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2009 DIGILAW 886 (PNJ)

Anisa Begum v. Asstt. Collector Of Customs

2009-05-07

A.N.JINDAL

body2009
Judgment 1. This petition is directed against an order dated 16-3-2002 passed by Additional Sessions Judge, Amritsar dismissing the appeal of the petitioner accused (herein referred as the petitioner) against the judgment dated 26-8-1997 passed by Chief Judicial Magistrate, Amritsar. However, the Appellate Court had reduced the sentence from three years to two years. 2. Brief facts of the case are that on 24-4-1990, the petitioner Anisa Begum arrived from Pakistan on L.C.S Attari road. After completion of health and immigration formalities she reported for customs clearance. On being asked by the Customs Inspector she declared that her baggage consisting of three packages containing about 100 Mts. Pak made Textile, one mixer-cum-grinder, 5 Kgs. of Ghee and some other clothes. 5 Kgs. of Ghee bearing marking Butter Oil 5 Kgs produce of Ireland was found to be heavier than the weight printed on it. Customs Officer got suspicious. On cutting the upper lid in the presence of the accused and independent witnesses, one automatic pistol with marking Cal 7.63 mm 30 with one spare magazine, one revolver No. 6927AA and one revolver without marking were recovered from the said tin of Ghee carried by the petitioner No documentary evidence could be shown by her regarding the possession of the aforesaid arms. The Customs Officer seized the aforesaid arms under Section 110 of the Customs Act. In her statement dated 24-4-1990 the petitioner admitted about the recovery of weapons from her baggage and further deposed that the tin of ghee containing weapons was delivered to her by one Sh. Iqbal in Pakistan and was to be delivered to Sh. Irshad or Nadeem at Delhi against remuneration of Rs. 2000/- out of which she was paid Rs. 1000/- in advance and remaining amount was to be paid at Delhi after delivery. Since the petitioner had contravened the provisions of the Import Control Order No. 17/55 issued under Section 3(i) of the Import and Export Control Act read with Sections 11 and 77 of the Customs Act, 1962 . Therefore, the complaint has been filed. 3. During pre-charge evidence, the complainant examined Sh. Y.B. Chhibber, Inspector Customs P.W. 1 and Sh. J.P. Gupta, Inspector Customs P.W. 2 and closed the evidence. 4. The petitioner was charge sheeted under Section 135 of the Customs Act and a separate case under Section 25 of the Arms Act was registered against her. 5. 3. During pre-charge evidence, the complainant examined Sh. Y.B. Chhibber, Inspector Customs P.W. 1 and Sh. J.P. Gupta, Inspector Customs P.W. 2 and closed the evidence. 4. The petitioner was charge sheeted under Section 135 of the Customs Act and a separate case under Section 25 of the Arms Act was registered against her. 5. It would be worthwhile to mention that she has been acquitted in the Arms act case. However she was convicted and sentenced under Section 135 of the Customs Act (i.e. present case). 6. The appeal preferred by her was also dismissed. The only argument advance by counsel for the petitioner is that in case under Section 25 of the Arms Act registered against the petitioner which had arisen out of the same transaction she was acquitted by the Court of Additional Sessions Judge, Amritsar vide judgment dated 1-3-96, therefore, the present case which is also based on the same evidence should also meet the same fate. To the contrary learned counsel for the respondent has submitted that in case under Arms Act she was acquitted merely on the technical grounds, therefore, the same should not effect the conviction of this case. No merit is found in the contention of the learned counsel for the respondent. The judgment Ex. D-1 reveals that the Court acquitted the accused not merely on the ground of non-sealing of the revolver at the spot, rather Addl. Sessions Judge had also observed that besides non-sealing of the revolver there was delay of two months in sending weapons for testing to the laboratory and third infirmity was found that the Sub-Inspector instead of sealing the weapon at the time of recovery had handed over the same to another person who was not examined by the prosecution. The fourth infirmity found was that the weapon was not sent to the armour. 7. In these circumstances the inference would be drawn that petitioner was not acquitted of the charges under Section 25 of the Arms Act merely on the technical grounds. Non-sealing of the arms and handing over the same without sealing to other person is a serious defect in case and leads this Court to draw the inference that it can not be said by the certainty that the weapon so produced by the Custom Officer could not be said to be the same as recovered from the petitioner. Non-sealing of the arms and handing over the same without sealing to other person is a serious defect in case and leads this Court to draw the inference that it can not be said by the certainty that the weapon so produced by the Custom Officer could not be said to be the same as recovered from the petitioner. Similarly in the absence of the report of Armour, it can not be said whether the pistols so recovered were toy pistols. 8. Since the judgment D-1 passed by Additional Sessions Judge has become final as no further appeal or revision has been preferred against the said judgment of acquittal, therefore, the same having probative value could be relied upon to decide the fate of the case which arose out of the same transaction and is based upon the recovery of the same weapons which were allegedly recovered from the petitioner. Since same evidence which has already been disbelieved in the case under the Arms Act, now the same can not be believed in the present case. The principle of stare decisis certainly is applicable to the facts of the present case. 9. Resultantly, I accept the petition, set aside the impugned judgment and acquit the petitioner of the charges framed against her. Bail bond and surety bond furnished by her stand discharged. Fine, if deposited by her, be refunded.