MANGALDAS VRAJLAL MAJITHIA & 1 v. STATE OF GUJARAT & 1

in Criminal Case No.2932 of 1985 and confirmed by the learned Additional Sessions Judge, Nadiad in Criminal Appeal Nos. 2 of 1991 and 3 of 1991 decided on 15th October, 1993.

3. The petitioners came to be tried for the offences punishable under Section 135 of the Customs Act in Criminal Case No.2932 of 1985 before the learned Chief Judicial Magistrate, Nadiad. As per the prosecution case on the strength of the information, the Customs Officer carried out search of the Truck bearing No.GTP 5104 which was lying outside the premises of Ranjit Road Lines on 6.6.1983. As per the prosecution case on the search being carried out 6 packages having serial numbers 447/1, 447/2, 451/1, 451/2, 453/1 and 461/1 covered under the transport memo 114 to 116 dated 4.6.1983 of M/s. Nilkanth Transport Company, Bombay were found. The packages were containing synthetics fabric, wrist watches, calculators, etc. of the foreign origin valued at Rs.2,19,315/-. As per the prosecution case CR.RA/41019/1993 JUDGMENT during the search of the premises of the original accused No1, there was recovery of the fabrics worth Rs.1,255/- and the Indian currency worth Rs.17,230/- was recovered. The goods were immediately seized under a reasonable belief that the same were smuggled goods. After recording the statements of witnesses, the complaint was lodged in the Court of Chief Judicial Magistrate in the year 1985. The prosecution examined following witnesses: (1) The Complainant D.N.Anero vide Exh.22. (2) PW-2, Gunvantbhai Jashabhai vide Exh.12. (3) PW-3, Prabhudas Khodabhai Parekh vide Exh.18. (4) PW-4, Ghanshyambhai Harishankar Trivedi vide Exh.24. (5) PW-5, Karmsinh Khodabhai vide Exh.40. (6) PW-6, Kalyansing Udesing Vaghela vide Exh.56.

4. The prosecution has also placed heavy reliance on the documentary evidence in order to establish the involvement of the petitioners in the commission of offence. The learned Magistrate on appreciation of the oral deposition and documentary evidence convicted the appellants for the offence punishable under Section 135 of the Customs Act and sentenced the appellants to suffer 2 years S.I. and fine of Rs.5,000/- in default further S.I. of 6 months.

5. The present appellants being aggrieved by the said order preferred criminal appeal bearing No.2 of 1991 as well as 3 of 1991 before the Additional Sessions Judge, Nadiad who after re-appreciating the evidence on record of the case ,confirmed the order passed by the learned Judicial Magistrate and dismissed the CR.RA/41019/1993 JUDGMENT appeals filed by the present petitioners.

6. Thus appellants, being aggrieved by the two concurrent findings recorded by the Courts below, have preferred the present revision applications under Section 397 read with 401 of Criminal Procedure Code.

7. The learned advocates for the petitioners submitted that the order of conviction and sentence passed by the learned Chief Judicial Magistrate and confirmed by the learned Appellate Judge are absolutely illegal and unwarranted on the facts and circumstances of the case. Even though, there was no evidence that the goods which were seized were smuggled goods and of a foreign origin, the Courts below erroneously held that it was a smuggled goods and having foreign origin. The Courts below have not appreciated the oral deposition as well as documentary evidence adduced by the prosecution in its proper perspective while convicting the petitioners for the offence punishable under Section 135 of the Customs Act. The Courts below have also committed egregious error in not considering the confessional statement of the co-accused while convicting the present petitioners. The learned advocates further submitted that even though the muddamal in question is not produced before the Courts below, the Courts below committed the error in holding that muddamal articles were of a foreign origin while convicting the present petitioners for the offence punishable under Section 135 of the Customs Act. CR.RA/41019/1993 JUDGMENT

8. Thus, the learned advocates on behalf of the petitioners submitted that as the findings recorded by the Courts below is not based on evidence on record of the case and given on extraneous condition, the order passed by the learned Judicial Magistrate Nadiad dated 23.1.1991 in Criminal Case No.2932 of 1985 and confirmed by the learned Additional Sessions Judge, Nadiad in Criminal Appeal Nos. 2 of 1991 and 3 of 1991 decided on 15th October, requires to be quashed and set aside and the petitioners be exonerated forthwith for the offence punishable under Section 135 of the Customs Act.

9. The learned advocate representing the respondents vehemently submitted that the power of this Court under Section 397 read with 401 is very narrow and limited. The Courts below have taken into consideration the oral deposition as well as documentary evidence while convicting the petitioners for the offence punishable under Section 135 of the Customs Act. As the prosecution has established the involvement of the petitioners in the commission of offence under Section 135 of the Customs Act by adducing cogent and convincing evidence before the Courts below, no interference is called for in the revision applications preferred by the petitioners and the same deserves to be dismissed.

10.The learned APP representing the State adopted the submissions canvassed by learned advocate Mr.N.K.Manjmudar and submitted that as the scope of CR.RA/41019/1993 JUDGMENT interference under Section 397 read with 401 of Criminal Procedure Code is limited, no interference is called for in the revision applications preferred by the petitioners and the revision be dismissed.

11. I have heard learned advocate for the petitioners, Shri A.D.Shah for Shri S.A.Shah and Shri T.S.Nanavati and Shri N.K.Majmudar for the respondent No.2 and learned APP, Shri P.D.Bhate as well as Shri A.J.Desai for the State.

12.This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reference to broad and reasonable probabilities of the case.

13.On re-appreciating and reevaluating the oral deposition and documentary evidence adduced by the prosecution in the present case, it becomes clear that there are many lacuna or loopholes in the evidence produced by the prosecution. As there are many chinks in the armor of the prosecution case, the benefit of same, in my view, is required to be given to the petitioners.

14. On perusal of the order passed by the Courts below and the reasons assigned by the learned Judge, it becomes clear that no one was examined from Nilkanth Transport Company in order to establish as to who was the person who handed over the muddamal at Mumbai. Even if, considering the deposition adduced by the panch-witness Prabhudas Khodabhai Parekh vide CR.RA/41019/1993 JUDGMENT Exh.18 then he can be said to be highly interested witness and therefore, his deposition requires to be considered for a pinch of salt. It is pertinent to note that the Courts below have mainly place heavy reliance on the confessional statement of the co- accused with a view to prove the guilt against the present petitioners, but it would be hazardous to place reliance on the confessional statement of the co-accused while convicting the petitioners for the offence punishable under Section 135 of the Customs Act. I have also considered the ratio laid down in the case of Superintendent of Customs V/s. Bhanabhai Khalpabhai Patel and another reported in AIR 1992 SC 1583 as well as in the case of Abdul Rashid V/s. State of Bihar reported in AIR 2001 SC 2422. Thus, considering the ratio laid down in the aforesaid judgment, the conviction of the petitioners cannot be based solely on the confessional statement of the co-accused. It is incumbent upon the prosecution, in my view, to adduce cogent evidence and adequate material so as to indicate inextricable involvement of the petitioners in the commission of offence. Even on perusal of the judgments rendered by Courts below, it becomes clear that muddamal articles in question was also not produced before the Court in order to complete the entire link connecting the petitioners with the commission of offence. In view of the aforesaid facts and circumstances, the order passed by the learned Chief Judicial Magistrate and confirmed in appeal by learned Additional Sessions Judge convicting the petitioners is unsustainable and it requires to be quashed and set aside for the reasons stated herein above. CR.RA/41019/1993 JUDGMENT

15.This Court has aware of the fact that the revision application is preferred under Section 397 read with 401 of the Criminal Procedure Code and the power and jurisdiction of this Court is very narrow and limited. However, if the Courts below overlooks the evidence on record of the case or place reliance on the material which was not placed before it while convicting the petitioners then this Court can definitely interfere while exercising the revisional power under Sections 397 read with 401. Considering the aforesaid aspects of the matter, I am of the view that the order passed by the Chief Judicial Magistrate, Nadiad dated 23.1.1991 in Criminal Case No.2932 of 1985 and confirmed by the learned Additional Sessions Judge, Nadiad in Criminal Appeal Nos. 2 of 1991 and 3 of 1991 decided on 15th October, 1993 deserves to be quashed and set aside.

16.For the foregoing reasons, both these revision applications are allowed. The order passed by learned Chief Judicial Magistrate, Nadiad dated

23.1.1991 in Criminal Case No.2932 of 1985 and confirmed by the learned Additional Sessions Judge, Nadiad in Criminal Appeal Nos. 2 of 1991 and 3 of 1991 decided on 15th October, 1993 are hereby quashed and set aside and the petitioners are acquitted forthwith for the offence punishable under Section 135 of Customs Act. Rule is made absolute. ashish// (H.B.ANTANI, J.) CR.RA/41019/1993 JUDGMENT