PABITRA KUMAR BANERJEE, J. ( 1 ) ON 29th September, 1980, in the morning, pursuant to some source of information, a team of 15 Customs Officers led by the Superintendents. D. Singh and L. N. Muzumdar, boarded the vessel Murray Everett of Messrs. Everett Orient Lines (shortly the vessel) lying at Netaji Subhash Dock Calcutta and conducted search in presence of the Chief Steward Mr. Rodolfo T. Cardiente alias Rudy (Rudy in short), accused since acquitted and during search cigarette cartons and large quantities of Wrist Watches, coiled Filaments. Bulb Filaments etc. . . all of foreign origin valued at more than Rs. 25 lakhs, wrapped up in 35 packets were recovered underneath the baskets of eggs and apples concealed inside the vegetable room of the cold storage of the vessel. All the articles thus recovered were seized under a seizure list exhibit-I prepared in presence of the accused and some witnesses. On the same date and on some other dates subsequent thereto, Rudy made certain statements giving out the names and addresses of the persons who had planned, financed and conspired in smuggling of contraband articles into India through the instrumentality of one Customs Officer called Khan. Rudy was placed under arrest under Section 104 of the Customs Act, 1962. ( 2 ) ON 13th April, 1981, Mr. M. Prasad, Assistant Collector of Customs, attached to Calcutta Customs, made a complaint in writing before the learned Chief Metropolitan Magistrate, Calcutta, after obtaining sanction from the Collector against K. K. Vaghani alias Bala. Rodolfo T. Cardiente alias Rudy. N. W. Peter and the Preventive Officer of Calcutta Customs. A. H. Khan for prosecution on charges under Sections 135 (1) (b) (i) and 136 (a) of the Customs Act, 1962, (hereinafter referred to as the Act) read with Section 120b of the Indian Penal Code setting out with some more details certain facts and circumstances under which the seizure of the articles took place and the accused Rudy was palced under arrest, as stated above. ( 3 ) THE learned Chief Metropolitan Magistrate, Calcutta, issued process against all the four accused named in the petition of complaint, when one of them. Mr. ( 3 ) THE learned Chief Metropolitan Magistrate, Calcutta, issued process against all the four accused named in the petition of complaint, when one of them. Mr. Anwarul Hassan Khan, moved this Hon'ble Court in Revision being Criminal Revision Case No. 553 of 1982 for quashing the criminal proceeding directed against him and obtained a stay order staying further proceeding of the trial before the Learned Magistrate. Later, in partial modification of the stay order, trial against Mr. Rudy alone was allowed to proceed and he faced the trial to answer the charge under Section 135 (1) (i) of the Act. The trial ended in acquittal and the complainant, feeling aggrieved has referred this appeal directed against the said order. The criminal revision, of which reference has already been made and which is still pending, has also been heard alone with the appeal one after another because both the appeals and the Cr. Revision arise out of the same petition of complaint and neither party objected to such analogous hearing. That is how both the matters have come up for our decision. We propose to deal with the Criminal appeal first. After admission of the appeal there was an order for releasing the accused on bail after rearrest. Since then, the order could not be executed with the result that none appeared on behalf of the respondent at the time of the hearing of this appeal. We heard the learned Advocate for the appellant and perused the papers. ( 4 ) OF the 16 witnesses examined on behalf of the prosecution at the trial, 14 are from Calcutta Customs and the two (P. Ws 13 and 14) are employees of Everett India (P) Ltd. , an agent of Everrett Orient Lines. N. Muzumdar P. W. 1 gave an account of the proceedings dated 29-9-1980 in this way. Mr. Rudy opened the lock of the cold storage of the vessel consisting of meat, fish and vegetable rooms. On search of the vegetable room, besides cigarette cartons 35 packets wrapped up in cellophene papers were detected underneath the apples and eggs baskets. The packets, when opened in presence of the witnesses and Rudy, Chief Steward, were found to contain 100 pc of Wrist Watches, 2,80,000 Wrist Watch movements, coiled filaments. 2 kgs. chemicals etc. all of foreign origin valued at more than Rs. 25 lakhs. Mr. The packets, when opened in presence of the witnesses and Rudy, Chief Steward, were found to contain 100 pc of Wrist Watches, 2,80,000 Wrist Watch movements, coiled filaments. 2 kgs. chemicals etc. all of foreign origin valued at more than Rs. 25 lakhs. Mr. Rudy who was all along present during the search and seizure could not produce any import licence or any other document in support of the legal importation and possession of the articles. This part of the procecution case about search and recovery of the contraband articles as deposed by P. W. 1 has been fully corroborated by P. W. s. 2,3,6,7 and 9 to 12. . . , all of whom were members of the rummaging party and this has not been effectively challenged during their cross-examination. The articles seized were entered in the seizure list, exhibit-1 and it was signed by P. W. s. 1,13 and 14 and also by the accused who received a copy of the same. ( 5 ) AS the articles seized were imported without valid import licence and none in the vessel could produce any document in support of the legal possession and in fact everybody disowned the property, the Customs Officers conducting search and seizure were in the reasonable belief that those were smuggled goods liable to confiscation under Section 111 of the Act. ( 6 ) IN order to appreciate the case of the prosecution connecting the accused with the offence under the Act, it becomes necessary to look into the statements alleged to have been made by the accused on 29-9-1980 and on subsequent dates which have been tendered by the prosecution in evidence at the trial and have been marked exhibits, 2 3,6 and 7. Of the two statements made on 29-9-1980, one, that is exhibit 2 is in the hand and signature of accused Rudy himself and other exhibit 6 has been dictated by the accused and recorded by A. K. Mondal, P. W. 3. The statement marked exhibit 3 is stated to have been recorded by VS. Honda. P. W. 8 under Section 107 of the Act in presence of S. R. Biswas, P. W. 2 on 30-9-1980 at Calcutta Customs House and Exhibit-7 is the statement alleged to have been made by the accused while he was in custody inside the Presidency Jail. The statement marked exhibit 3 is stated to have been recorded by VS. Honda. P. W. 8 under Section 107 of the Act in presence of S. R. Biswas, P. W. 2 on 30-9-1980 at Calcutta Customs House and Exhibit-7 is the statement alleged to have been made by the accused while he was in custody inside the Presidency Jail. Exhibit-6 is exculpatory and Exhibit-7 was recorded inside the jail while the accused was in custody without prior permission from the Magistrate. The last Two documents just referred to are left out [for] our consideration. We are thus left with exhibits 2 and 3 only. P. Ws. 1,2 and 3 have testified about the statement exhibit-2 written and signed by the accused soon after the seizure. As regards this statement the accused has not offered any explanation as to why he made such statements in his own hand and signature after the seizure. His presence in the vessel during and after search and seizure has been satisfactorily proved by the Customs Officers (P. W. 1,3, 7 and 10-12) and also by P. W. 14, the Port Captain of Everett (India) Private Limited. ( 7 ) THE other statement exhibit 3 has been proved by P. W. s. 2 and 8 on both and from their statements it appears that the accused made in the statement voluntarily. Section 107 of the Act is wide in terms and is clearly designed to facilitate the investigation by examination of the witnesses without restriction on person, place or time and it has been held in the case of Balakrishna v. State of West Bengal reported in, that any person referred to in section 107 of the Customs Act includes a suspect and potential accused because he is the best person to throw light with regard to the smuggled goods. On the question of admissibility of statements recorded under Section 107 of the Act, reference may also be made to the case of Vim Ibrahim v. State of Maharastra reported in wherein their Lordships found in favour of the admissibility of such statements. Similarly, in another case reported in (Hira v. Advani) it was held that even the inculpatory statements are admissible in evidence and the demand for incriminating answers is not be liable to be condemned. Similarly, in another case reported in (Hira v. Advani) it was held that even the inculpatory statements are admissible in evidence and the demand for incriminating answers is not be liable to be condemned. The ratio has been approved in the case of Vira Ibrahim (supra) in the way that on admission of an incriminating fact however grave is not a confession and as such not hit by Section 24 of the Evidence Act. In both the statements Exhibits 2 and 3, the accused disclosed how the 35 packets containing the smuggled goods were brought into the vessel within his knowledge at Hongkong, how the same were concealed undnerath the eggs and apples baskets in the store room of the vessel. While admitting that the accused agreed to carry the goods in consideration of some remuneration, the names of the persons to whom the goods were to be delivered at Calcutta through the instrumentality of one Customs Officer at Calcutta were also given out. Even if we leave aside the last part of the statements. , the fact remains that the accused knowingly took possession of the smuggled goods wrapped up in 35 packets and carried the same in the vessel for consideration and these facts have been further strengthened by the subsequent search and recovery of the goods by the Customs Officers in the vessel. Incidentally, it would be important to note that P. W. 14, an employee of the shipping agent and not in any way connected with the Customs House stated on oath that the accused, as Chief Steward, was in sole charge of the store room and the food stuff for daily requirements was brought out under his direct supervision. Under Section 123 of the Act once the possession of the smuggled goods is proved to have been in the possession of the accused, the burden of proof shifts on to the accused to prove the contrary state of things, if any. In this case, the accused has failed to discharge that onus and the Court presumes the existence of culpable mental state on the part of the accused under Section 138a of the Act. In this case, the accused has failed to discharge that onus and the Court presumes the existence of culpable mental state on the part of the accused under Section 138a of the Act. Exhibit-5 is another document alleged to have been recovered from the cabin of the accused by P. W. 2 and under Section 139 of the Act, the Court has to presume that the signature and every other part of such document which purports to be in the hand and signature of any particular person is in the persons's hand and singature. The document is also admissible under Section 139 (b) of the Act, and under sub-clause (c) the presumption as to the truth of the contents of such document also arises. This document regards another incriminating circumstances against the accused. ( 8 ) AT the trial, the defence was that the statements were obtained under threat and coercion while the accused was under detention by the Customs Officers. It could not be shown that P. W. 8 or any other Customs Officer offered any inducement or held out threat or promise to the maker. The testimony of P. W. 1 that the accused was arrested on 30-9-1980 is a mistake resulting from poor recollection of events. The observations of their Lordships in Vira Ibrahim's case may be referred to in this connection. Further defence was that the accused had no knowledge about the seized articles, that the store room could be opened with the master-key lying with the Master of the vessel and that Officers and other members of the crew had free access to the Provision Store meaning hereby that the accused had not the exclusive control and conscious possession over the seized articles P. W. s. 1,3,7 and 10 to 12 testified that the accused himself unlocked the store room with the key produced by him. P. W. 14 has deposed that the key of the store room remains with the Chief Steward and that the food stuff for daily requirement are brought out of the room under the direct supervision of the Chief Steward. The witness is an employee of the shipping agents not connected with the Customs department. P. W. 14 has deposed that the key of the store room remains with the Chief Steward and that the food stuff for daily requirement are brought out of the room under the direct supervision of the Chief Steward. The witness is an employee of the shipping agents not connected with the Customs department. Furthermore in view of the admissions of the accused and the presumptive evidence in the light of the enabling provisions of the Act pointed out earlier, proof of exclusive and concious possession is not necessary as required in cases of charge in under Sections 411 or 412 of the Indian Penal Code. The statement of the accused during his examination under Section 313, Code of Criminal Procedure that he saw the seized articles for the first time in Court is belied by his signature in SL. 1. Prosecution case was further assailed for non-examination of the Master or Captain of the vessel. Non-examination of the Officers of the vessel is not considered fatal and it is doubtful if any such Officer if examined would speak out the truth. The testimony of P. W. 13, principal executive of the Shipping Agents, who all along sympathised with the accused is a pointer in that regard. The search and seizure was criticised on the ground that P. W. 13 did not notice any ice flake on the seized articles. This was not unnatural because P. W. 13 had been to the vessel towards the evening and the searches had commenced at about 11 or 11-30 a. m. The reason why the seized articles were brought into the owner's cabin on the upper deck has been explained by some of the P. W. s. and also by P. W. 14 in the way that the store room was in the lower deck, where the passage was congested and the huge quantity of the seized articles could not be sorted out at that place. Even if there was any irregularity or illegality in search and seizure that would not affect the validity of subsequent investigation by the Customs Officers and this view was taken by Their Lordships in a case reported in (State of Maharastra v. Natwarlal ). Even if there was any irregularity or illegality in search and seizure that would not affect the validity of subsequent investigation by the Customs Officers and this view was taken by Their Lordships in a case reported in (State of Maharastra v. Natwarlal ). ( 9 ) THE trial court acquitted the accused mainly on three grounds, namely, (1) that the statements alleged to have been made by the accused were tainted because of his illegal detention thereby depriving him of any opportunity to defend; (2) that the prosecution failed to prove the exclusive control and conscious possession of the accused over the artcles seized and (3) that the search and seizure were illegal. All the three grounds have already been discussed and negatived. That detention of the accused was not illegal and that he was actually placed under arrest on 4-10-1980. It appears that the judgment under appeal was largely influenced by the court's bias that the accused was kept under illegal detention for 5 days and that is perhaps the reason why the court disbelieved the entire prosecution case unfolded by the Customs Officers. It would be important to note that the Customs Officers who deposed for the prosecution were of the ranks of Preventive Officers, Assistant and Deputy Collectors and Superintendents. It is preposterous to hold that all of them made false and motivated statements. It would be appropriate to quote in this context the following observations of their Lordships in the case of State of Gujarat v. Mohanlal Hitarnalji and Anr. reported in, "whether or not the Officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over-indulgent eye which sees no evil anywhere within the range of its eye sight", the learned Magistrate disposed of the case in utter disregard of the relevant provisions of the Act and the totality of evidence. ( 10 ) IT is true that nine years have elapsed since the order of acquittal, but for a time lag prosecution is in no way responsible. The long interval is not a good ground for non-interference particularly when in this case concerning is overwhelming and the order of acquittal is blatantly perverse. ( 10 ) IT is true that nine years have elapsed since the order of acquittal, but for a time lag prosecution is in no way responsible. The long interval is not a good ground for non-interference particularly when in this case concerning is overwhelming and the order of acquittal is blatantly perverse. It would be important to note that in the criminal revision the accused himself filed an application to the effect that he wanted to plead guilty and prayed for separate trial in so far as he was concerned undoubtedly justice should be done to the defence but at the same time prosecution must not also be prejudiced by any perverse findings. ( 11 ) THUS having regard to the totality of evidence and in the light of all that has been discussed above and also the conduct of the accused throughout, the appeal is allowed and the order of acquittal impugned is set aside. The accused respondent is found guilty of the offence punishable under Section 135 (1) (i) of the Customs Act, 1962 and is sentenced to rigorous imprisonment for two years and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months more. The accused is directed to surrender to the Court forthwith to serve the sentence. Criminal Revison No. 553 of 1982 ( 12 ) ON 22nd March, 1982 the petitioner A. H. Khan, Senior Preventive Officer of the Calcutta Customs, filed a revisonal application being Cr. Revision No. 553 of 1982 for quashing the criminal proceedings pending before the learned Chief Metropolitan Magistrate, Calcutta on the allegations inter alia that after the search of the vessel M. V. Murray Everett and seizure of certain articles, Chief Steward R. T. Cardinate made certain statements after his arrest without any incriminating cirucmstances directed against the petitioner. It was further alleged that the petition of complaint filed by Mr. M. Prosad did not disclose an offence under the Customs Act or any other Act against the petitioner and that the object of the complaint was to make out a ground for removing the petitioner from service. It was further alleged that the petition of complaint filed by Mr. M. Prosad did not disclose an offence under the Customs Act or any other Act against the petitioner and that the object of the complaint was to make out a ground for removing the petitioner from service. It was submitted that if the criminal proceeding on the basis of the said complaint was allowed to be carried on the same would amount to abuse of the process of the Court and hence there was a prayer for quashing the entire criminal proceedings by the court in exercise of the powers conferred under Section 482 Cr. P. C. On perusal of the petition of complaint filed by Mr. Prosad on 13-4-1981 with special reference to paragraphs 6,18,19 and 26 we are fully satisfied that prima facie a case of criminal conspiracy involving the petitioner has been made out in the petition of complaint and accordingly we find no reason to quash the impugned proceedings as prayed for. ( 13 ) NO mala fide intention on the part of the complainant is indicated in the complaint which discloses materials which formed the basis of a reasonable belief that the petitioner was a party to the conspiracy of smuggling goods into India in the past as also in the instant case. As regards the circumstances which would call for interference by the Court under Section 482 Cr. P. C. certain observations of the Supreme Court in the case of Mrs. Dhanalakshi v. R. Prasanna Kumar and Ors. reported in AIR 1990 S. C. 490 would be relevant in this context. "it is not, however, necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. " It was further observed that if on a consideration of the allegations, in the light of the statement of the complainant on oath it appears that the ingredients of the offence have been disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. The principles laid down by the Supreme Court in the cases of Sarada Prosad Sinha v. State of Bihar. Trilok Singh v. Satya Deo Tripathi 1980 Cr. The principles laid down by the Supreme Court in the cases of Sarada Prosad Sinha v. State of Bihar. Trilok Singh v. Satya Deo Tripathi 1980 Cr. L. J. 822 and Municipal Corporation of Delhi v. Purshottam Dass Jhunjhunwala were relied upon and the tendency to analyse the case of complaint in the light of the probabilities in order to determine whether a conviction would be sustainable or not was depricated. The assessment of the materials before the court would not be justified in quashing the criminal proceeding. Same principles were also laid down in a recent case reported in with further observation that the powers under Section 482. Cr. P. C. should be exercised "in rarest of rare cases". ( 14 ) HAVING regard to the allegations made in the petition of complaint and after taking into consideration the complaint as a whole involving the petitioner and other accused named in the said complaint we are firmly of the view this is not a fit case in which the High Court should interfere in exercise of its jurisdiction under Section 482, Criminal Procedure Code. It may be mentioned that the allegations that the complaint is bad for want of proper sanction was not pressed at the time of hearing. Accordingly, we dismiss the criminal revision and vacate the interim stay granted. The records be sent down to the court of the learned Metropolitan Magistrate, Calcutta, for trial of all the four accused named in the complaint excluding accused Rodolfo T. Cardiante alias Rudy.