combing operation in the area of the sea where the gold was dumped as per the information of the respondent. The operation was successful on 10th May, 1987 as it resulted into recovery of 48 gold bars in a tin container, totally weighing 5596.800 gms, then valued at Rs.9,57,052.80. The said gold bars were seized under panchanama. However, as per the information given by the respondent that he had dumped in all 53 gold bars of 10 tolas each, the customs officials again, on the next day, conducted a search and found 5 gold bars of 10 tolas each, which were slipped out of the container. They were also seized under panchanama on 11.5.1987. According to the prosecution, the said gold was smuggled into India from Sharjah and, therefore, it was confiscated under the Customs Act, 1962. The total gold was valued at Rs.10,56,745.80 at the international market. In the course of investigation, a statement of the accused who confessed about the dumping of the 53 gold bars of 10 tolas each in the sea was recorded under section 108 of the Customs Act. The cargo bags in which the gold bars were seized in which they were carrying wet dates were also shown and that was also seized by the customs. Statements of all the 12 crew members were also recorded under section 108 of the Customs Act, who have stated that they were with the respondent threw gold bars in the sea.

The accused was thereafter arrested under section 104 of the Customs Act on 12.5.1987 and was produced before the JMFC and sent to the judicial custody. A complaint was presented before the learned Judge on 7th June, 1988. The Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, framed charge on 10.7.1989 against the respondent under section 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act and under section 5 of the Imports and Exports (Control) Act.

Statement under Section 108:

The High Court observed,

“the statement under section 108 is admissible and it can be relied also. However, if at all it is retracted, then, weightage can be given to it only if there is corroboration on other material particulars. In the present case, as the panchas did not corroborate and the prosecution did not examine the other panch, that material evidence collapsed.”

The High Court further observed,

“In the present case, as the panchas did not corroborate and the prosecution did not examine the other panch, that material evidence collapsed. Moreover, as per the evidence of the PW1 Akhilesh Kumar and PW2 Narendrakumar Punjabi, the statements of the 12 crew members were recorded. However, in the cross-examination, PW1 Akhilesh Kumar has admitted that to his knowledge, there was no other crew member to state that the accused had thrown a tin containing gold into the sea. PW2 Narendrakumar Punjabi admitted in the cross-examination that there was no eye witness to prove that the accused had thrown the contraband gold. PW2 Narendrakumar Punjabi has stated that the statements of the crew members were recorded by a scribe and the statements were read over and explained to the witnesses before they signed as they did not understand English language and, therefore, a Gujarati interpreter was called. None of these crew members were examined as it was explained by the prosecution that no summons was served on any crew member as they all were out of India. However, the witnesses PW1 and PW2 have stated that the statements were recorded by a scribe and they were explained by the interpreter. The learned trial Judge has rightly observed that in the absence of the statements of these crew members, when the same were relevant u/w 108(b) of the Customs Act, it was the duty of the Prosecution to examine either the interpreter or the scribe and record their statements in order to confirm the veracity of the contents of the statements. PW2 Narendrakumar Punjabi in his further cross-examination has admitted that it was difficult to say who has endorsed “read over, translated and explained the above statements and accepted by the crew member as correctly recorded”.

Thus, these statements cannot be attached much value.

The High Court found that the defence was successful in creating doubt in the mind that the vessel Rajendra Jyoti was not the only vessel berthed at the Hay Bunder during that period but nearly 25 vessels had arrived and, therefore, the possibility that any other person might have thrown the tin filled with gold bars in the sea could not have been overruled.
The High Court relied on a decision of the Supreme Court which gave precautionary directions to the appellate Court before upsetting the judgment of the trial Court, as under:

++ There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

++ The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

++ Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

++ Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

The High Court found that trial Court has taken an evenly balanced view while assessing the evidence and, therefore, there is no need to disturb the finding of the trial Court. In the result, the appeal is dismissed.

(See 2014-TIOL-1169-HC-MUM-CUS)