IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.Rev.Pet.No. 1123 of 2000() ------------------------------ CRA.213/1998 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.101/1990 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER/1ST APPELLANT/ACCUSED NO.2: ----------------------------------------------------------- M. APPUKUTTAN, S/O. NARAYANAN MANAYANI, AGED 35, NECHIPADAPPU, III/18, KARADUKKA PANCHAYATH, MULLERY P.O., KASARGODE DISTRICT. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS/RESPONDENTS/COMPLAINANT & ANOTHER: ----------------------------------------------------------------- 1. THE ASSISTANT COLLECTOR, SPECIAL CUSTOMS, PREVENTIVE DIVISION, CALICUT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.PRAVEEN KUMAR FOR R1 SRI.N.NAGARESH, ADDL.CGSC FOR R1 SRI.JOHN VARGHESE, ASSISTANT SG FOR R1 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 SRI.P.C.IYPE, SPL.PP, CUSTOMS & CENTRAL FOR R1 PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2009 ALONG WITH CRL.RP. NO.1127 OF 2000, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.1123 of 2000 & Crl.R.P.No.1127 of 2000 ----------------------------------------- Dated this the 6th August, 2009 O R D E R These revision petitioners (accused 2 and 4) along with two more persons were charge sheeted for offences under Sections 135(1) of the Customs Act and 85(1) of the Gold (Control) Act. After trial, learned Magistrate convicted second accused and sentenced to undergo rigorous imprisonment for one year and also to pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for a further period of six months. 2. Fourth accused was also convicted and sentenced to undergo rigorous imprisonment for three months and also to pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for a further period of three months. The said conviction and sentence were challenged in appeal and Additional Sessions Court confirmed conviction and sentence passed against them. Hence, these two revisions. Crl.RP.1123 & 1127/00 2 3. According to prosecution, third accused was engaged in importing contraband gold to India. The first accused was his driver. He decided to conceal consignment of gold biscuits which he was transporting on behalf of third accused, since first accused was underpaid in connection with transportation. This was done with a view to pressurise third accused to pay a sum of Rs.5 lakhs. 4. Accordingly, on 17.10.1986, the car driven by first accused from Karnataka State to Kasaragod in Kerala was diverted by first accused to residence of second accused and secreted the illicit gold in the possession of second accused. Accused 2, 4 and 5 got involved in sale of illicit gold to sixth accused and others. During trial, first accused expired and the charge against him abated. The third and 6th accused were acquitted. Accused 2 and 4, were convicted. 5. To prove the prosecution case, prosecution examined Pws 1 to 16 and marked Exhibits P1 to P49. The accused marked Exhibits D1 to D6 on their side. Both the courts below found on the basis of evidence and the unretracted confession made by second and fourth accused that Crl.RP.1123 & 1127/00 3 prosecution proved its case. 6. Learned counsel for revision petitioners submitted that the role of second accused is limited and he was not involved in transporting the contraband articles and he is not involved in smuggling. The gold ornaments, which are allegedly recovered from his house were handed over to first accused even as per the allegations of the prosecution. Therefore, he had no criminal intention to commit the offence, it is argued. The evidence given that the fourth accused helped second accused to dispose of the gold is not sufficient to convict him under Section 135(1) of the Customs Act or under Section 85(1) of the Gold Control Act, it is submitted. 7. The evidence with respect to possession of the gold ornaments by second accused was not appreciated by the courts below in proper perspective, it is submitted. Regarding fourth accused, it is submitted that statement under Section 108 of the Customs Act was retracted, but lower court proceeded as if it was not retracted. It is also submitted that there is no evidence to show that the house from where gold was seized belongs to the second accused. As far as fourth Crl.RP.1123 & 1127/00 4 accused is concerned, no gold was seized from his possession and oral evidence will not suffice to hold that fourth accused helped second accused to dispose of the gold. 8. Learned Special Prosecutor appearing for first respondent submitted that there is no impropriety or illegalilty in the concurrent findings entered into by courts below and in a revision, this Court cannot set aside such concurrent findings, unless there is some perversity. No perversity is pointed out by the revision petitioners, it is submitted. 9. On hearing both sides and on going through the judgments of the courts below, I find that trial court considered evidence of all the witnesses at length in the judgment. The appellate court found that the conclusions arrived at by the trial court can only be upheld. The trial court found that in Exhibit P5 at page 3, second accused admitted recovery of 273 gold biscuits on different occasions from his house by the Customs officials. 10. In page 17 of Exhibit P15, second accused admitted that on 9.11.1986, 200 gold biscuits were recovered from his house by the officials and he had suppressed the details of 73 Crl.RP.1123 & 1127/00 5 gold biscuits thinking that subsequently he could appropriate them. In Exhibit P15 at page 11, he also admitted that out of the total 848 gold biscuits, which were kept separately in 8 packets himself and first accused had set apart 300 gold biscuits for them and it was out of the said 300 gold biscuits were seized by the Customs officials etc. 11. Fourth accused in his confession statement disclosed incriminating evidence against him. Regarding possession and seizure of contraband articles from his house, evidence was adduced through witnesses, who were connected with the search and seizure. The court below found that there is no reason to reject their evidence. It was also found that there is absolutely nothing on record to reject the confession made by the fourth accused to the Customs officials, especially since it is not retracted. 12. Regarding the involvement of fourth accused in the crime, both the courts placed reliance upon Exhibit P14, confession statement made by him recorded under Section 108 of the Customs Act. In the said statement, fourth accused admitted that second accused is his maternal aunt and that the Crl.RP.1123 & 1127/00 6 house of accused 2 and 4 are situated nearby and he used to visit the house and spend time there. He also stated that first accused came to the house of second accused and requested to conceal the gold while fourth accused was present there. 13. The first accused brought 11 packets containing gold, which were concealed under the back seat of a Fiat car and the second and fourth accused together removed the said gold biscuits and concealed it inside a big earthen pot burned in a pit situated at the backside of the house of second accused and again it was concealed under the seat of a car. It is also seen from his confession statement that out of the three packets, two were cut open and they contained 100 gold biscuits each. Those were again concealed in different places. 14. The fourth accused assisted first and second accused in concealing the contraband articles and it was not retracted by the fourth accused, the courts found. The courts believed evidence of witnesses who spoke about the confession and other incriminating evidence against the fourth accused. The courts below found that recovery of gold ornaments from residence of second accused is revealed by evidence of PW1, Crl.RP.1123 & 1127/00 7 PW5 and PW10. The confession statement given by second accused, Exhibits P5 and P15 stood unretracted. 15. The confession statement is corroborated by the evidence of PW1, PW5 and PW10. Regarding evidence against fourth accused, the court below relied upon Exhibits P9, P36 and P40, which are the confession statements given to the Customs officials, which were recorded under Section 108 of the Customs Act. The statements were proved by PW1 and PW3. The said statements are not retracted. 16. The confession statements of accused 2 and 4 coupled with the testimony of PW1, PW3, PW5 and PW8 to PW11 and other witnesses would establish that the accused committed the offence beyond reasonable doubt, is the finding entered into by the lower appellate court. On hearing both sides, I do not find any reason to interfere in the concurrent findings of facts arrived at by the trial court and appellate court and a bare contention that confession statement is not retracted will not help the accused. The seizure of the contraband articles from house of second accused coupled with his confession is sufficient to hold that those were seized from Crl.RP.1123 & 1127/00 8 his possession. The courts below have considered all the contentions and entered findings of facts in the right perspective and those cannot be said to be perverse. Those findings cannot be said to be unreasonable and hence conviction is only sustainable. The sentence also cannot be said to be excessive, considering the gravity of offences. Hence, both the Revision Petitions are dismissed. Sd/- K.HEMA, JUDGE vgs. /True copy/ P.A to Judge Crl.RP.1123 & 1127/00 9 K.HEMA, J. ------------------------------ Crl.R.P.NO.1123 of 2000 & Crl.R.P.No.1127 of 2000 ------------------------------ O R D E R 6.8.2009