* 1 * Cri.Appln.1204.2010 20.7.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1204 OF 2010 Union of India Through : Assistant Commissioner of Customs ....Applicant V/S. 1. Shri. Jolly Pereppadan Anthony ....Respondents * * * * Mr. D.N. Salvi, Advocate for the applicant. Mrs. A.S. Pai, APP for the State. CORAM :- Smt. R.P. SondurBaldota, J. 20th July, 2011. P.C. :- 1. The Union of India by this application seeks leave to challenge the correctness and legality of the judgment and order dated 4th September, 2009 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai acquitting respondent no.1 for the offence punishable under Section 135(1) (a) read with Section 135(1)(ii) of the Customs Act. 2. On 15th April, 1997 respondent no.1 alongwith the absconding accused- Keshavlal Jain was found near Electric House, Colaba carrying unaccounted foreign currency of US$ 21,600 wrapped in a packet. In * 2 * Cri.Appln.1204.2010 20.7.2011 his statement under Section 108 of the Customs Act respondent no.1 admitted that he and his co-accused were dealing with foreign currency with the help of one Ashraf. The adjudication proceedings were held by the Deputy Commissioner of Customs in which the seized foreign currency was confiscated alongwith the Indian currency seized and penalty of Rs.40,000/- on respondent no.1, of Rs.30,000/- on the absconding accused and of Rs.10,000/- on Mohd. Ashraj Ismail was imposed. Then, as late as on 6th April, 1999 complaint under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act and Section 120B Indian Penal Code came to be filed. The case against the absconding accused was separated in the year 2001 and the trial proceeded only against respondent no.1 3. In the trial, the prosecution examined four witnesses i.e. Inspector of Customs (P.W.1), Superintendent of Customs (P.W.2)- one Mohd. Ashraf Ismail (P.W.3) and one Joseph Ittayara (P.W.4). The two independent witnesses-P.W.3 and P.W.4, however, failed to identify respondent no.1 in Court. Besides, name of respondent no.1 is not mentioned on the challan prepared by the Customs authorities. The Trial Court found that the evidence of P.W.1 and P.W.2 was inconsistent with the evidence of P.W.3 and P.W.4. As regards the statement of * 3 * Cri.Appln.1204.2010 20.7.2011 respondent no.1 under Section 108 of the Customs Act, he had retracted the same at the appropriate time as seen from the application at Exhibit.D-1. In these circumstance, the trial Court held that the evidence brought by the prosecution against respondent no.1 is not sufficient to prove that respondent no.1 was found in possession of US Dollars or that he was knowingly concerned in the fradulent evasion or attempt at evasion of the prohibition of import of foreign currency. 4. I have perused the impugned judgment and the evidence. I find that the observations of the Trial Court are fully borne out by the record. Infact, in the evidence produced by the prosecution before the Court no decision other than acquittal was possible. Therefore, there is no merit in the appeal. Hence, the same is dismissed. [SMT. R.P. SONDURBALDOTA, J]