IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5926 OF 2005 Mr.P.M.Parab .. Applicant Versus Mr.Narsingh Laxmi Narsaiah & Anr. .. Respondents Mr.D.N.Salvi for the applicant. Mr.S.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 02nd March 2009. : 02nd March 2009. : 02nd March 2009. P.C.: . This is an application under sub-section 3 of section 378 of the Code of Criminal Procedure, 1973. The applicant (Assistant Commissioner of Customs) filed a complaint against the 1st respondent-accused alleging commission of offences under section 135(1)(a) read with section 135(1)(i) and under section 135(1)(b) read with section 135(1)(i) of the Customs Act. 2. According to the case of the applicant on 28th February 1995 the officers of the Airport Customs attached to Sahar International Airport, Mumbai on receiving a specific information intercepted the 1st respondent-accused while he was moving towards duty free (2) shop from the Arrival Immigration Lounge of Module I and stopped the 1st respondent while rushing to lift in Module I. The allegation of the applicant is that immediately the 1st respondent-accused dropped two handkerchief wrapped packets from left pocket of his trouser. The said packets were opened in presence of panch witnesses. The said packets contained 16 gold bars of 10 tolas each weighing 1866 gms valued at Rs.7,15,678/-. The seizure of the gold bars was effected under the panchnama in the reasonable belief that the same were smuggled into India and hence were liable to confiscation under the provisions of the Customs Act. By the impugned judgment and order the learned Magistrate has acquitted the 1st respondent. 3. The learned counsel appearing for the applicant has taken me through the impugned judgment and order and notes of evidence. P.W.No.1 Satish Uchil who was on duty at Sahar Airport on the relevant date as a baggage officer stated that the 1st respondent was the Intelligence Officer attached to Intelligence Bureau at Mumbai. He stated that one Mr.Bhalerao received a phone call that one person would be collecting gold and even the description of the person was given. According to the witness when the accused was moving towards the lift (3) he was nabbed by the said witness alongwith one Officer Mr.Tiwarekar in presence of two panch witnesses. He stated that when he alongwith Mr.Tiwarekar and panch witnesses were searching for a person of the description given to them, they saw the 1st respondent-accused while he was moving towards the lift. He stated that they stopped the 1st respondent near the lift. He stated that he saw the 1st respondent removing two packets from left pocket of his trouser and thereafter he dropped the packets on the floor. He thereafter described as to how the gold bars were seized. In the cross-examination he admitted that he did not personally see anybody handing over the gold bars to the 1st respondent. In the cross-examination he stated that he was not recollecting whether Mr.Bhalerao had made a note of the information received by him. He stated that Mr.Bhalerao had not given him the description of the person who was come with the gold. He stated that he did not make any efforts to apprehend the said passenger who allegedly handed over gold to the 1st respondent. 4. The applicant relied upon the statements of the 1st respondent under section 108 of the Customs Act. The learned trial Judge has referred to the two separate statements of the 1st respondent recorded under the (4) provisions of section 108 of the Customs Act. In paragraph 8 of the judgment he has elaborately considered the contents of the said statements and has recorded a finding that both the statements were exculpatory. The 1st respondent stated that he was an officer of Intelligence Bureau. He stated that when he reached duty free shop in the Module I on the ground floor he noticed that certain passengers were coming through staircase and going towards immigration hall. When he was moving towards the lift after passing few passengers he was pulled back by one of the customs officer in uniform. The said customs officer showed him two packets wrapped in handkerchief which were already there. In the said statement the 1st accused stated that he had come to the Airport to meet one Shamim Ahmed of Pakistan International Airlines to revive his old contact for official work. The learned Judge noted that in both the statements the 1st respondent did not admit of having received packets containing gold and that he dropper packets on the floor. P.W.No.6 Raman Parmar, a panch witness did not support the prosecution. He stated that he had not seen the accused dropping the handkerchief wrapped packets. 5. In the context of the aforesaid evidence and (5) exculpatory statements of the 1st respondent, the learned Judge has noted that the other officer accompanying P.W.No.1 was not examined by the prosecution. Moreover, the P.W.No.1 stated that he had not noticed any one handing over the gold packets to the 1st respondent. The officer who allegedly received the information has not been examined. 6. Considering all the aforesaid aspects, the view taken by the learned Judge that the prosecution has failed to establish that the 1st accused was in possession of 16 gold bars in fraudulent evasion of customs duty. The view taken by the learned Judge is a probable view and possible view. No case is made out for interference. Application is rejected. (A.S.Oka,J)