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2009 DIGILAW 1127 (RAJ)

Superintendent (Prosecution) v. Sita Ram Somani

2009-04-24

MAHESH BHAGWATI

body2009
JUDGMENT Hon'ble BHAGWATI, J.—Challenge in this appeal is to the judgment dated 9th September, 1996 rendered by Special Judicial Magistrate (Economic Offences) Rajasthan Jaipur, whereby he acquitted the accused respondents Sita Ram Somani and Om Prakash Soni in the offence under Section 135 of the Customs Act, 1962 (herein after referred to as "Act, 1962"). 2. The nub of the prosecution story is as under: That on a prior information regarding illicit transaction of contraband gold the headquarter's Customs Preventive party reached the vicinity of residence of Sita Ram Somani, "Somani Bhavan", Churu Ka Rasta, Jaipur on 1.1.1985. One Om Prakash while coming out of Somani Bhavan with a jute bag in his hand at about 10.30 hours reached at his Scooter No. RNB 5386 and kept the jute bag in the dicky of his Scooter. The Preventive Party nabbed him before he could start the Scooter. The search of the jute bag resulted in the recovery of 8 gold biscits with marking indicating their foreign origin. On search of his person, a piece of paper slip bearing the particulars of gold transaction and 430/- rupees were also recovered. Pursuant to the information furnished by Om Prakash Soni, the Preventive Party took the search of the residential premises of Sita Ram Somani situated at Somani Bhawan, which resulted into recovery of 36 gold biscuits and US Dollars 12100 having marking indicating their foreign origin. Both the persons could not produce any evidence in proof of legal import/possession of the recovered gold and US Dollars, as such all were seized under Section 110 of the Customs Act, 1962 and under Section 66 of the Gold (Control) Act, 1968 on a reasonable belief that the same were imported/required/possession by them in violation of the provisions of Section 11 of the Customs Act, 1962 and Section 13 of the Foreign Exchange Regulations Act, 1973 and Section 8(1) of the Gold (Control) Act, 1968. The purity of the 44 gold biscuits was found to be 24 carats. Both the persons admitted the recovery of gold biscuits from their possession. Their statements were recorded. After completion of enquiry, Collector Customs and Central Excise, Jaipur accorded sanction to prosecute both Sita Ram Somani and Om Prakash Soni and the Superintendent (Prosecution) Customs and Central Excise) after due enquiry filed a complaint against them in the Court of Special Judicial Magistrate (Economic Offences) Rajasthan, Jaipur. 3. Their statements were recorded. After completion of enquiry, Collector Customs and Central Excise, Jaipur accorded sanction to prosecute both Sita Ram Somani and Om Prakash Soni and the Superintendent (Prosecution) Customs and Central Excise) after due enquiry filed a complaint against them in the Court of Special Judicial Magistrate (Economic Offences) Rajasthan, Jaipur. 3. Both the respondents were indicted for the offence under Section 135(1) of the Customs Act, 1962, who pleaded not guilty and claimed to be tried. In order to further its version the prosecution examined in all five witnesses. In their examination under Section 313 of Cr.P.C., the accused respondents claimed innocence and pleaded their false implication by the customs authorities. On completion of trial both the respondents were acquitted for the alleged offence as indicated hereinabove. 4. Heard the learned counsel for the appellant as also the learned counsel appearing for the accused respondents and with their assistance carefully scanned the relevant material on record. 5. The learned counsel for the appellant reiterated the grounds during his arguments which have been taken in the memo of appeal. He contended that the learned trial Court has failed to properly appreciate the evidence of the prosecution witnesses. In spite of the admission being made by the respondents during enquiry, the learned trial Court has acquitted the respondents of the alleged charge and thus committed an error of law. He has further canvassed that the admission made by the accused respondents is tantamount to their confession under Section 108 of the Act, 1962. So far as the purity of Gold is concerned, the learned counsel has submitted that the marking indicating on the biscuits was per se the proof of their purity. The impugned judgment of the lower Court suffers from serious infirmity and the prosecution has established the offence under Section 135 of the Act 1962 against the respondents, hence the order of acquittal be set aside and instead the respondents should be convicted for alleged offence. 6. Per contra, learned counsel for the accused respondents has supported the impugned judgment of the learned trial Court. 6. Per contra, learned counsel for the accused respondents has supported the impugned judgment of the learned trial Court. He has further submitted that the learned trial Court has discussed the evidence of the prosecution witnesses at length and in view of the pronouncement of the Hon'ble Supreme Court made from time to time, he arrived at the conclusion that the offence under Section 135 of Act, 1962 was not proved against them beyond reasonable doubt and thus the learned trial Court has rightly acquitted, them which calls for no intervention. 7. The fact situation emerging in the instant case is thus: (i) All the five prosecution witnesses belong to Customs Department. (ii) No independent Panch witness has been examined to support the prosecution case. (iii) The Panchnama Ex. P. /1 and Ex. P./2 are said to have been prepared in the presence of two independent witnesses but the same have not been examined to corroborate the same. (iv) The confession statement of both the accused respondents is found to be recorded under Section 108 of the Act, 1962 but this confession is also found to have been retracted by both of them vide their application Exp. D/1 and D/2 addressed to Collector, Customs Central Excise, Jaipur. (v) The respondents were arrested on 1st January, 1985 and their admission was recorded on 6th January, 1985 when they were in custody. Thus this statement is hit by sub-clause 3 of Article 23 of the Constitution of India. (vi) 44 Gold biscuits are alleged to have been recovered from the possession of the accused respondents but the same were not produced in the Court during trial for their identification. Thus, it is not proved as to whether any gold biscuit was ever recovered from their possession. (vii) The recovery of gold biscuits from the possession of the accused respondents cannot be proved merely by way of exhibiting the recovery memo. (viii) No certificate issued by any certified gold smith with regard to the purity of Gold, has been produced in evidence. Hence, it could not be ascertained as to whether the recovered so called gold biscuits were made of gold or of other material and what was their purity. 8. Now adverting to the statement of prosecution witnesses namely PW.1 Amit Kumar Dey, PW.2 H.L. Loothra, PW. 3 J.C. Khatri, PW. 4 J.L. Kapoor and PW. Hence, it could not be ascertained as to whether the recovered so called gold biscuits were made of gold or of other material and what was their purity. 8. Now adverting to the statement of prosecution witnesses namely PW.1 Amit Kumar Dey, PW.2 H.L. Loothra, PW. 3 J.C. Khatri, PW. 4 J.L. Kapoor and PW. 5 Rajesh Basavada, it is noticed that their statements are contradictory in material particulars. PW.1 Amit Kumar Dey deposed that 8 Gold biscuits were recovered from the possession of Om Prakash Soni whereas PW. 4 Shri J.L. Kapoor stated that 15-15 gold biscuits were recovered from them. Similarly the witness PW. 4 Mr. Kapoor deposed that Panchnama was prepared at the residence of Raj Kumar whereas it does not bear his signatures thereon. The evidence of all the witnesses of one department does not stand corroborated by any independent witness. Thus, the evidence of recovery of gold biscuits suffers from serious infirmity. 9. It was incumbent on the Superintendent Customs to produce the allegedly recovered 44 gold biscuits in the Court during trial for their identification from the witnesses who indeed made the recovery thereof from the possession of the accused respondents. It seems that the Superintendent Customs Department deliberately did not produce these biscuits in the Court during trial with a view to cause illegal benefit to the respondents, for which a disciplinary action is required to be taken against him by his senior authorities. Non production of recovered gold biscuits in the Court during trial is a serious lapse in the prosecution case. Non-production of the biscuits also casts doubt about their recovery from the possession of the accused respondents. It casts more doubt in the light of their retracted confession. Thus, it is not proved that the said gold biscuits were ever recovered from their possession. No evidence with regard to purity of gold has been produced by the prosecution. Thus it is also not proved that the said recovered 44 biscuits were made of gold. 10. In the ultimate analysis, I am constrained to hold that the prosecution has miserably failed to fasten the guilt upon the accused respondents. The whole prosecution case is full of material contradictions and grave irregulari-ties which lead me to hold the impugned judgment to be just and proper. The impugned judgment is cogent and well merited and does not suffer from any infirmity. The whole prosecution case is full of material contradictions and grave irregulari-ties which lead me to hold the impugned judgment to be just and proper. The impugned judgment is cogent and well merited and does not suffer from any infirmity. I am in unison with the finding of acquittal arrived at by the learned trial Court and the impugned judgment does not call for any intervention. 11. For these reasons, the appeal filed by the Superintendent (Prosecution), Customs and Central Excise, Collectorate, Jaipur being bereft of merits stands dismissed. The bail bonds of the accused respondents namely Sita Ram Somani and Om Prakash Soni are ordered to be cancelled.