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2020 DIGILAW 409 (GUJ)

Gulmohmad Umar Sap v. State of Gujarat

2020-03-05

A.S.SUPEHIA

body2020
JUDGMENT : A.S. SUPEHIA, J. 1. The present revision application filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “the Code”) emanates from the judgment and order dated 16.04.1998 passed by the Court of Chief Judicial Magistrate, Kachchh-Bhuj in Criminal Case No. 468 of 1986 and the judgment and order dated 30.10.2004 passed by the Court of Additional Sessions Judge, Kachchh-Bhuj, in Criminal Appeal No. 8 of 1998. 2. It emerges from the facts that there were total 20 accused persons, who were involved in the alleged offence punishable under Section 135 of the Customs Act, 1962 (for short “the Act”) and Section 85 of the Gold (Control) Act, 1968. The applicant is arraigned as an accused no. 13. It appears that there has been some typographical error with regard to his name as in the proceedings he has been named as Gulmohmad Umar Shaikh, whereas the present revision is filed by the applicant by the name of Gulmohmad Umar Sap. The present applicant along with other applicants, except the accused no. 19-Amrutlal Chandmal Jain are convicted for the offence under Section 135 of the Act and Section 85 of the Gold (Control) Act, 1968 and were sentenced for 1 year simple imprisonment and 6 years respectively. Thereafter, it appears that only 12 accused, including the applicant challenged their conviction before the Court of Additional Sessions Judge, Kachchh-Bhuj and by the judgment and order dated 13.10.2004, the Additional Sessions Judge, Kachchh at Bhuj, rejected the appeal and confirmed the order passed by the Chief Judicial Magistrate, Kachchh at Bhuj. Being aggrieved and dissatisfied, the applicant has filed the captioned revision application. 3. Learned advocate Mr. P.Y. Divyeshvar appearing for respondent no. 2 has submitted that it appears that only the applicant, accused no. 13 has challenged the conviction and sentence, whereas the other accused have accepted the same. 4. Learned Senior Counsel Mr. B.B. Naik appearing for the applicant has submitted that the impugned judgment and order convicting the applicant is required to be quashed and set aside since the same is premised solely on the statements recorded under Section 108 of the Act. 4. Learned Senior Counsel Mr. B.B. Naik appearing for the applicant has submitted that the impugned judgment and order convicting the applicant is required to be quashed and set aside since the same is premised solely on the statements recorded under Section 108 of the Act. He has submitted that the applicant in the statements, which were recorded under the provisions of Section 108 of the Act, had denied his involvement in the offence, however, he is solely convicted on the basis of the statements of the other accused persons, which were recorded under Section 108 of the Act. 5. Learned Senior Counsel Mr. B.B. Naik appearing for the applicant has submitted that the judgment and order passed by the Chief Judicial Magistrate, Kachchh at Bhuj, which is confirmed by the Additional Sessions Judge, Kachchh at Bhuj, suffers from illegality and infirmity that the statements, which were recorded under Section 108 of the Act of all the accused, were required to be dealt with separately with regard to their complicity in the offence. He has invited the attention of this Court to the statements recorded by the Custom Officer under the provisions of Section 108 of the Act of the present applicant at Exh.336, in which he has specifically stated that he does not know the persons, who had handed over the said contraband articles and is also unaware to whom the same is handed over. He has also stated that he has not aware about the concealed items somewhere in the vessel, however, it is stated by him that though he was aware about concealed drawers in the vessel, but he was not aware at which place they were. 6. Learned Senior Counsel Mr. B.B. Naik for the applicant has submitted that despite the aforesaid categorical statement made by the applicant that he is not involved in any offence and there was no admission by him, he was convicted for the offence on the basis of the said statement recorded under Section 108 of the Act. He has submitted that except the aforesaid statement, there is no other evidence emerging from the record connecting the applicant to the alleged offence. He has further contented that the applicant cannot be vicariously held liable for the offence committed by other persons or other crew members of the vessel in absence of exculpatory evidence. He has submitted that except the aforesaid statement, there is no other evidence emerging from the record connecting the applicant to the alleged offence. He has further contented that the applicant cannot be vicariously held liable for the offence committed by other persons or other crew members of the vessel in absence of exculpatory evidence. He has placed reliance on the judgment of the Supreme Court in the case of Haricharan Kurmi vs. State of Bihar, AIR 1964 SC 1184 and submitted that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. He has submitted that in the instant case, there is absolutely no evidence against the present applicant to connect him with the alleged offence and the statement under Section 108 of the Act can be used as corroborative piece of evidence and cannot be made a substantive evidence for convicting the accused in absence of any other cogent and relevant evidence available on the record. Thus, he has submitted that the impugned judgment and order is required to be quashed and set aside in absence of any evidence brought by the prosecution connecting the present applicant with the offence and the role played by the applicant in the alleged offence. Thus, he has submitted that the conviction recorded and confirmed by both the courts below are required to be set aside. 7. Per contra, learned advocate Mr. P.Y. Divyeshvar for the respondent no. 2 has submitted that the conviction of the applicant for the aforesaid offence under the provisions of the Act and the Gold (Control) Act, 1968 do not require any interference since the evidence reveals the complicity of the applicant in the offence as he was found on the vessel, wherein the contraband articles were found. It is submitted by him that the statements, which were recorded under the provisions of Section 108 of the Act reveal that the crew members of the vessel, who were acting in connivance with each other for smuggling the aforesaid articles and each one of them had their share. It is submitted by him that the statements, which were recorded under the provisions of Section 108 of the Act reveal that the crew members of the vessel, who were acting in connivance with each other for smuggling the aforesaid articles and each one of them had their share. He has submitted that the evidence reveals that there has been active role played by the applicant and other crew members, except the accused no. 19, who has been rightly acquitted in the offence. It is submitted by him that the inquiry, which is made by the custom officer, clearly reveals that all the accused have acquired the possession of the smuggle goods knowingly and had concealed the same. Thus, he has submitted that the accused have committed offence punishable under Section 135 of the Act as well as Section 85 of the Gold (Control) Act, 1968 by playing an active role in the entire episode and hence, the conviction order passed by the court of Chief Judicial Magistrate, Kachchh-Bhuj, which is confirmed by the Court of Additional Sessions Judge, Kachchh-Bhuj may not be set aside. 8. I have heard the learned advocates appearing for the respective parties. This Court has perused the impugned judgment and orders as well as the evidence emerging from the record and proceedings. 9. The incident is of 1985. It is the case of the prosecution that the vessel, known as MSV Laxmi, when arrived at Mandvi Port from Dubai on 13.02.1985, the same was searched by the customs officials on 14.02.1985, in which the gold biscuits valued at Rs. 24,89,820/- 231 watches amounting to Rs. 70,560/- were found from the concealed places. Thereafter, a criminal complaint was lodged on 25.02.1986 against 20 persons, including the owner of the vessel. 10. The learned Chief Judicial Magistrate, Kachchh at Bhuj, directed the summons to be issued against the accused persons for the offences punishable under Section 135 of the Act and Section 85 of the Gold (Control) Act, making the same returnable on 29.03.1986. Thereafter, initially, the evidence of the prosecution as recorded by the Judicial Magistrate as per the provisions contained in Section 244 of the Code. Thereafter, initially, the evidence of the prosecution as recorded by the Judicial Magistrate as per the provisions contained in Section 244 of the Code. After recording preliminary evidence of the prosecution, the Chief Judicial Magistrate framed charged against the accused persons and proceeded with the trial and the evidence was recorded and, after hearing the arguments of the defence counsel and the prosecution, the Chief Judicial Magistrate, Kachchh at Bhuj, by order dated 16.04.1998 convicted accused nos. 1, 2, 4, 6, 8 to 14 for the offence punishable under Section 135 of the Act and Section 85 of the of the Gold (Control) Act and acquitted accused no. 19 of the said offence. Thereafter, after hearing the accused persons, the Chief Judicial Magistrate, Kachchh at Bhuj, on the same day, imposed sentence of one year of rigorous imprisonment and a fine of Rs. 2,000/- in default to undergo simple imprisonment of three years for the offences under the Act, whereas, simple imprisonment of six months and fine of Rs. 500/- in default one month simple imprisonment was imposed for the offence punishable under the of the Gold (Control) Act. The Chief Judicial Magistrate, Kachchh at Bhuj, directed the sentences to run concurrently for both the offences. 11. Being aggrieved by the judgment and order dated 16.04.1998 passed by the Chief Judicial Magistrate, Kachchh at Bhuj, in Criminal Case No. 468 of 1986, the applicant preferred an appeal alongwith other accused persons, being Criminal Appeal No. 8 of 1998 in the court of the Sessions Judge, Kachchh at Bhuj. 12. The Additional Sessions Judge, Kachchh at Bhuj, by judgment and order dated 30.10.2004 dismissed the Criminal Appeal No. 8 of 1998 filed by the applicant and other accused persons. 13. The threadbare examination of the findings of the trial court as well as the evidence on record, it is revealed that the applicant has been convicted for the offence under Section 135 of the Act and Section 85 of the Gold (Control) Act, 1968 only on the statements recorded under Section 108 of the Act recorded by the Superintendent of Customs, Shore Guard, Mandvi, Kuchchh. It is emerging from the evidence that the statements of the co-accused, who were present on the vessel, were recorded under Section 108 of the Act and the statement of the present applicant has been recorded at Exh.336. It is emerging from the evidence that the statements of the co-accused, who were present on the vessel, were recorded under Section 108 of the Act and the statement of the present applicant has been recorded at Exh.336. A careful reading of the statement of the applicant reveals that he has categorically denied his involvement in the offence and has also stated that he had no knowledge of such contraband articles being carried in the vessel. The findings of the trial court are blissfully silent on the discussion of any evidence connecting the present applicant with the alleged offence committed by him, except the statement recorded under Section 108 of the Act. The findings of the trial court also reveal that the statements recorded under Section 108 of the Act with regard to the other accused have been independently dealt with without corroborating the same with other evidence. 14. It is also emerging from the evidence that while granting the sanction, the sanctioning authorities have only referred to 4 accused persons i.e. Yasinnoor, who was said to have delivered the contraband articles to Hasam Ismail Jadeja, Dubai, Farook Allabax Vadnagarwala, who was to receive the said goods and Amrutlal Chandmal Jain, Ahmedabad, who was to receive the said goods from Farook Allabax Vadnagarwala. Thus, the sanction order dated 12.12.1985 at Exh.3 does not in any manner implicate the present applicant or any other crew members except the Tindel of the vessel. 15. The applicant in his statement recorded under Section 108 of the Act had specifically denied his involvement in the offence and hence, in wake of his defence in the statement, his involvement in the offence was required to be established by independent evidence. In absence of any such findings or evidence with regard to establishing his guilt in the aforesaid offence, the conviction of the present applicant by placing reliance on the statements recorded under Section 108 of the Act of all the accused the trial court has misdirected itself in recording the conviction. As per the observations made by the Supreme Court in the case of Haricharan Kurmi (supra) confession of the co-accused persons can be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. 16. 16. As narrated hereinabove, the entire findings of the trial court are blissfully silent with regard to the corroborative evidence and hence, the statements or the confession of the co-accused cannot be treated as substantive evidence. There is no other evidence emerging from the record implicating or establishing the role of the present applicant with the offence and hence, the judgment and order of the trial court convicting the present applicant for the aforesaid offence is required to be quashed and set aside. The judgment and order of both the courts below suffer from the said infirmity. The revisionist has carved out an exceptional case in the present revision application, which calls for interference while exercising the revisional powers conferred under section 397 read with section 401 of the Code. Since, the incident is of 1985 and the status of the accused is also unknown, no fruitful purpose will be served in remanding the matter for re-trial. 17. As a sequel, the judgment and order dated 16.04.1998 passed by the Court of Chief Judicial Magistrate, Kachchh at Bhuj in Criminal Case No. 468 of 1986 and the judgment and order dated 30.10.2004 passed by the Court of Additional Sessions Judge, Kachchh at Bhuj in Criminal Appeal No. 8 of 1998 are hereby quashed and set aside. 18. The present revision application succeeds. R&P be sent back to the concerned trial court forthwith. The bail bonds shall stand cancelled.