IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2011 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.1233 of 2004 Union of India, Rep. By its Assistant Commissioner of Customs, Prosecution Cell, Customs House, Chennai. .. Appellant/Complainant Vs A.S.A.Kabir .. Respondent/Accused Prayer:- Criminal Appeal filed under Section 378 of Cr.P.C., against the order passed in E.O.C.c.No.48 of 1995 dated 08.06.2004 on the file of Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai. For Appellant : Mr.N.P.Kumar, Special Public Prosecutor For Respondent : Mr.B.Kumar, Senior Counsel for Mr.A.Abdul Huck JUDGEMENT This appeal is against acquittal. The challenge is to the acquittal of the respondent in E.O.C.C No.48/95 dated 08.06.2004 on the file of the learned Additional Chief Metropolitan Magistrate, EO.I, Egmore, Chennai – 8. It was a case instituted on a private complaint filed by the appellant alleging that the respondent had committed offences punishable under Section 135(1) (a)and 135(1)(b) of the Customs Act. 2.The brief facts of the case are as follows:- P.W.1 was the Superintendent in the Customs Department at Chennai Port Trust during the year 1993. On 19.03.1993, the then Assistant Commissioner of Customs issued a warrant to P.W.1 to search the premises in Door No.2, Vengupillai Street, Egmore, Chennai, where, the accused/the respondent was residing. Exhibit P.1 is the Search Warrant issued by the Assistant Commissioner. P.W.1 thereafter arranged to go for house search along with P.W.2- Jayakumar and few other Officers. Accordingly, P.W.1 proceeded to the house of the accused on 19.03.1993 at 12.00 noon. After https://hcservices.ecourts.gov.in/hcservices/ informing P.W.1 about his identity and his intention to search as per Exhibit P.1 warrant to the respondent/accused, he along with P.W.2 and other officials, entered into the house and made a search. P.W.4-Mr.Loganathan was then residing in the first floor of the said building. P.W.1 requested P.W.4 and another person by name Mr.Jain Babulal to be witnesses for the house search. Accordingly, they agreed. Then P.W.1 obtained an acknowledgment from the accused to evidence the search. Thereafter, P.W.1 searched the entire house. In the ground floor at the second room, they found a paper baggage. In the presence of the above two witnesses, P.W.1 and the other Officials opened the same and they found 42 gold bars each weighing 10 thollas. P.W.1 enquired the accused about the same. He told that he had no receipts for payment of customs duty for having imported the said gold bars. He also did not produce any other documents pertaining to the gold bars. Therefore, P.W.1 seized the same under a Mahazar. Then he continued the search. In the same room, in a different corner, he found a gunny bag. When he opened the same in the presence of witnesses, he found 6 silver bars. The same were weighing 40.421 kgs, 38.586 kgs, 38.275 kgs 39.258 kgs and 39.939 kgs respectively. He seized the same also under a Mahazar. 3.During trial, P.W.1 has identified 42 gold bars seized from the house of the accused as M.O.1 series. The paper baggage has been marked as M.O.2. The silver bars seized were marked as M.Os.3 to 8. Exhibit P.2 is the Mahazar for the recovery of the same. P.W.4 and Mr.Jain Babulal signed the said Mahazars as witnesses. A copy of the said Mahazar was handed over to the accused. P.W.1 suspected that these articles had been imported into India without paying proper customs duty. Then P.W.1 seized two Inland letters from the house of accused which were marked as Exhibit P.4 series. Then he also recovered a copy of the lease deed (Exhibit P.5) dated 18.05.1992 showing that the accused was residing as a lessee in the said house. When the accused was questioned about the possession of silver bars he produced three receipts showing payment of customs duty. 4.The first baggage receipt is No.15438 dated 05.03.1993 and the same is in the name of one Mr.K.Mohan. According to the said receipt, for 98 kilos of silver, a sum of Rs.49,000/- was paid towards customs duty under (Exhibit P.6) by Mr.Mohan. The second baggage receipt No.15436 dated 05.03.1993 stands in the name of one Mr.G.T.Kumarasamy. Under this bill, for 96 kgs of silver a sum of Rs.48,000/- had been paid as customs duty (Exhibit P.7). The third baggage under receipt No.16015 dated 05.03.1993, is in the name of one Mr.Mathiyalagan. For 100 kgs of silver a sum of Rs.50,000/- had been paid towards customs duty (Exhibit P.8). P.W.1 recovered all these receipts under appropriate Mahazar. 5.Then P.W.1 returned to the Customs Office and handed over all the contrabands to his higher officials. On the same day in the evening as directed by the customs officials at about 4.30 p.m., the accused appeared before P.W.1. He gave a voluntary statement. P.W.1 reduced the same into writing. Exhibit P.10 https://hcservices.ecourts.gov.in/hcservices/ containing 6 pages is the said statement. In the said statement, he gave explanation that the gold boars numbering 42 which were recovered from his house belonged to one Mr.Samsudin Bin-Mohamed. He further told that Mr.Samsudin Bin-Mohamed had brought the same from Singapore on 06.02.1993 by air. He further told that Mr.Samsudin Bin-Mohamed had paid appropriate customs duty for the same. He further told that Mr.Samsudin Bin-Mohamed handed over the gold bars to him for keeping the same under safe custody for the purpose of selling the same in India. He further told that Mr.Samsudin Bin-Mohamed had left India subsequently. In respect of the silver bars he told that Mr.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan referred to in the above receipts (Exhibits P.6 to P.8) had handed over the same to him along with the bills. 6.On 06.04.1993, Mr.Samsudin Bin-Mohamed appeared before P.W.1 and gave a statement. The said statement has been marked as Exhibit P.11. In the said statement, Mr.Samsudin Bin-Mohamed told that he was the owner of the 42 gold bars recovered from the house of the accused. He also told that he brought the same on 06.02.1993 from Singapore by air and also paid appropriate customs duty at the Airport. A receipt under Exhibit P.12 was also produced for payment of the customs duty. 7.According to P.W.1, when he compared the 42 gold bars seized from the house of the accused and the description made in the said receipt-Exhibit P.12, he found that the said receipt had no relevance to the gold bars seized from the house of the accused. As a matter of fact, according to P.W.1, weight of the silver bars mentioned in the receipts did not tally with the silver bars seized. Then he handed over the further investigation to his higher officials. 8.P.W.2 is an Officer who accompanied P.W.1 during the house search of the accused, he has also spoken to the said facts in a vivid fashion. P.W.3 is yet another officer who accompanied P.W.1 during the house search at the house of the accused and he has also vividly spoken about the house search and the recoveries. P.W.4 is the owner of the house where the accused was residing. During the relevant time, he was residing in the first floor of the building. He has deposed to the fact that he was a witness to the house search made by the Customs Authorities and the recoveries made from the house of the accused. P.W.5 is yet another officer who accompanied P.W.1 during house search. He has also deposed to the above facts in details. P.W.6 was a Vigilance Officer in Customs Department at Chennai. He has spoken to about the examination of one Mr.Gajapathy. The statement of Mr.Gajapathy (not examined) is Exhibit P.26. P.W.7 is an officer of the customs Department during the relevant time. He has stated about the issuance of show cause notice to the accused under Exhibit P.27. He has also spoken to about the departmental order dated 17.02.1994. P.W.8 was an Officer working at the office of the Commissioner of Customs in Chennai. He has spoken to the fact that the entire file relating to this case was placed before the Commissioner and the Commissioner, after having gone through the https://hcservices.ecourts.gov.in/hcservices/ entire file and applying his mind, has issued a sanction order for prosecution. The said sanction order is Exhibit P.13. Based on the said sanction order, a private complaint was filed before the trial Court on which, cognizance was taken and the accused was tried. 9.Since the accused denied the acquisitions, in order to prove the allegations, on the side of the prosecution as many as 8 witnesses were examined as detailed above and 30 documents were exhibited. M.Os.1 to 9 are the material objects marked on the side of the prosecution. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same. But he admitted that there was a house search made by P.W.1 and other officials from Customs Department and also the recovery of material objects. His explanation was that the gold bars were handed over to him by Mr.Samsudin Bin-Mohamed and they were already subjected to customs duty. In respect of the silver bars also his explanation was that they were all handed over by three persons namely Mr.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan and they were all already subjected to customs duty. Thus, according to him, he had not committed any offence. 10.Having considered the above materials, the trial Court found that the complainant had failed to prove the case beyond reasonable doubts and accordingly, acquitted the respondent/accused. Challenging the same, the complainant is before this Court with this appeal. 11.I have heard Mr.N.P.Kumar, learned Special Public Prosecutor appearing for the appellant and Mr.B.Kumar, learned Senior Counsel appearing for the respondent/accused and also perused the records carefully. 12.Taking me through the judgment of the trial Court, the learned Special Public Prosecutor appearing for the appellant would submit that the trial Court has acquitted the respondent mainly on three grounds. (i) The first and foremost ground is that it is doubtful that the gold bars seized from the accused and the gold bars produced before the Court as material objects are one and the same. To put it otherwise, according to the trial Court, there is some discrepancy between the material objects produced before the Court and the material objects seized from the house of the accused. (ii)The next ground of acquittal is that the statement made by Mr.Samsudin Bin-Mohamed marked as Exhibit P.11 coupled with the statement of the accused to the Customs Authorities under Exhibit P.10 clearly exonerates the accused from the charges. (iii).The third ground is that Exhibit P.12 receipt has proved that all the 42 gold bars were brought only by Mr.Samsudin Bin-Mohamed by air from Singapore into India and the appropriate https://hcservices.ecourts.gov.in/hcservices/ customs duty was paid. Therefore, according to the trial Court, the prosecution has failed to prove the case. 13.The learned Special Public Prosecutor would submit that all the above grounds stated by the trial Court are perverse. He would submit that absolutely there is no contradiction between the description of the gold bars in the seizure mahazar and the subsequent documents namely show cause notice, sanction order etc. During trial, there was no denial at all that M.O.1 series was seized from the house of the accused. He would further submit that the statement made by Mr.Samsudin Bin-Mohamed to the Customs Authority under Section 108 of the Customs Act, is not at all admissible in evidence because he was not examined as a witness before the trial Court. He would further submit that similarly, the statement of the accused made under Exhibit P.11 is also not admissible in evidence because, it is not a confession. He would further submit that the said statement is only a former statement of a living person and therefore, the same cannot be made use of by the accused for any purpose. 14.The learned Special Public Prosecutor would further submit that Exhibit P.12 baggage receipt standing in the name of Mr.Samsudin Bin-Mohamed has got nothing to do with the gold bars seized from the house of the accused. He would further submit that the description of the gold bars found in Exhibit P.12 receipt do not tally with M.O.1 series. Therefore, the finding of the trial Court in this regard is not correct. To put it otherwise, it is the argument of the learned Special Public Prosecutor that the trial Court has overlooked the acceptable evidence tendered by the prosecution by satisfying all the legal requirements and thus, the judgment of the trial Court is perverse and the same requires interference at the hands of this Court. 15.The learned Senior Counsel appearing for the respondent/accused would however refute all these allegations. According to him, the gold bars seized from the house of the accused have not been produced before the Court. M.O.1 series was not really the gold bars seized from the house of the accused. P.W.1 and the authorities have changed the gold bars so as to show that there has been some discrepancy between Exhibit P.12 and the gold bars produced in the Court. He would further submit that the statement made by the accused to the customs authority is very much admissible in evidence as an "admission" and not as a "confession". The learned Senior Counsel would further submit that under Exhibit P.12, the accused has discharged his burden of proving that M.O.1 series gold bars were lawfully kept by him since appropriate customs duty had already been paid by Mr.Samsudin Bin-Mohamed to the customs authorities. The learned Senior Counsel would nextly contend that the charges framed by the trial Court are defective and the same has caused failure of justice to the accused. He would further submit that the sanction order is also defective inasmuch as it reflects total non application of mind on the part of the Sanctioning Authority. He would also make a comment about the non examination of the https://hcservices.ecourts.gov.in/hcservices/ Commissioner who had given sanction order. The learned Senior Counsel would further submit that the offence under Sections 135 (1)(a) and 135 (1)(b) of the Customs Act, will not go together in the given facts alleged by the prosecution. In so far as the charge under Section 135(1)(a) of the Act, is concerned, unless, it is alleged in the charge itself that the gold bars were imported by the accused without paying customs duty by evading the same. Thus, the charge itself is erroneous and therefore, the conviction of the accused for offence under Section 135(1)(a) of the Act, is not sustainable, he contended. 16.In so far as the charge under Section 135(1)(b) of the Act is concerned, it is the contention of the learned Senior Counsel that unless there is an allegation that the accused had knowledge that the material objects in question were not subjected to customs duty, the said offence also would not be attracted. Thus, according to the learned Senior Counsel, neither can there be any conviction under Section 135(1)(a) of the Act nor under Section 135(1)(b) of the Act. 17.I have considered the rival submissions. 18.There is no denial of the fact that P.W.1 and other officials made a house search at the house of the accused on the crucial date. There is also no denial of the fact that 42 gold bars and 8 silver bars were seized from the house of the accused. It is also not denied by the accused that the said 42 gold bars and 8 silver bars were possessed by him. 19.Now the question is whether the gold bars seized from the house of the accused were produced before the Court or there was a change in the material objects that were produced before the Court as it is contended by the learned Senior Counsel. For this, we have to look into the evidence of P.W.1. P.W.1 even in his chief examination has clearly stated that M.O.1.series namely 42 gold bars were seized from the house of the accused. He has identified M.O.1 series, as the gold bars which were seized from the house of the accused. In cross examination, there is no dispute at all raised by the accused disputing the said fact spoken to by P.W.1. When a specific query was made to the learned Senior Counsel as to why this fact was not disputed by the defence, the learned Senior Counsel has no answer to submit to the Court. Thus, the fact remains that there was no denial of the fact spoken to by P.W.1 that M.O.1 series namely 42 gold bars were the ones seized from the house of the accused. 20.The learned Senior Counsel would however take me through the recovery mahazar where there is no detailed description given about the gold bars which were seized from the house of the accused. He would take me through the show cause notice to show that the customs authorities improved the case by making the description of the gold bars in the said statement so as to defeat the defence of the accused that Exhibit P.12 covers these gold bars. https://hcservices.ecourts.gov.in/hcservices/ 21.In my considered opinion, this argument is not available for the defence to make for the simple reason that the accused had not denied by way of cross examination when P.W.1 tacitly and vividly had spoken to the fact that M.O.1 series namely 42 gold bars were the ones seized from the house of the accused. If only the above fact spoken to by the said witness is disputed, the said disputed question of fact should be adjudicated upon for which the Court may have to look into the other materials like Mahazars, show cause notice, sanction order etc. 22.But in this case, since the fact that M.O.1 series were seized from the house of the accused by P.W.1 and other officials of Customs was not at all disputed, there is no occasion for this Court now to adjudicate upon all these aspects. 23.Then we have to look into the statement made by the accused under Section 313 Cr.P.C. For the first question relating to 42 gold bars and the seizure of the same from the house of the accused, the accused had no denial. Question No.2 under Section 313 Cr.P.C., is in respect of the evidence of P.W.1 wherein he had stated that M.O.1 series 42 gold bars were seized from the house of the accused. When this evidence was brought his notice, the accused admitted the same. However, he has stated that he had receipts for the same. The third question is under Section 313 Cr.P.C., is more specific about M.O.1 series as well as the silver bars. In the same question, in respect of M.O.2, it has also been put to the accused about the silver bars. For the said question, the accused admitted the facts. He did not deny. Thus it is crystal clear that when P.W.1 identified M.Os.1 and 2, the accused did not deny the same and when the accused was questioned under section 313 Cr.P.C., also he did not deny the same. Thus, it is an admitted fact by the accused that M.O.1.series namely 42 gold bars and M.O.2 series the silver bars were the ones seized from his house. 24.The learned Special Public Prosecutor would submit that in the confiscation proceedings, the accused claimed M.O.1 series as the one seized from his house. But confiscation order was passed against him. Thereafter, the matter went upto the Hon’ble Supreme Court. But the accused lost there also. Making such a statement, the learned Special Public Prosecutor would submit that it is too late in the day for the accused now to say that M.O.1 series was not the gold bars really seized P.W.1 and other officers of Customs from his house. In my considered opinion, this statement of the learned Special Public Prosecutor cannot be considered because it is extraneous to the facts of the case. It is the fundamental principle of law that any material which is not available on record and brought to the notice of the accused under Section 313 Cr.P.C., cannot be used against him at all. As of now, I do not have any record of the confiscation proceedings and the result thereon. However, the learned Senior Counsel for the respondent does not dispute the correctness of the said statement of the learned Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ 25.For the foregoing discussions, I have no hesitation to hold that the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Customs Act, there bas to be a legal presumption of culpable mental state raised against the accused. The said provision reads as follows:- “138-A Presumption of culpable mental state.-(1)In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that eh had no such mental state with respect to the act charged as an offence in that prosecution. Explanation-In this section, “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2)For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.” 26.Therefore, in the case on hand, applying the said legal provision, it has to be presumed that the accused had knowledge of the fact that the gold and silver bars seized from his house were not subjected to customs duty. Of course the said presumption is rebuttable and it will not amount to conclusive proof. It is also the law that a rebuttable presumption can be rebutted either by letting positive evidence or by brining on record the materials during cross examination or by producing the same as documentary evidence. Therefore, now we have to see whether the accused has discharged his burden of rebutting the said presumption. 27.The learned Senior Counsel would submit that Exhibit P.12 receipt clearly discharges the burden of the accused to rebut the said presumption. In my considered opinion, it is not so. A close perusal of Exhibit P.12 would go to show that it is nothing but a challan issued by the State Bank of India, Chennai for payment of a sum of Rs.1,07,800/- as customs duty for 42 numbers of gold bars totally weighing 4900 gms. The description of gold bars is mentioned as “SUCSSE”. The learned Senior Counsel would submit that the expression “SUCSSE” refers to the country from where it is imported. The said receipt was issued on 06.02.1993. The learned Senior Counsel would submit that under this receipt Mr.Samsudin Bin-Mohamed had imported the above gold bars from https://hcservices.ecourts.gov.in/hcservices/ “SUCSSE” by air, paid the customs duty, brought the same and handed over the same to the accused. The question now is whether this receipt has got any relevance to M.O.1 series. It is the contention of the appellant that the said receipt has got nothing to do with M.O.1 series. In order to ascertain the same, we have to look into the description of the property made in the receipt. 28.As I have already stated, except the description “SUCSSE”, there is nothing else is found. It cannot be argued before this Court that the term “SUCSSE” will refer only to 42 gold bars and the same will not be referable to any other gold bars. It is not in dispute that the name “SUCSSE” is a common name which will be indicated in all gold bars which are imported from “SUCSSE”. Therefore, from this description, it cannot be safely concluded that M.O.1 series are referable to this receipt. 29.Nextly, there is one person who can speak about