:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.799 OF 2001 CRIMINAL APPEAL NO.799 OF 2001 CRIMINAL APPEAL NO.799 OF 2001 Union of India (at the instance of Assistant Collector of Customs, Rummaging & Intelligence (P), Mumbai ...Appellant. v. 1. Hanif Mohammed Memon @ Akbar of Bombay Indian Inhabitant residing at Room No.27, 3rd floor, 107, Kambekar Street, Mumbai-3 2. Abdul Sattar Batliwala of Bombay Indian Inhabitant residing at Plot No.18, 1st floor, Al-Fazal, Agripada, Mumbai 3. Abdul Rashid Bawazir @ Rashid Arba of Bombay Indian Inhabitant residing at 4th floor, Joshi Building, Nagdevi Street, Mumbai-3 4. State of Maharashtra ...Respondents. Mrs.A.A.Mane , APP for the Applicant/Union of Indian. None for the Respondent Nos.1 to 3. Mr.Y.M.Nakhawa, APP for the State/Respondent No.4. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 21st March, 2009. DATE: 21st March, 2009. DATE: 21st March, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This appeal is filed by Union of India taking :2: exception to the order dated 29.3.2001 passed by the Chief Metropolitan Magistrate, Esplanade, Bombay in Criminal Case No.198/CW/96, recording acquittal of the respondents/original accused nos.2,3 and 5 for the offences punishable under Sections 120-B of the Indian Penal Code, under Sections 135(1)(a)(b) r/w 135 (1)(i), section 135(1)(a) r/w 135(1)(i) of the Customs Act, 1962, Under Section 5-a of the Imports and Exports (Control) Act, 1947 read with Import Control order 17/55 and under Section 8(1)(ii) read with Section 85(1)(a) of the Gold (Control) Act, 1968. 2. Prosecution case in brief was as follows: . On the basis of secret information received by P.W.2 Datta, P.W.1 Paul, under the directions of P.W.3 raided and searched residential premisses namely, Room No.19, Second floor, Kumar Vilas Building, Mangal Wadi, Girgaum, Bombay on 4th February, 1985. Premises belonged to the original deceased accused no.1 Suresh Bhandari. During the search of the above premises, consisting of one room, large quantity of contraband gold bars were recovered from possession of Smt. Kantaben Suresh Bhandari, wife of the original accused no.1. During the search of premises, accused no.1 came to the premises, he was carrying a cloth bag. On seeing police officers, he tried to escape but was apprehended and brought to the premises. The personal search of the :3: accused no.1 resulted into recovery of a contraband gold biscuits carrying foreign marking. Prosecution case further proceeds that in search of the above premises and in personal search of the accused 1, in all 400 gold biscuits or bars of foreign origin collectively weighing 4,000 tolas and valued at Rs.89,60,000/- were recovered from the above premises allegedly belonging to the accused no.1. . It is the prosecution case that during the conduct of raid, respondent no.1/accused no.2 arrived in the above premises for taking delivery of gold from the accused no.1. Further investigation was carried. Statement of the accused no.1 was recorded by the P.W.3 under Section 108 of the Customs Act, 1960 and on the basis of this statement, accused no.2 came to be arrested as accused no.1 stated in his statement that the accused no.2/respondent no.1 had came in the premises for taking delivery of part of the gold brought by him on 4th February, 1985. On the basis of the statement of accused no.1 and the respondent no.1/accused no.2, other accused also came to be arrested. Premises of the accused nos.3 and 5 were searched by P.W.4 and 5 respectively, However, nothing incriminating was found. Sanction for the prosecution of all the accused was obtained from the Competent Authority and thereafter, complaint came to be filed in the Court of Chief Metropolitan Magistrate, Bombay. :4: 3. Accused No.1 Suresh died during the pendency of the trial and, therefore, trial stood abated against him. Accused Nos.4 and 6 are absconding and, therefore, their case was separated and charge was framed against the respondents, who are the accused nos.2, 3 and 5 respectively for the offences mentioned above. Charge was explained to the respondents/accused in vernacular to which they pleaded not guilty and claimed to be tried. Defence of the accused was of total denial. 4. Prosecution in order to establish the guilt of the respodents/accused, examined five witnesses and also relied upon documentary evidence, namely, seizure panchanama and the statements of the accused no.1 and respondent no.1/accused no.2 recorded by the respondent no.3 from time to time. 5. Learned Chief Metropolitan Magistrate after appreciating the evidence led by the prosecution, came to conclusion that the prosecution failed to prove beyond reasonable doubt any offence against the respondents/accused and consequently, acquitted them by the impugned judgment and order. 6. Learned counsel appearing for the appellants submitted that prosecution in order to bring home the guilt of the accused, relied upon the evidence of :5: P.W.1,2 and 3 and also the inculpatory statements recorded under Section 108 of the Customs Act. She further submitted that this evidence is sufficient to convict the respondents/accused and, therefore, requested to set aside the impugned order and convict the respondents/accused for the charges levelled against them. None appears on behalf of the respondents/accused. 7. Having gone through the depositions of the witnesses and the documentary evidence led by the prosecution and having heard the learned counsel for the appellant, I find no merit in the appeal for the reasons stated hereinafter. . Prosecution in order to establish the guilt of the respondents, examined P.W.1 Paul who raided the premises of the accused no.1, P.W.2 Datta who drawn panchanama, P.W.3 Randive who recorded the statements of accused no.1 and respondent no.1/accused no.2, P.W.4 Mr.Ganesh Lagu and P.W.5 Shaikh Mohammed who have searched the houses of accused nos.3 and 5 respectively. Prosecution also relied upon the statements of accused no.1 at Exhibit P-10, 13, 15, 16, 17, 18 and 19 and the statement of accused no.2 at Exhibit P-12, P-14, P-21, P-22, P-23 and P-24. Now let us see on the basis of this evidence, whether prosecution said to have established respondents/accused guilt beyond any :6: reasonable doubt. 8. During the pendency of the trial, accused no.1 Suresh Bhandari expired and, therefore, trial stood abated against him. P.W.1 deposed that on 4th February, 1985 premises belonging to the accused no.1 was raided and searched and during search gold biscuits of foreign origin were recovered. It was further deposed that while search was in progress, accused no.1 entered a room. On seeing officers, he tried to escape, however, he was apprehended and on his personal search, gold biscuits were found. Total 400 gold biscuits/bars were recovered from the premises belonging to the accused no.1 and from the person of the accused no.1 on 4th February, 1985. It was also deposed that accused no.2 also entered into the room belonging to the accused no.1. He was apprehended. His search was taken but no contraband articles were found on his person. Thereafter panchanama was drawn by P.W.2 and gold was seized under panchanama at Exhibit P-1. Statement of the accused no.1 was recorded by the P.W.3 and on the basis of statement of accused no.1, accused no.2 was arrested. 9. P.W.2 Datta is the officer who was the member of the raiding party. He has corroborated the evidence of P.W.1. P.W.2 has drawn panchanama at Exhibit P-1. :7: 10. P.W.3 Mr.Randive was working as Assistant Director, D.R.I., Bombay. He deposed that he recorded the statement of accused no.1 at Exhibits P-10, 13, 15, 16, 17, 18 and 19 and the statement of the respondent no.1/accused no.2 at Exhibits P-12, P-14, P-21 to P-24. 11. P.W.4 and 5 have searched the residential premises of the respondent nos.2 and 3, original accused nos.3 and 5 respectively. However, nothing incriminating was found and, therefore, evidence of these witnesses is not helpful to the prosecution. 12. Thus, the prosecution relied upon the statements of the deceased accused no.1 and the respondent no.1/accused no.2 recorded under Section 108 of the Customs Act, 1962. So far as the statements of the respondent no.1/accused no.2 are concerned, except the statement at Exhibit P-12, all other statements are recorded in Gujarathi language. I have gone through the statement at Exhibit P-12, which is recorded in English language. However, there is nothing incriminating against the accused. Other statements at Exhibits 14, 21, 22, 23 and 24 since recorded in Gujarathi and the translation was not provided by the prosecution, the learned Magistrate ignored the same. The appellants at the appellate stage also failed to provide translation of these statements and, therefore, it is difficult to find out whether there is incriminating material in it. :8: Statement of the respondent no.1/accused no.2 are thus not helpful to the prosecution to prove guilt of the respondents. 13. So far as the statements of the deceased accused no.1 recorded under Section 108 of the Customs Act, are concerned, they are seven in numbers and these statements discloses incriminating material against the respondents/accused. The statements are admissible in the evidence. The learned counsel for the appellants does not dispute that except the statements of the deceased/accused no.1, there is no other evidence against the respondents/accused. However, the question is what is the probative value of the confession of the co-accused. This issue is decided by Five Judges’ Bench of the Apex Court in the case of Haricharan Kurmi & Anr. Haricharan Kurmi & Anr. Haricharan Kurmi & Anr. v. State of Bihar v. State of Bihar v. State of Bihar reported in AIR 1964 Supreme Court AIR 1964 Supreme Court AIR 1964 Supreme Court 1184 1184 1184. Apex Court in paragraph 16 observed as follows: 16........... As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused :9: person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt." 14. The above ratio of the decision of the Supreme Court is clearly applicable to the present case as admittedly there is no other evidence apart from the confession of the deceased co-accused. In addition to this, the deceased accused no.1 and accused no.2 had retracted their statements and, therefore, the respondents/accused can not be convicted merely on the basis of statement of the deceased co-accused no.1 under Section 108 of the Customs Act. The learned Chief Metropolitan Magistrate has also come to the similar conclusion. I do not find any error in the impugned judgment and order. No interference is called for. Appeal is devoid of merits and the same stands dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)