1 APPLN-3086.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.3086 OF 2009 Union of India .... Applicant Vs. Dhanraj Lalchand Shah & Ors. .... Respondents Shri D.N. Salvi for the Applicant. Shri Ramesh Punwani with Ms Teja Katdare for Respondent Nos.1 & 2. Shri Madhu Patel for Respondent No.3. Ms M.M. Deshmukh, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JULY 27, 2011 P.C: This is an application for leave to file appeal against the acquittal of the original accused Nos.1, 3 and 5 ordered by the learned Addl. Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai for the offence punishable under Section 135(1)(a) and 135(1) (b) r/w Section 135(1)(i) of the Customs Act, 1962. On 3-12-1986 officers of the Central Excise Department intercepted a motor-tempo on the Western Express Highway containing 40 cartons which contained polyester yarns. When 2 APPLN-3086.09 the cartons were opened, they were found to contain another cartons having marks showing that they were made in Japan. The goods were allegedly dispatched by accused No.2 Mahavir Prasad who has not been tried. Another batch of officers, on the same day, went to the godown of accused No.3 Vijay Mehta where Vijay Mehta was found to have stored about 95 packages containing similar cartons of yarns made in Japan. Accused No.3 stated that the goods were stored at the instance of accused No.2 who was called and who came there. He claimed that he had stored the goods at the instance of accused No.6 Mohamed Mushtaq Khan, who has also not been tried. Accused No.5 Krishankant Chunilal Kapadia is a broker and is supposed to have ordered the delivery of the yarns. Accused No.4 Vijaykumar Bagga, who has not been tried, was supposed to have changed the cartons. The learned Magistrate held, first, that as far as accused Nos.1 and 5 are concerned, they were not found actually in possession of any yarn Accused No.3 had yarns in his godown but he is simply a godown keeper and therefore even according to the prosecution accused Nos.2 and 6 had come to the godown and accused No.2 had owned up the responsibility of keeping the goods in the godown. Complicity of accused No.3 3 APPLN-3086.09 would be ruled out. The learned Magistrate further held that there was no assay test carried out to conclude that the goods were in fact of a foreign origin. The learned counsel for the Union of India submitted that the learned Magistrate should have seen that the goods were found in the godown of accused No.3 and the complicity of accused Nos.1 and 3 was also indicated by the evidence tendered and therefore seeks leave to file appeal. Perusal of the judgment does not show that the learned Magistrate erred in concluding that there was absolutely no evidence to show the complicity of the three respondents. The Asstt. Public Prosecutor in-charge of the case seems to have relied on the confessional statements of the accused who were not put on trial along with the respondents and the statements recorded under Section 108 of the Customs Act of the persons who were not examined without any good reason for their non-examination. No fault can be found with the reasons recorded by the learned Magistrate. Since the view taken by the learned Magistrate cannot be said to be perverse or improbable, no interference is called for. Leave refused. Appeal dismissed. (R.C. CHAVAN, J.)