CR.A/2319/2005 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2319 of 2005 With CRIMINAL APPEAL No. 2430 of 2005 With CRIMINAL APPEAL No. 2432 of 2005 With CRIMINAL APPEAL No. 2629 of 2005 With CRIMINAL APPEAL No. 131 of 2006 With CRIMINAL APPEAL No. 132 of 2006 With CRIMINAL APPEAL No. 137 of 2006 For Approval and Signature : HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAMAD BHAKHAR RAYMA & 5 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellants. MR RC KODEKAR, LD.APP for Respondent. ========================================================= CR.A/2319/2005 2/55 JUDGMENT CORAM : HONOURABLE MS.JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE C.K.BUCH Date : 09/01/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. Criminal Appeal Nos.2319 of 2005, 2430 of 2005 and 2432 of 2005 preferred by the appellants- orig. accused nos.2 to 7 (hereinafter referred to as 'the accused nos.2 to 7') arise out of the judgment and order of conviction and sentence dated 28th October, 2005 passed by the learned Additional Sessions Judge, Bhuj- Kutch, in Sessions Case Nos.56 of 2002, 42 of 2003 and 44 of 2003, whereby the learned trial Judge has convicted the accused nos.2 to 7 for the offences punishable under Sections 122 and 123 of the Indian Penal Code; under Sections 25(1)(b), 25(1AA) of the Arms Act; under Rules 3 and 6 of the Indian Passport (Entry into India) Rules, 1950 and also under Sections 13(2) and 14 of the Foreigners Act, 1946 read with Section 34 of the Indian Penal Code; and sentenced to suffer rigorous imprisonment for CR.A/2319/2005 3/55 JUDGMENT 10 years and to pay a fine of Rs.500/-, in default of payment of fine further rigorous imprisonment for three months for the offences punishable under the provisions of the Indian Penal Code. The accused nos.2 to 7 are also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.250/-, in default of payment of fine further rigorous imprisonment for two months under the offences punishable under the provisions of the Arms Act. The accused nos.2 to 7 are also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-, in default of payment of fine further simple imprisonment for one month for each offence punishable under the provisions of Foreigners Act and Indian Passport (Entry into India) Rules, 1950. 2. Criminal Appeal No.2629 of 2005, preferred by the appellant-orig.accused no.9-Mohammad alias Salim alias Sameer alias Firoz alias Hussain alias Mohammad Ismail Yusuf Sida Sindhi, who is the accused in Sessions Case No.29 of 2004, has been received through the Jail Authority. CR.A/2319/2005 4/55 JUDGMENT This Appeal arises out of the judgment and order of conviction and sentence dated 28th October, 2005 passed by the learned Additional Sessions Judge, Bhuj-Kutch, in Sessions Case No.29 of 2004, whereby the learned trial Judge has convicted the accused no.9 for the offences punishable under Sections 122 and 123 of the Indian Penal Code; under Sections 25(1)(b), 25(1AA) of the Arms Act; under Rules 3 and 6 of the Indian Passport (Entry into India) Rules, 1950 and also under Sections 13(2), 14 read with Section 34 of the Foreigners Act, 1946; and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.500/-, in default of payment of fine further rigorous imprisonment for three months for the offences punishable under the provisions of the Indian Penal Code. The accused no.9 is also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.250/-, in default of payment of fine further rigorous imprisonment for two months under the offences punishable under the provisions of the Arms Act. The accused no.9 is also sentenced to CR.A/2319/2005 5/55 JUDGMENT undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-, in default of payment of fine further simple imprisonment for one month for each offence punishable under the provisions of Foreigners Act and Indian Passport (Entry into India) Rules, 1950. 3. Criminal Appeal No.131 of 2006 is preferred by the State against the judgment and order of acquittal recorded qua the orig.accused nos.1 to 8 of Sessions Case No.56 of 2002, 42 of 2003 and 44 of 2003. 4. Criminal Appeal No.132 of 2006 is preferred by the State against the judgment and order of acquittal recorded qua the orig.accused nos.2 to 7 of Sessions Case No.56 of 2002, 42 of 2003 and 44 of 2003 as well as the accused of Sessions Case No.29 of 2004 for their acquittal from the charge of offence punishable under Sections 121, 124(A) and 120(B) of the Indian Penal Code. 5. Criminal Appeal No.137 of 2006 is preferred by the State against the judgment and order of CR.A/2319/2005 6/55 JUDGMENT acquittal recorded qua the orig. accused nos.2 to 7 as the acquittal of all these accused persons has been recorded separately in the operative portion dividing different Sessions Cases to meet with the procedural requirement being shown as accused persons simultaneously in different Sessions Cases for the similar offences. 6. The accused of Sessions Case No.56 of 2002, 42 of 2003 and 44 of 2003 have been tried with the accused of Sessions Case No.29 of 2004. As per the charge Ex.1 total eight persons have been shown as accused of these Sessions Cases. Out of total eight accused persons, orig.accused no.1-Noormamad Isha Sanghar and orig.accused no.8-Sidik Mubarak Notiyar have been acquitted from the charge of offences levelled against them. The accused nos.2 to 7 and 9 of these Sessions Cases have challenged the legality and validity of the judgment and order of conviction and sentence. As per the earlier orders, all these appeals have been heard together. 7. As total four Sessions Cases were tried CR.A/2319/2005 7/55 JUDGMENT together and were disposed of by way of common judgment and order dated 28th October 2005, four Appeals have been preferred by the appellants-accused nos.2 to 7 and 9 challenging the judgment and order of conviction and sentence and three Appeals have been preferred by the appellant-State challenging the judgment and order of aquittal. 8. We have heard Shri Anandjiwala, learned advocate appearing for the accused nos.2 to 7 and Shri R.C. Kodekar, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. The learned advocates have taken us through the relevant oral as well as documentary evidence led during the course of trial. It is submitted by Shri Anandjiwala that the finding recorded by the learned trial Judge is based on incorrect and erroneous appreciation of evidence. The learned trial Judge has grossly erred in considering certain inadmissible evidence. The say of Shri Anandjiwala, in nutshell, is that : CR.A/2319/2005 8/55 JUDGMENT (i) The charge framed by the learned trial Judge is vague and this has resulted into serious prejudice to the accused persons while placing their defence. (ii) The statements of the accused nos.2 to 7 and 9 allegedly recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as 'the Act') have been wrongly read and considered as evidence against the accused, including the admissions made by the respective accused in their so-called statements recorded by different Superintendents of Custom Department, though the accused were never subjected to inquiry under the Act. When they have not been charged with any offence punishable under the provisions of the Act, these statements of the accused could not have been read in evidence considering the scheme of Section 108 read with Section 138(B) of the Act keeping in mind the relevant Sections 124 and 137 of the said Act. (iii) The learned trial Judge has again erred CR.A/2319/2005 9/55 JUDGMENT in appreciating the evidentiary value of the so-called statements recorded under Section 108 of the Act in absence of any other cogent, convincing and corroborative piece of evidence; especially when except two, the rest of the statements allegedly recorded under Section 108 of the Act do not bear any signature of the maker of the statements and these statements were retracted statements. On the count of probative value also, these statements recorded under Section 108 of the Act by various Superintendents of Custom Department examined by the prosecution, could not have been looked into as clinching piece of evidence. (iv) The panchnama of boat at Ex.49 and the story placed by the prosecution as to the purchase of Oil Engine which was required to be fixed on a boat as well as the evidence about seizure of Tempo bearing registration no.GJ-12-V-7000, led by the prosecution do not carry the CR.A/2319/2005 10/55 JUDGMENT case of the prosecution any further in absence of other legal and admissible evidence which can be said to be cogent and convincing. (v) The conviction recorded under the Arms Act is not sustainable in the eye of law as there is no valid sanction to prosecute the accused persons because the District Magistrate is the only authority who could have accorded such sanction required under Section 39 of the Arms Act. In the present case, the sanction to prosecute is neither proved nor has been accorded by the District Magistrate. The order of sanction is by Additional District Magistrate. There is no legal evidence to show that the Additional District Magistrate was authorized under the law to accord such sanction. So on this count only, the judgment and order of conviction and sentence recorded by the learned trial Judge may be quashed and set aside. (vi) The evidence led by the prosecution CR.A/2319/2005 11/55 JUDGMENT shows that of the accused persons two have been prosecuted and tried for the offences punishable under the provisions of the Arms Act for the alleged recovery of unauthorised weapon, namely Pistol, by the Police during the search carried out. In that prosecution, the statements of two accused persons i.e. accused no.3-Tamachi Khengarji Jadiya and accused no.2-Jakariya Haji Noor Mamed, recorded on 16th June, 1999 by PW-21 Pritam Nechardas, Superintendent of Custom Department, were placed and relied upon. In the same way, these two statements were also relied upon by the prosecution in the another Sessions Case No.85 of 1999 and these accused persons were also tried for similar offences. There is reference of two different offences registered by Narayan Sarovar Police Station being C.R.No.I-17 of 1999 and C.R.No.II-17 of 1999. The prosecution, therefore, under the Arms Act as well as the other offences under CR.A/2319/2005 12/55 JUDGMENT the provisions of the Indian Penal Code would be barred so far as C.R.No.I-17 of 1999 is concerned. The accused cannot be subjected to more than one prosecution on same facts and on similar allegations. The accused nos.2 to 7 were subjected to prosecution on similar facts in Sessions Case No.85 of 1999 and the learned trial Judge after conclusion of the trial has decided to acquit the orig. accused nos.2 to 7. The accused of Sessions Case No.29 of 2004 has been held guilty at the conclusion of the trial of Sessions Case No.85 of 1999. Shri Anandjiwala has tendered a copy of the charge framed by the learned Additional Sessions Judge in Sessions Case No.85 of 1999 as well as Sessions Case No.1 of 2002. The accused are asked to face prosecution on account of the so-called activities which were undertaken by them along with the other absconding accused persons for the attempt which was allegedly made in the month of February, 1999. As the charge CR.A/2319/2005 13/55 JUDGMENT of Sessions Case No.85 of 1999 and Sessions Case No.1 of 2002 speaks about something which might have occurred even prior to 31st May, 1999, the present accused persons could not have been prosecuted and tried as per the scheme of Section 300 of the Code of Criminal Procedure, 1973. Thus, the accused may be acquitted observing that the trial against the accused was bad on the principle of double jeopardy. 9. Shri R.C. Kodekar, learned Additional Public Prosecutor, has submitted that the Government by publishing a notification has empowered all the Additional District Magistrates to accord sanction under Section 39 of the Arms Act. Of course, the copy of the said notification was not produced before the Court, but this fact situation was considered earlier in the case of State v. Bhimsha Chambasappa Kore, reported in AIR 1962 Bombay 188. He has drawn the attention of this Court to the relevant part of paragraph no.4 of the said decision, which is reproduced as under : CR.A/2319/2005 14/55 JUDGMENT “4. xxx xxx xxx ... The authority enumerated in section 29 of the Arms Act, is Magistrate of the District in the mofussil and a Commissioner of Police in the Presidency Towns, and there is no dispute that the Magistrate of the District means the District Magistrate, as understood under the Criminal Procedure Code. Once that the conclusion is reached, it is easy to see that any person who is appointed as Additional District Magistrate by the State Government can exercise all or any of the powers of the District Magistrate, under sub-section (2) of Section 10 of the Criminal Procedure Code and he would automatically have the power of a District Magistrate, under the code or under any other law. It is quite clear that the Additional District Magistrate would, therefore, have the same power as the District Magistrate under Section 29 of the Arms Act. In our opinion, therefore, the CR.A/2319/2005 15/55 JUDGMENT learned Judicial Magistrate was in error in considering that the Additional District Magistrate had not the jurisdiction or authority to give sanction for prosecution of the respondent for breach of offence under section 19(f) of the Arms Act.” 10. In the cited decision, the Bombay High Court has accepted the say that the State Government is authorized to empower the Additional District Magistrate to accord sanction under the Arms Act. In absence of statutory bar, the prosecution cannot be held to be invalid on the ground of want of sanction. It is, further submitted by Shri R.C. Kodekar that the learned trial Judge was right in accepting the evidence collected by the Investigating Officer which is in the form of statements recorded by the authorised/ competent officers under Section 108 of the Act. The admission made by the maker of the statement is materially different than a confession of the accused recorded under Section 164 of the Code of Criminal Procedure, 1973. The person CR.A/2319/2005 16/55 JUDGMENT interrogated or brought for interrogation before the Superintendent of Custom Department or any other superior officer so empowered may not be the accused. So during the inquiry if the statement is made and if anything incriminating is found against the maker of the statement, the same can be used against the very person as evidence. After referring to Sections 107 and 108 of the Act, it is submitted by Shri R.C. Kodekar that it is not necessary that such a statement can be used as a piece of evidence in a prosecution under the Act or the other allied laws, say like Gold Control Act, FERA, etc. The accused were facing charge under the Foreigners' Act and, therefore, the statements could have been read. In support of this submission, he has tried to place reliance on the decision of the Apex Court in the case of K.I. Pavunny v. Assistant Collector (HQ.), Central Excise Collectorate, Cochin, reported in 1997 SCC (Cri.) 444 and also in the case of Chandrakant Chimanlal Desai v. State of Gujarat, reported in 1992(1) SCC 473. According to Shri R.C. CR.A/2319/2005 17/55 JUDGMENT Kodekar, the observations made by this Court in the case of Hemant Bhanushanker Vyas v. K.V. Patel, Inspector of Customs and others, reported in 1992 (1) GLR 346, would help the prosecution. However, in response to the query raised by the Court, he has fairly accepted that he could not lay his hand on any direct decision propounding the ratio that the statement recorded under Section 108 of the Act can be read in any other criminal proceeding against the maker of it irrespective of the fact whether he is asked to face the charge of any offence punishable under the provisions of the Act or any other allied laws. But according to him, the facts disclosed by the accused persons being relevant to the offence which was being investigated by the Police, these statements were handed over to the Investigating Officer of C.R.No.I-17 of 1999 (Narayan Sarovar Police Station). The prosecution was authorized to use these statements as relevant and reliable piece of evidence. These statements have been proved and received in evidence. It is not CR.A/2319/2005 18/55 JUDGMENT necessary that each statement must have been signed. The custom officer has no animosity with the accused persons. Except the orig.accused no.9, all the accused were Indian nationals. The custom officer would not have known the details which are reflected in each of the statements made by the convicts. The smallest detail of the family of the respective accused in his respective statement clearly show that the statement must have been made by the very person i.e. maker of the statement, voluntarily. Though the said statements were recorded after a very long period, during meticulous interrogation a person can respond to the questions. Merely because most of the statements have been recorded on 04th October, 1999 and except two accused, none of the accused persons has signed the statements, the said statements ought not to have been ignored and the learned trial Judge has rightly appreciated the contents of the said statements. It is further submitted by Shri R.C. Kodekar that there are certain lapses in the investigation but they are insignificant and unless the Court finds CR.A/2319/2005 19/55 JUDGMENT that the infirmity in the investigation goes to the root of the case of the prosecution, they should be ignored. Most of the prosecution witnesses have turned hostile and some witnesses have not stood to the test of cross-examination. However, the finding of the learned trial Judge is mainly based on the statements recorded under Section 108 of the Act and the conviction can be based on such evidence. According to Shri R.C. Kodekar, of the total accused, two accused have made statements at two different times. One in the month of June, 1999 and another in the month of October, 1999. If the learned trial Judge has found that these two statements are consistent to each other, there was no reason for him to discard such evidence and a statement made by the co-accused can be used against other accused barring confessional part. No muddamal was produced in the present case and certain original documents were brought before the Court from the record of Sessions Case No.85 of 1999 and certified copies have been rightly admitted in evidence and considered by the learned trial Judge. CR.A/2319/2005 20/55 JUDGMENT 11. According to Shri R.C. Kodekar, this is not a case of double jeopardy at all. The prosecution against the accused was in connection with the wrong committed by them in the month of February, 1999. During that period, the attempt of infiltration by Pakistan Nationals and the absconding co- accused was made. During that period only, two weapons were brought illegally inside India. The accused no.9 i.e. accused of Sessions Case No.29 of 2004, was responsible for the said offence. So they have been asked to face the charge of the offence committed earlier by them. Sessions Case in which they have been acquitted was altogether a different wrong which was committed in the month of June, 1999 and at that time, they had succeeded in importing dangerous weapons and explosive substances in India with the help of intruders and infiltrators. So the argument of double jeopardi would not help the accused. It is further submitted that there is no merit in the appeals filed by the convicts, and therefore, the same are required to be quashed CR.A/2319/2005 21/55 JUDGMENT and set aside. 12. Shri Anandjiwala has canvassed various points before us. On plain reading of the oral evidence led by the prosecution, it is clear that none of the prosecution witnesses can be said to have led any clinching evidence which can be said to be sufficient to link the accused with any of the crimes in question, except qua the orig. accused no.9 so far as the offence punishable under the provisions of the Foreigners Act, 1946 and Indian Passport (Entry into India) Rules, 1950, are concerned. Indisputably, most of the witnesses have turned hostile except the Police witnesses and Superintendent of Custom Department examined by the prosecution. The panchas or the witnesses, who have tendered certain documents including the registers, etc., who have not been declared hostile, do not help the prosecution in establishing the guilt. Their version before the Court is found helpful neither to the prosecution nor to the accused. On the contrary, the accused can forcibly argue that the evidence of these CR.A/2319/2005 22/55 JUDGMENT witnesses even do not establish the facts which the prosecution intends to rely upon. There is some force in the argument of Shri Anandjiwala that the accused were in prison. In the present case, the accused were taken into custody under Transfer Warrant. When an attempt was made by the accused no.3-Tamachi Khengarji Jadiya to get bail pending trial stating that there is no evidence against the accused, the evidence in the form of statements under Section 108 of the Act was collected at the instance of the Investigating Agency. Shri Anandjiwala has made allegation against the learned Additional Public Prosecutor for using his influence in getting the statements recorded on a single day with the help of officers of the Custom Department. On all occasions, the statements have been retracted. As per the settled legal position, a retracted statement cannot be used against the co-accused. The retracted statement can be read in evidence provided the Court is satisfied about the genuineness of the statement so recorded. While using a retracted statement as a piece of evidence, CR.A/2319/2005 23/55 JUDGMENT the Court should consider its legal effect. As a rule of prudence the Court should try to seek some corroborative piece of evidence. According to us, unless the statement made by the accused under Section 108 of the Act is found safe which is able to gather confidence of the Court, it should not be made a base to record conviction. According to us, unless a statement is found safe, able to gather confidence and there is ample evidence to show that the same has been recorded without fear or favour, and as per the free will of the maker, it cannot be made a base to link the accused with the crime. In the case of retracted statements, the Court should be doubly conscious. Ultimately, the admission made by a maker of the statement is also an act and that act has to be proved beyond reasonable doubt that a particular admission or confession was made before the competent officer and the same was voluntary and without pressure. The language used or the other details in the statement would not make such statement a reliable piece of evidence. Each such statement should stand to the test vis-a- CR.A/2319/2005 24/55 JUDGMENT vis the other facts and evidence available on record. On close scrutiny of each statement available on record, no statement inspire confidence; e.g. in one of the statements at Ex.100, the officer who has recorded the statement has mentioned before concluding the statement that the maker is not inclined to sign and he has refused