The Assistant Commissioner of Customs, Special Customs Preventive Division, Kozhikode v. Nazir Tharavettil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** **CRL.A.No.854 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CC 37/1995 DATED 07-06-2004 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES),ERNAKULAM AGAINST THE ORDER/JUDGMENT IN OTHERS 74/2005 DATED 02-02-2005 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** **THE ASST.COMMR.OF CUSTOMS, SPECIAL CUSTOMS PREVENTIVE DIVISION,, KOZHIKODE, REPRESENTED BY, SPECIAL PUBLIC PROSECUTOR.** **BY ADV. SRI.SALISH ARAVINDAKSHAN** **RESPONDENT/ACCUSED:** **NAZIR THARAVETTIL,S/O.SOOPY, KIZHAKKEPARAMBIL, P.O.VISHNU MANGALAM, KOZHIKODE.** **R1 BY ADV. SRI.ANIL K.MOHAMMED R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.DELVIN JACOB MATHEWS R1 BY ADV. SRI.GEORGE PHILIP R1 BY ADV. SRI.B.RAMAN PILLAI R1 BY ADV. SRI.RAJU RADHAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-102020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.854/2005 ## **JUDGMENT** ## **Dated this the 5[th] day of October, 2020** The above appeal is filed by the Assistant Commissioner of Customs Special Customs, Preventive Division, Kozhikode challenging the acquittal order dated 7.6.2004 in C.C. No. 37/1995 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. The above complaint was lodged against the respondent herein alleging offences punishable under Sections 132 and 135 of the Customs Act. 2. The case of the complainant is that on 17.11.1994 at 8.15 a.m., the Superintendent and party, Air Intelligence Unit, Karipur intercepted the accused at the exit gate of the Import Baggage Hall after customs clearance through green channel. To the question whether he was carrying any gold, it is the case of the complainant that he replied in the negative. On the reasonable belief that he was carrying undeclared gold, the officers searched his person and baggage in the presence of independent witnesses. 3 Crl.Appeal No.854/2005 His baggage consists of one rexin suit case, one plastic carry bag and a bundle of mats. Open examination of the plastic carry bag it resulted in the recovery of one black Echolac zipper handbag. When the hand bag was opened and examined, 42 gold biscuits with markings 'U.S.B.G.S 990.0' Union Bank of Switzerland 10 tolas Melter Assayer wrapped with cellophane paper were found concealed in it. On search of his person 3500 U.S,dollars were recovered from the left pocket of the shirt worn by him. The gold biscuits recovered were got assayed by a goldsmith and certified that the gold biscuits were of 24 carat purity and the total weight of the same is 4897.2 gms. The market value of the same was estimated to be Rs.23,31,067/-. According to the complainant, the accused did not produce any legal document for the import of 42 gold biscuits into India. The gold biscuits were seized under a mahassar along with 3500 U.S dollars. Hence it is alleged that the accused committed the offence and the complaint was filed. The complaint was taken on file and the accused appeared. The court framed charge under Section 135(1) (i) of Customs Act. 3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P15 were the exhibits marked on the side of prosecution. Four documents were marked as court exhibits. 4 Crl.Appeal No.854/2005 4. After going through the evidence and documents in this case, the trial court found that the accused is not guilty of the offence punishable under Section 135 (i) (i) of the Customs Act and he was acquitted under Section 248 (1) Cr.P.C. Hence, this appeal. 5. Heard the Special Prosecutor Sri. Salish Aravindakshan and the counsel for the accused. 6. The point for consideration in this appeal is whether the acquittal order passed by the trial court is correct or not. 7. Altogether 6 witnesses were examined on the side of the complainant. PW1 is the Intelligence Superintendent of Customs. PW2 is the intelligence officer who prepared Ext.P2 seizure mahazar. PW3 is the Indian Airlines Traffic Superintendent intelligence officer who prepared Ext.P2. PW4 is the Security Assistant Indian Airlines who witnessed the seizure. PW5 is the Chemical examiner who assayed and issued Ext.P14 assay certificate. PW6 is the Assistant Commissioner SEP Division, who filed the complaint. 8. The trial court considered the oral and documentary evidence in detail and acquitted the accused. This is an appeal against acquittal. The Apex Court observed that the presumption 5 Crl.Appeal No.854/2005 of innocence attached to every accused persons got strengthen on acquittal of an accused by a trial court. This principle was laid down by Hon'ble Supreme Court in _**Sampat Babso Kale and another v. State of Maharastra (AIR 2019 SC 1852)**_ & _**Chandrappa and others V. State of Karnataka [(2007) 4 SCC 415]**_ . Paragraphs 40 & 41 of the Chadrappa's case is extracted hereunder: _“40. In Ramanand Yadav v. Prabhunath Jha, this Court observed; (SCC pp.614-15, para 21)" 21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed_ 6 Crl.Appeal No.854/2005 _any offence or not"._ _41. Recently, in Kallu v. State of M.P., this Court stated; (SCC pp.317-18, para 8) "8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied)_ 9. Bearing in mind, the above principle I have considered this appeal against acquittal. The Special Public Prosecutor who appeared for the appellant submitted that there is a presumption under Section 138A of the Customs Act. According to the Special Public Prosecutor, the prosecution established the case and accused was not able to rebut the presumption. I don't think that the above stand of the learned Special Public Prosecutor is correct. The trial court considered the oral and documentary evidence in detail. The trial court discussed the 7 Crl.Appeal No.854/2005 matter in detail in paragraph 10 onwards in the impugned judgment. Para 10 & 11 of the impugned judgment is extracted hereunder: “10. _There is no dispute that the accused was apprehended by PW1 while he was proceeding along with the green channel after customs clearance. According to P.W.1, while the accused was proceeding so, he was asked whether he was in possession of any gold without paying the customs duty and in response it, he replied in the negative. Since he was not satisfied and with the reply given by the accused, the body as well as the baggage possessed by him were examined in the presence of P.W.3 and P.W.4. On examination of the plastic carry bag, there found out a hand bag wherein he found out 42 gold biscuits covered in a cellophane tape. On search of the body of the accused, he recovered 3500 American dollars from the pocket of his shirt worn by him. Since he was not in possession of any documents for carrying those contraband articles, they were seized by preparing Ext.P2 seizure mahazar. It is an admitted fact that the accused was having the amount for remitting the customs duty for the gold biscuits brought with him. It may be noted that gold was not a prohibited item under Section 123 of the Customs Act. During the relevant period, a passenger could have brought 5 kgs. of gold with him. For remitting the customs duty of 5 kgs. of gold it would come around Rs. 1,07,000/-. The accused was having 3500 dollars which would come to_ 8 Crl.Appeal No.854/2005 _Rs. 1,07,738/-. Thus the accused was having the foreign currency to remit customs duty of the 42 gold biscuits. It may be noted that the accused was intercepted while he was proceeding along the green channel. It is also pertinent to note that an officer is posted in the green channel counter. But P.W.1 does not know as to who was the officer-in-charge of the green channel counter. If the accused has proceeded along the green channel with or without his permission, it was quite necessary to take down the statement of the officer who was in-charge of the green channel. But in the present case no such statement was recorded from him. The prosecution has no case that the accused has committed such similar offenes before. The gold biscuits carried with him cannot be said to be in a concealed manner so as to evade the customs duty. The only fault on the side of the accused was that, he was seen found in the green channel. In the absence of any statement from the side of the officerin-charge of the green channel it cannot be said that the accused intentionally proceeded along the green channel without paying the customs duty. It is the definite case of the accused that, the accused was having the amount for remitting the customs duty for the gold biscuits he brought and he was not aware of the importance of the green channel through which he was proceeding so. He had no intention to evade tax in any manner._ _11. It is also pertinent to note that the prosecution has not produced the adjudication order_ 9 Crl.Appeal No.854/2005 _passed against the accused in this case. It is the case of the defence that the gold was ordered to be given back to the accused in revision, on payment of custody duty. But the prosecution has not produced any adjudicating order and P.W.1 is not aware of this aspect. It is also to be noted that while the accused was in custody, he had given a retraction statement to the Collector of Central Excise and Customs. But the said statement was not produced by prosecution. The retraction statement produced was only a photostat copy of the same. It is not known why the prosecution has not produced the retraction statement in original given by the accused immediately after his remand. The failure of the accused in observing the formalities prior to proceeding out side to the Airport on his landing and in the non-examination of the officer incharge of the green channel it cannot be said that the accused intentionally wanted to proceed outside through the green channel without paying the customs duty of the gold biscuits he brought with him. Thus on going through the evidence adduced it could be seen that the prosecution has not succeeded in proving the case against the accused beyond reasonable doubt and the benefit of doubt to be accorded to the accused. The point is answered accordingly. “_ 10. I see no reason to interfere with the above finding of fact by the trial court. The trial court considered all the oral and documentary evidence in detail and came to a definite conclusion 10 Crl.Appeal No.854/2005 that the accused is not guilty. In such circumstances, this Court cannot interfere with the well considered judgment of the trial court in an appeal against acquittal. Therefore, this Crl.Appeal is dismissed confirming the judgment dated 7.6.2004 in C.C. No. 37/1995 on the file of the Additional Chief Judicial Magistrate Economic Offences, Ernakulam. Sd/- **P.V.KUNHIKRISHNAN JUDGE** al/-