1 APEAL.114/1991 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 114 OF 1991 State of Maharashtra ...Appellant. Vs. Amalio Simoes ...Respondent. Khandwalla Apts., 1st floor, Vakola Pipe Line, Santacruz (W), Bombay-55. Smt. A.A. Mane, for the Appellant. Mr. Ganesh Gole, for the Respondent. --- CORAM : J.H. BHATIA, J. DATE : 22nd November, 2010. JUDGMENT: The appeal is preferred against acquittal of the accused by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplance, Bombay in Case No.27/CW/88 for the offences punishable under sections 135(1)(a)(i) and section 135(1)(b)(i) of the Customs Act, 1962 read with section 13(2) and section 18(1) read with section 67 of the Foreign Exchange Regulation Act, 1973 (in short ‘FERA Act’). 2 APEAL.114/1991 2] The prosecution’s case in brief is that as per information received by the Intelligence Unit of Bombay Customs Preventive Collectorate, accused/respondent -Amalio Simoes had arrived at Bombay on 14.2.1987 with gold bards of foreign origin and had sold it and that he was residing in the Zeni house, 2nd Marine Street, Dhobi Talao, Bombay. In the light of said information, the Customs Officers along with two independent witnesses went to the said Zeni house, when the accused was coming out of the house. Initially on inquiry, the accused denied that he had brought any gold of foreign origin or had valuable foreign articles, in respect of which no Custom duty was paid. Being not satisfied with his reply, the custom officers showed him search warrant and thereafter searched the premises in the presence of the two independent panch witnesses and the accused. During the search, 172 notes each of 500 UAE Dirhams and 31 notes each of 500 Quatar Riyals along with Indian currency of Rs.31,400/- were found. The total value of foreign and Indian currency was Rs.3,61,275/-. The said currency was seized. The accused confessed that the said foreign and Indian currencies belonged to him and he had received the same 3 APEAL.114/1991 as sale proceeds of the gold bars of foreign origin, smuggled by him during his last visit to Bombay from Dubai as a member of the crew of M.V. Orient Express. He also admitted that he evaded the custom duty. The accused had no licence or permit from Reserve Bank of India for import of gold or to hold foreign currency. His statement under section 108 of the Customs Act, 1962 was recorded by the customs officers, wherein he admitted above fact. Thus, he has violated the provisions of Customs Act as well as the provisions of sections 13(2) and 18((1) (A) of the FERA Act. On the basis of these fact, after obtaining necessary sanction, complaint was filed and the charges were framed against the accused. 3] He pleaded not guilty. According to accused he was residing at Satacruz and not at Zeni house. That room in Zeni house was allotted to Santano Fernandes, who was occupying the same. He was proceeding to Santacruz when he was intercepted by customs officers and he has been falsely implicated in the case. 4] On behalf of the prosecution four witnesses were examined. They were P.W. No.1-Abhijit Gangopadhyay, PW.No.2-T.S. Jairam who were the Customers Officers, and other two independent 4 APEAL.114/1991 witnesses residing in that locality i.e. P.W. No.3-Lawrance B. Martin and P.W. No.4-Krishnappa N. Malape. The P.W. No.1-Abhijit Gangopadhyay and PW.No.2-T.S. Jairam supported the prosecution in respect of the search, seizure as well as statement of the accused recorded by PW.No.2- T.S. Jairam. However, both independent panch witnesses did not support the prosecution. The P.W. No.3-Lawrance B. Martin specifically admitted that during that period the accused was residing at Santacruz and P.W.No.4 admitted that one Santano Fernandes was residing in that room in Zeni house. During the search of the house certain documents including one electric bill and photograph were seized. The electric bill was received in January 1987 i.e. during the month prior to this search. That bill was in the name of accused. It only indicated that the electric meter of that room in Zeni house was standing in the name of accused. The photograph, which was recovered from the room was of Santano Fernandes and some other persons and not of the accused. These documents do not provide much support to the prosecution, particularly in view of the statements 5 APEAL.114/1991 of P.W. No.3-Lawrance B. Martin and P.W. No.4-Krishnappa N. Malape which to show that accused was not residing there. Both independent witnesses were declared hostile by the prosecution. 5] As per the evidence of P.W.2 T.S. Jairam, who recorded the statement under section 108 of the Customs Act the accused admitted that during his previous visit as a member of the crew of M.V. Orient Express he had smuggled the gold bars and he had disposed of the same and received foreign currency, which was kept in the brief-case, which was seized during the search of the said Zeni house. However, according to the accused he had never made such statements and same was falsely recorded. It has been brought on record that he can read and write English and he wanted to record his statement in his own handwriting. That opportunity was not given to him and it was recorded a scribe Officer of the Customs department. The trial court noted that the said statement was allegedly recorded on 15th February, 1987 and the accused had retracted from his statements on 21st February, 1987 and again on 3rd March, 1987. In view of this, it appears that the retraction was almost immediate. It is settled position of the law that the statement under section 108 of Customs Act is 6 APEAL.114/1991 admissible in evidence. However, if the said statement amount to confession and retracted, though it can be acted upon, it needs some corroboration from the independent sources to be a basis for conviction. In the present case, admittedly no gold bars were seized from the accused and about the import of the gold bar of foreign origin, except the retracted statement of the accused, there was no evidence. In view of this, it would be difficult to hold that the prosecution has proved that the accused had imported gold bars of foreign origin and that the amount found in the brief-case was the sale proceeds of the said gold bars. 6] The trial court noted that when there is breach of provisions of sections 13 and 18 of the FERA Act, no Court shall take cognizance except upon the complaint by the Director of Enforcement or by a officer authorised in writing in this behalf by the Director of Enforcement or the Central Government or officer of the Reserve Bank authorised by the Reserve Bank of India. However, the trial court missed the provisions of sections 13 and 67 of the FERA Act. Under 7 APEAL.114/1991 section 13 of FERA, the Central Government may, by notification in the Official Gazette, order that, subject to such exemption, if any, as may be specified in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed, bring or send into India any foreign exchange or any Indian currency. Section 67 of FERA provides that the restrictions imposed by or under section 13 shall be deemed to have been imposed under section 11 of the Customs Act, 1962 and all the provisions of that Act shall have effect upon it. Thus the restriction on import or holding of foreign currency imposed under section 13 of FERA shall be deemed to have been imposed under section 11 of the Customs Act. Oncethey are treated to be restrictions under the Customs Act, in view of the section 111(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under Customs Act, such goods shall be liable to be confiscation. In view of the provision of section 135(1)(b) any person, who acquires possession of or is in any way concerned in 8 APEAL.114/1991 carrying, removing, depositing, etc. of any goods, which he knows or has reason to believe, are liable to be confiscation under section 111 or section 113, as the case may be, is liable to be convicted and punished. Therefore, if the accused would be found in possession of foreign currency in violation of section 13 of the FERA, he couuld be convicted under the provision of section 135 also, and the provisions of Customs Act could be applicable. Therefore, merely because the complaint was made by the Director of Enforcement or officer duly empowered by the Director of Enforcement or officer authorised by the Reserve Bank of India it could not be dismissed on that ground. 7] The crux of the matter is whether the prosecution has proved that accused was found in possession of the foreign currency. As per P.W.1 and P.W.2, during seach of the room on second floor of Zeni house, foreign currency was found in a brief-case. However, according to P.W. No.3-Lawrance B. Martin when he had gone to room on 2nd floor in Zeni House, Customs officers were already present. According to P.W. No.4-Krishnappa N. Malape when he reached there, the Customs officers, one panch witness and the accused were already present. Though they admitted that during search of the brief-case, foreign and Indian currencies were found, however, P.W.Nos.3 and 4 9 APEAL.114/1991 denied that the accused was residing there. There is no independent evidence showing that the accused was residing in the house, and in fact there is specific evidence of these two independent witnesses that accused was not residing in that room and one Santano Fernandes was residing in the room. Admittedly search was taken for Santano Fernandes. However, he could not be arrested or prosecuted. 8] Taking into consideration the material on record, it is difficult to hold that the trial court was wrong in holding that prosecution had failed to prove that the accused was residing in that room and that accused was in possession of the foreign currency. In the appeal against acquittal, the evidence will have to be scrutinized carefully and the Appellate Court will have to come to its own conclusion whether offence was committed to by the accused or not. If both views are possible, then normally the Appellate Court will not interfere in the findings recorded by the trial court. In the present case, in view of evidence on record, it is difficult to hold that the trial court was wrong. Therefore, I do not see any reason to interfere in the order of acquittal passed by the trial court. 9] Before concluding, it is to be noted that the matter pertains to the Customs Department which is under Union of India. 10 APEAL.114/1991 The alleged offence was committed against the provisions of Customs Act and FERA which are implemented by the Central Government or its agencies and the State of Maharashtra has no concern with the implementation of those laws. In the present case. The complaint was filed by the Customs Officers. If Customs Department or Union of India was aggrieved by the judgment and order of acquittal, appeal against it could be preferred by the Union of India or Customs Department. The State of Maharashtra has no power to prefer an appeal. In the present case, the title of the appeal clearly shows that the appeal was preferred by the State of Maharashtra. It does not even indicate it was being filed on behalf of the Customs Department. In view of this, appeal filed by the State of Maharashtra, against the order of acquittal in the case filed by Customs Department, is incompetent, and on that ground also the appeal was liable to be dismissed. For the aforesaid reasons, the appeal stands dismissed. (J.H. BHATIA, J.) 11 APEAL.114/1991