ORDER : 1. This Revision Application is filed challenging an order passed by the Additional Sessions Judge, Devbhoomi Dwarka at Khambhaliya, dated 04.10.2017 rendered in Criminal Appeal No.4 of 1996, whereby the respondent – accused came to be acquitted of charge under Section 135(1)(b) of the Customs Act, 1962 (hereinafter referred to as “the Act”), in an appeal preferred by him. 2. As per the prosecution case, on a complaint filed by the Department, that on 14.05.1986, Police Sub Inspector of Salaya received an intelligence/ secret information regarding bringing of smuggled goods by a Vessel M.S.V. Sahe-Al-Zuberi No.BDI-20, lying at Salaya Jetty, whereupon he informed the Customs Officers at Salaya, who boarded the vessel, that on rummaging the vessel, it was found to contain several goods of foreign origin like video cassettes, recorders, synthetics fabrics etc., for which the crews on Board the vessel could not tender any documents showing lawful import/possession thereof. The said goods worth of Rs.3,84,657/- were placed under seizure as detailed and described in the panchnama dated 14.05.1986 made in this behalf, in the reasonable belief that the same are smuggled goods and therefore, liable to be confiscated under “the Act”. The said goods were confiscated as per the Additional Collector (Preventive) Gujarat, Ahmedabad vide Adjudication Order. It is further alleged in the complaint that it was revealed that the said vessel Sahe-Al-Zuberi BDI No.20 was tandel by Shri Bashir Hasan Sumbhania – present respondent accused who had loaded smuggled goods in the vessel while it was in Dubai. It is further alleged in the complaint that the said vessel was used for importation and carrying the said contraband goods and was taken under seizure 15.05.1986 under regular panchnama dated 15.05.1986 on a reasonable belief that the said vessel was used for carrying the smuggled goods. The owner of the vessel is Smt. Sakina Hasam Burhani. It is further alleged that the said vessel had 15 crews on the vessel including the Tindel Shri Basir Hasam Sumbhaniya – respondent accused. 2.1 It is further alleged that the Customs Officer of Salaya, on receipt of information through Salaya Police, recovered 34 packets of contraband goods on 14.05.1986 at about 3:30 hours from vessel, but not a single crew, on demand, of said vessel could produce any documents showing legal import and possession and control in respect of the said 34 packets. 2.1 It is further alleged that the Customs Officer of Salaya, on receipt of information through Salaya Police, recovered 34 packets of contraband goods on 14.05.1986 at about 3:30 hours from vessel, but not a single crew, on demand, of said vessel could produce any documents showing legal import and possession and control in respect of the said 34 packets. It is further alleged that immediate investigation was carried out and it revealed that one Bashir Hasam Sumbhaniya of vessel Sahe-Al-Zuberi BDI No.20, loaded these 34 packets of contraband goods valued at Rs.3,84,657/- from Dubai for Salaya and before it reached to Salaya, these 34 packets lying in the vessel were unloaded in a mechanized fishing boat by the crews of the vessel, near Chak Island as per the instructions of the Tindel, the vessel then arrived at Salaya Port and it was boarded by the Customs Staff at Salaya. Nothing objectionable was found inside the vessel at the time of boarding. Then after, the Customs Officers left the vessel. The Tindel of the vessel directed the crews that 34 packets already unloaded in the fishing boat are to be reloaded in the vessel by tonight i.e. early hours on 13.5.1986, night tide. Accordingly, the crew on the Board of the vessel reloaded the said packets of the contraband goods from a mechanized fishing boat to vessel and in view of this, the said persons were arrested and produced before the Chief Judicial Magistrate at Jamnagar on 17.05.1986. 2.2 It is further alleged that statements of all the crews and Tindel were recorded under Section 108 of “the Act” before the Superintendent of Customs, Salaya, and in view of all these, Shri Bashir Hasam Sumbhaniya has committed an offence under Section 135 of “the Act”, inasmuch as he was knowingly concerned with the aforesaid concealing, harboring, desisting, transporting or in any other manner dealing with the said smuggled goods which he knew or had reason to believe that the same are liable to confiscation under the provisions of “the Act”. The complaint was filed on the aforesaid grounds by the Superintendent of Customs on 03.03.1987. 2.3 As coming out from the Appellate Court’s decision, it is argued on behalf of the respondent – accused that on 12.05.1986 initially when the vessel came to Salaya, nothing has been found. The complaint was filed on the aforesaid grounds by the Superintendent of Customs on 03.03.1987. 2.3 As coming out from the Appellate Court’s decision, it is argued on behalf of the respondent – accused that on 12.05.1986 initially when the vessel came to Salaya, nothing has been found. Hence, the respondent – accused, Tindel was signoff from the vessel and was allowed to go. It is further revealed that an old appeal when taken up for hearing, none appeared for respondent No.1 therein i.e. the present petitioner. Therefore, again notice came to be issued to the Department – present petitioner and thereafter, learned advocate Ms. H.D.Joshi, appeared and filed the vakalatnama on 02.02.2017. However, as recorded in para-5 thereof, more than sufficient opportunities were granted to appear to make the submission but she failed to appear before the Court and failed to make any submissions. That constrained the Appellate Court to hear and conclude the appeal, closing right to make submission by the learned advocate for the respondent – Department therein i.e. present petitioner. From the impugned judgment and order, it appears that on 12.05.1986, when ship arrived from Dubai, Customs Department inquired into and first time found nothing on rummaging of ship. 3. Heard Mr. Nikunt Raval, learned advocate for the petitioner. He has submitted that since the appellate Court has not considered the evidence in its true perspective, the findings and conclusion recorded by the learned Appellate Judge are required to be quashed and set aside. It is further submitted that smuggled goods found from the ship where the respondent – accused is Tindel and therefore, he is responsible for the explanation how and in what manner it came into the ship. It is further submitted that the statements under Section 108 of the crew members have been recorded implicating the respondent – accused and therefore, the appellate Court could not have acquitted him of the charge. Thus, it is submitted that this revision application is required to be admitted and allowed. 4. However, pursuant to the information when Custom Department searched the ship, in absence of any person on board, they found objectionable goods, said to be imported goods. However, at the time when search was carried out on 14.05.1986, that too, in presence of Police, there was none on board ship. 4. However, pursuant to the information when Custom Department searched the ship, in absence of any person on board, they found objectionable goods, said to be imported goods. However, at the time when search was carried out on 14.05.1986, that too, in presence of Police, there was none on board ship. Merely because respondent – accused was Tindel of the ship, he cannot be held responsible or accountable for the said goods, if it is found after two days of clearing him and other crew members of any objectionable articles when duly searched by the authority on 12.05.1986. To prove the theory of prosecution that while ship was coming from Dubai, goods were unloaded in a mechanized fishing boat near Chak Island as per the instructions of the Tindel, the vessel arrived at Salaya and it was boarded by the Customs Staff and nothing objectionable was found at the time of boarding by Custom Department. After Custom Officer left the vessel, the Tindel of vessel directed the crews that 34 packets are to be reloaded by tonight on 13.05.1996. As such, prosecution has miserably failed to prove that, as recorded by the Appellate Court, what is pleaded in a prosecution case by way of leading evidence on record, as such, the appellate Judge has held that the statement of crews – Khalasi under Section 108 of “the Act” is not admissible in evidence and thereby, prosecution has failed to bring on any record as to from where and how the smuggled goods came in vessel but as an accused was Tindel of the vessel, he cannot be held responsible, in absence of any cogent evidence against him, for the goods found in the vessel after two days of examination by custom officers. 4.1 After quoting Section 123 of “the Act” in respect of burden of proof, since none was found present on board when after two days Custom Department searched the vessel, it is for the Department to prove the same and no presumption can be raised against the respondent – accused, merely because he was Tindel of the ship and found not present when on 14.05.1986, searched was carried out. This has to be considered along with the fact that on 12.05.1986 when ship was searched by the Custom Officer on arrival from Dubai in presence of Tindel as also all crew members, nothing objectionable found by them. This has to be considered along with the fact that on 12.05.1986 when ship was searched by the Custom Officer on arrival from Dubai in presence of Tindel as also all crew members, nothing objectionable found by them. Therefore, relying on decision in the case of Asst. Collector of Customs V. Pratap Rao Sait and Anr. reported in 1972 Criminal Law Journal 1135, the Trial Court shifted the burden on respondent – accused in absence of essential ingredients of Section 123 are fulfilled, even no presumption could be raised against the respondent – accused as it was never found in possession of the respondent – accused or constructive possession of him. It is further recorded by the learned Judge that merely because foreign markings are found on the goods, it would not be sufficient to raise a presumption under Section 106 of the Evidence Act. While passing an order of acquittal in favour of the respondent – accused, the appellate Court has observed that the Trial Court specifically concluded that the prosecution has failed to prove that the accused is the owner of smuggled goods and also held that the prosecution has failed to prove that how the smuggled goods were loaded and unloaded and again reloaded in the vessel. However, it wrongly concluded that there is a reason to believe that accused must be the owner of the smuggled goods in view of Section 123 of “the Act”. However, as observed by the Appellate Court, once at the time of seizure nothing is found from the person or possession of the respondent – accused or nothing is found from his constructive possession also, burden nowhere shifted on the accused but prosecution had to prove that fact by leading cogent evidence. 4.2 From the analysis of the evidence brought on record, learned Judge has clearly observed that when the first search was carried out on 12.05.1986, nothing objectionable was found therein and thereafter it is not the case of the prosecution that vessel MSV Sahe-Al-Zuberi No.BDI-20 again travelled and returned on 14.05.1986, and when on 14.05.1986 the said vessel was searched, the said smuggled goods were seized. The appellate Court has concluded that the prosecution has failed to prove the ownership and possession of the smuggled goods of the accused and therefore, accused cannot be connected with the commission of crime. The appellate Court has concluded that the prosecution has failed to prove the ownership and possession of the smuggled goods of the accused and therefore, accused cannot be connected with the commission of crime. When the smuggled goods were recovered from the vessel, accused was not present and the said search did not inspire confidence, the said search and seizure require support from the independent witnesses, such as e.g. panch witness, but they have not supported the case of the prosecution. Not only that, another panch witness, though available, was not examined by the prosecution in their support. Though one of the panch witnesses was examined being witness No.5 – Umarali Subhmaniya, it appears that a credibility of his deposition as a panch witness was challenged by the accused by way of cross examination that he has an axe to grind against him, as he was facing a case for maintenance which was suspected to be prosecuted at the instance of the present accused wherein warrant came to be issued against him and therefore, he was inimical to the accused. Though said suggestion put in the cross examination by the accused to the witness denied, keeping in mind the other evidence available on record that despite rummaging the ship on arrival from Dubai on 12.05.1986 by Custom Authority, letting off crews along with Tindel on that day, and after two days thereof, in absence of any of the crew members or even respondent – accused, Tindel, in ship, in absence of any credible evidence led by the prosecution that it was Tindel who had himself put it back in the ship, as per the prosecution case or he showed to it that it should be placed in the ship, he cannot be convicted for the same. 4.3 As observed by the Appellate Court, nothing incriminating found in the statement of the respondent – accused recorded under Section 108 of “the Act” and therefore, there is no question of basing conviction relaying on the said statement, even if it is admissible against the accused. As observed by the Appellate Court dealing in detail with the oral evidence of PW-1 and 2 as also seizure list Exhibit -3, it concluded that neither independently nor conjointly it proves that smuggled goods of foreign origin, which was smuggled into India, that too, by the respondent – accused. As observed by the Appellate Court dealing in detail with the oral evidence of PW-1 and 2 as also seizure list Exhibit -3, it concluded that neither independently nor conjointly it proves that smuggled goods of foreign origin, which was smuggled into India, that too, by the respondent – accused. If it is not proved that seized goods are imported from the outside India, even such goods are not liable for confiscation under Section 111 of “the Act” and consequently no offence under Section 135(1)(b) of “the Act” can be said to have committed by the accused. In concluding para, at page -23, it is held by the learned Appellate Judge that the evidence on record does not prove that the smuggled goods which was seized from the vessel, the accused being the Tindel, was of foreign origin and liable to be confiscated under Section 111 of “the Act”. In that context, the sanction order of the Collector, Central Excise and Customs, is examined, it was found to be not with due application of mind and therefore, vitiated. 5. More surprisingly, though statements under Section 108 of “the Act” of the crew members recorded, as can be read from the impugned judgment and order, those crew members were examined and therefore, statements under Section 108 of those witnesses – crew members cannot be relied on for any purpose. At the same time, the statement recorded under Section 108 of “the Act” of the accused, even if it is said to be admissible in evidence, it is found exculpatory and therefore, it has no value to convict the accused with the crime alleged against him. Even statement of one Ishak Jusab Sumra (crew member) came to be recorded vide Exhibit -126 and is found nothing supported the case of the prosecution and therefore, he was declared hostile. As coming out from the judgment of the appellate Court, one Hanif Hasam (panch witness) to the recovery examined by the prosecution has also not supported the case of the prosecution. 6. As coming out from the judgment of the appellate Court, one Hanif Hasam (panch witness) to the recovery examined by the prosecution has also not supported the case of the prosecution. 6. Having examined the impugned judgment and order, in detail, of the appellate Court acquitting the accused as also the findings recorded by the Trial court, I see no reason to interfere with the order of acquittal recorded by the appellate Court, in absence of any concrete material and arguments holding accused guilty of the offence alleged, while exercising revisional jurisdiction and therefore, I see no reason to entertain this revision application. Hence, it is hereby rejected.