IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.REV.PET.NO. 1212 OF 2001(A) ----------------------------------------------- CC.162/1988 OF ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM CRA.184/1997 OF I ADDL.SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER(S) – APPELLANT – ACCUSED NO.1: --------------------------------------------------------------------- CHITTILAPPALLY SEBASTIAN BABU, S/O. C.T. SEBASTIAN, CHITTILAPPALLY, THOMMANS HOUSE, ST. MARY'S ROAD, IRINJALAKUDA, THRISSUR. BY ADV. SRI.B.RAMAN PILLAI RESPONDENT(S) - COMPLAINANT: -------------------------------------------- THE ASSISTANT COLLECTOR, AIR CUSTOMS, AIRPORT, THIRUVANANTHAPURAM, REPRESENTED BY THE CENTRAL GOVERNMENT STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC FOR R1 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1212 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009 O R D E R -------------- Question raised for a decision in this revision petition at the instance of accused is whether presumption under Section 138A of the Customs Act (for short, “the Act”) has been rebutted by him. Petitioner along with two others were charge-sheeted for offences punishable under Secs.132 and 135(1)(i) of the Act for allegedly smuggling 67 gold biscuits of 24 carrot market value of which is assessed to be Rs.18,65,280/- without declaration and payment of duty. Accused Nos.2 and 3 were not available for trial. Petitioner- accused No.1 faced trial and was convicted for offence punishable under Sec.135(1)(i) of the Act. He was sentenced to undergo rigorous imprisonment for 3 years and payment of fine of Rs.40,000/-. He was acquitted of the charge under Sec.132 of the Act. Sentence and conviction were confirmed by learned First Additional Sessions Judge, Ernakulam in Crl. Appeal No.184 of 1997. 2. Facts of the case necessary for decision of the revision petition are: Petitioner was employed in Abu Dabi as a driver. On 23.12.1986 for the purpose of returning to his native place he came to the Airport at Thiruvananthapuram by Air India flight from Abu Dabi. CRL. R.P. No.1212 of 2001 -: 2 :- On 29.12.1986 he went to the air cargo complex attached to the Airport at Thiruvananthapuram for collecting his unaccompanied air baggage. On examination of that baggage it was found by the authorities that in a plywood box, apart from the personal belongings, in concealed cells 67 gold biscuits were kept. Petitioner was arrested at the spot. His statement was recorded under Sec.108 of the Act. Based on the information given by petitioner, accused Nos.2 and 3 were summoned and their statements were also recorded. It is accordingly that accused Nos.2 and 3 were also implicated in the case. It is contended by learned counsel that presumption under Sec.138A of the Act has successfully been rebutted by petitioner by adducing evidence and bringing out circumstances from the evidence of prosecution witnesses. Learned counsel placed reliance on the decision in Asst. Collector v. Pavunni (1988(2) KLT 194) which is confirmed by the Supreme Court in Pavunny v. Assistant Collector (1997 (1) KLT 489 (SC). Learned counsel contends that statement recorded by the Customs Authorities under Sec.108 of the Act is substantive evidence and hence Ext.P6 has to be accepted so far it is not shown to be incorrect. 3. Facts which are not in dispute are; petitioner came from Abdu Dabi by air to the Airport at Thiruvananthapuram on 23.12.1986 CRL. R.P. No.1212 of 2001 -: 3 :- and on 29.12.1986, the unaccompanied baggage sent in the name of petitioner reached in the Airport. On petitioner producing Ext.P5, airway bill, baggage was taken for the purpose of being released to the petitioner. On examination of the baggage with a metal detector it was learnt that the bag contained gold and accordingly it was opened. Inside the bag in a plywood box in concealed cells 67 gold biscuits were found. Exhibit P1 is the International passenger baggage declaration given by petitioner when he came to the Airport on 29.12.1986 to clear the unaccompanied baggage. Exhibit P2 is the assay certificate issued by P.W5, gold dealer. Exhibit P3 is the mahazar for seizure of the contraband and other articles on 29.12.1986. Exhibit P5 is the airway bill produced by petitioner at the air cargo complex at Thiruvananthapuram Airport for release of the unaccompanied baggage. Exhibit P6 is the statement of petitioner recorded by Superintendent of Customs (P.W.2) on 29.12.1986. P.W.1, Superintendent of Air Customs stated about the incident and he effected the seizure as per Ext.P3. P.W3 is the Porter who brought the unaccompanied air baggage for examination by the authorities as directed by them. He is also an attester in Ext.P3, mahazar. P.W4 is an Officer of Customs. He proved Ext.P1, declaration given by petitioner and Ext.P5, airway bill produced by CRL. R.P. No.1212 of 2001 -: 4 :- petitioner. According to the petitioner he was working as a driver in Royal Flour Mill at Abu Dabi on a salary of Rs.2,000/-. His passport was with his sponsor, an Arab. A few days before 23.12.1986 the sponsor approached petitioner and told him that he wanted to appoint a driver for his purposes and hence visa of petitioner is being cancelled. So petitioner decided to return to his native place. While so, he came into contact with Mohammed Ali, accused No.2. Mohammed Ali asked petitioner what all things petitioner intended to take with him. Petitioner stated that he has no money with him for payment of duty and hence he is taking only his personal belongings like cloths, radio, kettle, etc. Then Mohammed Ali asked him whether he could take with him a telephone and other articles belonging to him also and offered to pay the entire air cargo charge. Petitioner agreed to the same. Accordingly as instructed by Mohammed Ali, petitioner handed over his personal belongings (cloths, radio, kettle, etc.) in a Dunhil carton box to the said Mohammed Ali. Mohammed Ali offered to take the same with his own articles and send by air cargo. On 23.12.1986 petitioner left Abu Dabi, and reached Airport at Thiruvananthapuram by 6.00 a.m the following day. On 24.12.1986 he reached his native place at Irinjalakuda. On 26.12.1986 Aboobacker (accused No.3) came to his house and told him that Mohammed Ali CRL. R.P. No.1212 of 2001 -: 5 :- also has reached his native place, the unaccompanied baggage sent in the name of petitioner has reached cargo complex at Thiruvananthapuram Airport and Mohammed Ali wanted petitioner to go there and collect it. Accordingly petitioner along with accused No.3 went to Thiruvananthapuram by train. Petitioner took with him telephone numbers of some political leaders which was given by his father, himself a local leader of that political party since, if petitioner had any problem at the Airport he could contact those leaders. Petitioner and accused No.3 came to Thiruvananthapuram and stayed in Swapna Tourist Home where accommodation was arranged for them by Mohammed Ali. Then Mohammed Ali came there and on the next day petitioner along with accused No.3 and Mohammed Ali (accused No.2) went to one Imam where Mohammed Ali talked to the said Imam. Thereafter they went to Dancer Thampi where Imam talked something to Dancer Thampi. From there, petitioner came back to the Imam and on 29.12.1986 they went to the Air cargo complex where Mohammed Ali was waiting for them. Mohammed Ali handed over Ext.P5, airway bill to the petitioner. At about 1.30 p.m., name of petitioner was announced for clearance of the unaccompanied baggage. Petitioner identified the baggage with reference to his name written on the baggage. He handed over Ext.P5 to the Officer CRL. R.P. No.1212 of 2001 -: 6 :- concerned. Plywood box was opened and then only he learnt that it contained gold biscuits. He claimed that he is innocent and that he was cheated. 4. Petitioner examined the said Imam as D.W.1. Exhibits D1 and D2 are statements of D.W.1 recorded by the customs officials first on 31.12.1986 and then on 16.1.1987. Though in the first statement Imam, (D.W.1) was not prepared to admit whatever petitioner had claimed when further questioned on 16.1.1987 (Ext.D2) he stated that petitioner and accused Nos.2 and 3 approached him and that he had taken petitioner to Dancer Thampi. It is also stated by D.W.1 that Ext.P5, airway bill was with accused No.2 (Mohammed Ali) till it was entrusted with petitioner for clearance of the unaccompanied baggage on 29.12.1986. Customs officials sent Ext.D6, notice to the petitioner asking him to clear the telephone that was kept in the plywood box which came to the cargo complex in the name of petitioner. He sent Ext.D5, reply stating that the telephone did not belong to him and hence he is not clearing it. According to the petitioner, that belonged to accused No.2 (Mohammed Ali) and was sent along with his personal belongings in the unaccompanied air baggage. 5. Courts below found that evidence on record revealed that CRL. R.P. No.1212 of 2001 -: 7 :- petitioner was in possession of the contraband which admittedly was not declared in the declaration given by petitioner and for which no duty also was paid. Courts below relied on the presumption under Sec.138A of the Act. It was also observed that contention of petitioner that he was unaware of concealment of gold biscuits in the plywood box cannot stand since the very fact that petitioner had carried with him telephone numbers of some political leaders indicated that he expected some trouble at the cargo complex. Courts below therefore did not accept the explanation of petitioner. 6. No doubt, Sec.138A of the Act provides for a presumption regarding possession. In the decision relied on by learned counsel (Asst.Collector v. Pavunni) referring to presumption under Sec.138A of the Act it was held that if goods are found in the premises belonging to or in the possession of the person concerned there cannot be presumption that he is in possession of the goods knowingly or intentionally. The Supreme Court has held in Madan Lal v. State of H.P. (2003) SCC (Cri.) 1664) regarding presumption under the Narcotic Drungs and Psychotropic Substances Act that once possession is proved with the accused, it is for him to show that he had no conscious possession of the contraband. The reason is that question whether contraband was in the conscious possession of CRL. R.P. No.1212 of 2001 -: 8 :- accused is something which he alone can disclose. Therefore once burden of proving that petitioner was in possession of the contraband is proved necessarily onus shifted to him to show he had no conscious possession, and as to how that onus of proof can be rebutted, authorities say that it is not necessary that petitioner need not adduce direct evidence and instead can depend on circumstances arising in the case of prosecution. It is sufficient that possibility of his version also is true. The onus that petitioner has to discharge is not as heavy as that of prosecution in proving its case beyond reasonable doubt. Based on that principle I shall consider whether petitioner was able to show that he had no conscious possession of the contraband. 7. Statement of petitioner (Ext.P6) recorded under Sec.108 of the Act is substantive evidence. If that statement could be used against petitioner, there is no reason why circumstances if any made out in his favour in it could not be looked into. Going by Ext.P6, statement petitioner was working abroad drawing a salary of Rs.2,000/- per month and it was on his visa being cancelled that he was compelled to return to his native place. He stated that since he was not possessed of money to pay duty for his personal belongings he thought that he could send the personal belongings as CRL. R.P. No.1212 of 2001 -: 9 :- unaccompanied air baggage, come to his native place at Irinjalakuda, collect the amount for duty payable and clear the unaccompanied baggage. It is then that accused No.2, Mohammed Ali offered him to pay duty provided his personal belongings are also sent in the very same unaccompanied baggage which petitioner agreed. This fact is disclosed by evidence of D.W.1 and Exts.D1 and D2 that it was Mohammed Ali who had kept the airway bill (Ext.P5) until it was handed over to the petitioner for clearance of the baggage on 29.12.1986. Evidence show that following petitioner, Mohammed Ali also reached his native place and sent accused No.3, Aboobacker to the petitioner to inform the latter that air baggage is ready and petitioner should go and collect it. Evidence of D.W1 shows that accused No.3 also had come to Thiruvananthapuram Airport for the purpose. Therefore that Mohammed Ali had the lead role in the matter is not disputed and is on record. 8. Even as per the evidence of prosecution, the gold biscuits were valued at Rs.18,65,280/-. On going through the evidence I am not inclined to think that petitioner would have had any role in its purchase, for, his salary stated in Ext.P6 which is not shown to be incorrect was only Rs.2,000/- and he was finding it difficult for paying duty for his personal belongings which required him to think of sending CRL. R.P. No.1212 of 2001 -: 10 :- his personal belongings by unaccompanied baggage. It is also revealed from the evidence of D.W.1 and Exts.D1 and D2 that he had been to Abu Dabi and was there during 2.8.1986 to 27.10.1986. Petitioner has got a case that though involvement of D.W.1 was disclosed by him, authorities did not take action against D.W.1 under pressure. True, officials of the customs department examined in the case denied that. But they stated that D.W1 was questioned with reference to the matter. 9. One circumstance which the courts below took into consideration to hold that petitioner had conscious possession of the contraband is that he was carrying telephone number of some political leaders. According to the petitioner those numbers were given by his father who himself is a local political activist to get some assistance from the leaders father knew in case he had any trouble at the air cargo complex. From that I am unable to think that the only inference possible is that petitioner was expecting trouble as gold biscuits were in the plywood box. It is equally possible that anticipating some delay or snag in getting clearance petitioner could get some help from those leaders and hence father gave telephone numbers to the petitioner. 10. Yet another circumstance in favour of petitioner is that as per evidence he has studied only upto the 8th standard and on CRL. R.P. No.1212 of 2001 -: 11 :- 29.12.1986 at the earliest point of time petitioner has disclosed the entire matters to the customs officials as seen from Ext.P6. On going through Ext.P6 which is in the handwriting of petitioner it is seen that even words (in Malayalam) are not properly written. I am unable to think that a detailed statement like Ext.P6 taking up his defence immediately on being caught on 29.12.1986 would come from petitioner unless he was speaking the truth. On considering all these aspects I am inclined to think that petitioner was duped when his own personal belongings were sent by unaccompanied air baggage by those who promised to help him. At least in considering whether petitioner has proved that he had no conscious possession of the contraband, benefit of doubt must be given to him. If that be so, finding of courts below that petitioner had conscious possession of the contraband cannot stand. It follows that conviction and sentence of petitioner cannot be sustained. Revision petition succeeds. Conviction and sentence of petitioner for offence punishable under Sec.135(1)(i) of the Act are set aside and he is acquitted of that charge. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.1212 of 2001 -: 12 :- THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.1212 OF 2001 =================== O R D E R 13TH AUGUST, 2009