JUDGMENT
M.F. Saldanha, J.
1. This is an appeal filed by the Assistant Collector of Customs, Bombay, and is directed against the Judgment and Order of the learned Addl Chief Metropolitan Magistrate, Esplanade, Bombay, dated 27th May, 1991. The learned Magistrate had acquitted the Respondents before this Court, i.e. the Original Accused, who stood charged with having committed offences punishable under Section 120-D of the Indian Penal Code read with Section 13(1) of the Foreign Exchange Regulation Act, Imports Control Order 17/55 and Section 11 of the Customs Act, under Sections 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act. 1962, and under Section 5 of the Imports and Exports (Control) Act.
2. A few facts which are relevant for the purposes of this appeal are set out below:
According to the Prosecution, a ship by name M.V. MANASLU which was on voyage from Karachi to Bombay, relayed a message from the Captain to the agents at Bombay who, in turn, informed the Customs Authorities that a certain quantity of gold had been detected on that ship. In response to this message, a party consisting of the Customs Officers boarded the ship which was loding for the Bombay docks. The said ship had earlier arrived from Karachi. There is some dispute with regard to the exact sequence of events but what emerges from the record is that the Captain reiterated his earlier message by stating that certain cloth jacket bolts containing gold bars were found concealed in the tins of paint situated in the store-room of the ship. It was brought to the notice of the officers that in the course of the investigation conducted by the Captain and other crew members on board the ship when the gold was discovered, that the present three Accused voluntarily came forward and admitted to the Captain and other Officers that the gold had been concealed by them. These persons are alleged to have further suited that one person by name Karim is alleged to have asked these persons to carry the gold to Bombay at which place a person by name Baba was to come on board the ship and take charge of the gold. The gold was seized and investigation into the case commenced. Subsequently, the three Accused were arrested and chargesheeted before the Court and placed on trial on the aforesaid charges.
3. It needs to be mentioned here, that to some extent, a lot of reliable and cogent evidence which consisted of the statements of the Captain, and also the other crew members was not available to the prosecution at the time of trial. The learned Counsel representing the Accused before the trial Court has made capital of this fact and the learned Magistrate has also taken a very serious view of the non-product inn of the material witnesses and has held that this is a factor against the Prosecution. The learned Magistrate, in the course of his Judgment, has come to the conclusion that the Prosecution was unable to prove the charges to the extent which the law require and consequently the benefit of doubt had to be given to the Accused. It is against the Order of acquittal that the Customs Authorities have filed an appeal before this Court. It is necessary to record, that the gold involved in this case is valued at approximately Rs. 2.66 crores and that, to my mind, the Customs Authorities were more than fully justified in challenging the Order of acquittal. It would be advisable for the trial Court to take very strict notice of the fact that the investigating agencies are often handicapped and suffer from several limitations. Ipso facto, the benefit of any such minor or procedural shortcomings is not to result in an acquittal if the material produced, regardless of better evidence contributing to an undoubtedly better prosecution, can still sustain a conviction. The equation can never be that in serious economic offences, drugs prosecutions, and terrorist offences every little act of technical or procedural infirmities is to confer maximum benefit to the Accused.
4. The Accused, in this case, are Philipino Nationals and they were working as crew members on the said ship. Having regard to the value of the contraband, all the Accused were also detained under COFEPOSA. The record indicates that they have been in custody for more than 26 months. On completion of the trial, the Accused were released on bail and they have legitimately made a grievance of the fact that after this period of time, they ought not to have been detained in this country much longer because of the pendency of this appeal. This grievance is perfectly legitimate considering all that the Accused have undergone, and at the request of the respective parties, I have taken up the appeal for hearing immediately after calling for the record from the lower Court. The paper book and certified copy of the Judgment are dispensed with and I have gone through the original record and have heard the respective Counsel on both the sides.
5. Mr. Gupte, learned Counsel representing the Department, has made a strong grievance of the fact that the trial Court has proceeded on the assumption that the evidence adduced before it was wholly unsatisfactory to bring home the charge. According to Mr. Gupte, the Customs Authorities have done their very best to trace out the Captain and other crew members and to produce them before the Court as witnesses. There is considerable support to this submission from the fact that the prosecution examined a local agent of the ship who himself has admitted that he was not in a position to assist the Court by indicating where exactly the ship was. According to Mr. Gupte, under these circumstances, where the Customs Authorities are helpless in producing the witnesses, the adverse inference drawn by the learned Magistrate was wholly incorrect. One needs to bear in mind the fact that the Accused, in this case, were in custody, in so far as they were placed under detention, and in any event the record indicates that the bail offered to them was of so high a quantum that they were unable to avail of it. Under these circumstances, the Accused were pressing for an early disposal of the case and the learned trial Magistrate was perhaps justified in not having waited beyond a reasonable time. I do not however agree with the view of the learned Magistrate that in these special circumstances an adverse inference should follow and that a finding be recorded that the Customs Authorities should suffer because of non-availability of the witnesses. Admittedly, this particular lot of witnesses were crew members on the foreign ship. They are foreign nationals and the law does not permit the authorities in this country to detain the witnesses indefinitely or for any length of time merely because they were required for the trial. If the witnesses have gone away and if after making reasonable efforts, the Customs Authorities were unable to produce the witnesses, no adverse inference, to my mind, would be justifiable. The question still remains as to whether in the absence of these witnesses, the charge in question has been established or not.
6. Mr. Gupte frankly admitted that not only were the Officers of the ship not available, but in spite of diligent efforts being made, the panchas were also not available. This last aspect of the matter has come under serious fire at the hands of Mr. Hirani, learned Counsel representing the Respondents, Mr. Hirani has submitted that it is too much to believe that the Customs Authorities could not trace out and could not produce the panchas before the Court. A perusal of the record indicates that a statement was made to the trial Court that the panchas are not available. This, according to him, was hardly a satisfactory state of affairs because the panchas are considered to be independent persons and are important witnesses in matters of proving the panchnamas and to this extent a high degree of care was expected from the Officers who were entrusted with this case. It it difficult to believe, says Mr. Hirani, that the panchas could have vanished, or possibly the panchas have changed the place of residence, but that was no ground for not examining these particular and important witnesses. Mr. Gupte has more than met this charge by pointing out that unfortunately, the gold having been nabbed, the Bombay group could not be apprehended. However, the disappearance of the panchas under these circumstances could plausibly be linked to the local counterparts. Mr. Gupte has sought to place reliance on a case reported in 1976 Cri. L.J. page 1707 wherein the Supreme Court, while considering the situation where three panchas who were cited as witnesses, were not said to be available and the Prosecution had relied on the sole evidence of the Customs Officer, upheld the position in law that in a given case it is permissible for the Court to even base a conviction on other reliable evidence even if the panchas are not available. Unless this principle is applied the Courts would be driven to a situation whereby prosecutions would fail when panchas disappear or more likely are made to disappear.
7. Undoubtedly, these two sets of witnesses have not been produced and this was possibly the main reason which impelled the learned trial Magistrate to acquit the Accused. Mr. Gupte has, however, relied on the record as it exists and it is his contention that this record is sufficient for the purposes of conviction. The principal witness examined on behalf of the Prosecution is the Officer Mr. T.V. Shankar. He has given detailed evidence in this case which substantially recounts everything that has been indicated by me above. What is material is the fact that this Officer very clearly states that the Accused persons admitted before him that the gold in question had been handed over to them for the purposes of delivery at Bombay. This Officer has been cross-examined but nothing has been brought on record from which this Court can come to a conclusion that the officer was interested in falsely implicating those three accused from amongst the crew members of that ship. If the Customs Officers were interested in false implication, it only stands to reason that they would have forthwith arrested the Captain on the ground that the gold had ultimately been produced by him and on the ground that he was in charge of the said vessel from where the gold was recovered. The fact that this was not done, very clearly indicates the veracity of the evidence given by the Officer and the fact that he has truthfully confined the notion only to the persons who were in fact responsible. I do not see any valid or cogent reason to reject the evidence of this Officer which, to my mind, is fully and completely corroborated by the fact that a substantial quantity of gold was recovered on that day under a panchnama.
8. Mr. Hirani, learned Counsel appearing on behalf of the Respondents has seriously assailed the value of the statements of the Accused recorded under Section 108 of the Customs Act. The challenge proceeds on a two fold fooling: the first is to the effect that, according to him, the statements have been retracted immediately when the Accused have been produced before the trial Court. Such retractions have become the order of the day and are found on the file of each and every customs case. Mere, retraction alone is not going to affect the evidenciary value of the statements recorded under Section 108 unless it can be demonstrated that the statement is otherwise assailable. Mr. Hirani’s second ground of attack is that, according to him, the Accused were produced before the Court on 7.2.1989 which was after three days of the raid and Mr. Hirani contends that the Accused were being mercilessly assaulted and tortured by the Customs Officers and that, in fact, they had made applications to the learned Magistrate for being sent for medical examination and he further contends that the injuries were disclosed on their persons. I do not find any reference to these facts in the judgment of the trial Court, nor do I find any support to the statements in the record before me. There is also no evidence to indicate that the Accused were, in fact, placed under arrest at the earliest point of lime and not produced before the trial Court within the prescribed period of 24 hours. Mr. Gupte, the learned Counsel for the Department states that in cases of the present type where a seizure takes place, it is essential for the department to investigate the case at the earliest point of lime. He further states that the recording of the statements under Section 108 takes some time and that it is only after this if there is sufficient material before the investigating officer that Accused is formally placed under arrest and that in this case, according to him, the Accused were, in fact, produced before the Court within the prescribed period of 24 hours after their arrest. Similar grievances are made in several prosecutions and it would, therefore, be a healthy practice for the department to ensure that irrespective of other action which they are required to undertaken, that the Accused who are apprehended by them are placed under arrest if the department so requires at the earliest point of time and produced before the Court within the prescribed period. If the Accused are detained for so-called interrogation or investigation, the department is coming dangerously close to the allegation from the Accused, as has happened in the present case, that they were in fact placed under arrest and that the department has only shown a wrong date and time of their arrest. From this point of view, therefore, it is desirable that no occasion for complaint be afforded.
9. As far as the facts of the present case are concerned, I have gone through the original statements recorded under Section 108 of the Customs Act. All the three statements contain unequivocal admissions on similar lines which briefly state that the three Accused were carriers of contraband, that it was handed over to them, concealed in the tins of paint, and that they admitted to the ship’s authorities about this fact and furthermore that the contraband was to be handed over to a particular person at Bombay. What is more, the statements do also indicate that the Accused were to be paid a sum of 3000/- U.S. Dollars for carrying the gold in question and that they had in fact done this on an earlier occasion. I see no reason why this statement should be assailed merely because the Accused are advised to file a retraction before the trial Court. In the cross-examination during the trial, nothing worthwhile has come on record on the basis of which the Court should for any reason either doubt the correctness of the contents of the statements, recorded under Section 108 of the Customs Act. The statements are fully corroborated by the admissions before Shankar and by the seizure and do not suffer from any infirmity. In this view of the matter, to my mind, the trial Court was not justified in having rejected these statements and the finding to the effect that the statements were exculpatory, is wholly incorrect.
10. The record of the present case indicates several other supportive pieces of evidence on the basis of which this Court would be justified in coming to the conclusion that the ingredients of the charge have, in fact, been made out. On the basis of the material produced before the trial Court, it is fully established that the contraband in question was handed over to the present three Accused. It is also established that they have admitted to this and it is also established that the destination of the contraband was Bombay. Under these circumstances, the academic issue gone into by the learned Magistrate with regard to the presumption under the Customs Act hardly requires to be examined. The material before the Court does indicate that the Accused were concerned in an act of carrying and dealing with, as also concealing the gold bars during their voyage in the paint tins and furthermore they were to hand aver this contraband to a person who would collect them at Bombay. In this view of the matter, the Order of acquittal passed by the learned Magistrate is liable to be set aside and the Accused are liable to be convicted for the offences under which they Mood charged.
11. The record of this case; however, indicates that the three Accused who were young persons, were being used as intermedianes between certain other persons dealing with contraband and that at the highest these three Accused were acting as carriers. Mr. Hirani submitted that carriers should be shown mercy and that they should be distinguished from persons whom he described as “hardened smugglers”. This categorisation is quite ridiculous because all persons involved in such operations require to be dealt with the same degree of firmness. To my mind, the tendency to regard carriers as “small fry” and treat them with utmost sympathy is an approach which is downright wrong. Persons who undertake such anti-social and anti-national activity for huge gains should be ready for heavy punishments. Those who prefer to short-circuit their way to easy riches through these channels, instead of the traditional honest hard work, forfeit their right to argue that they are the smallest link in the chain of smuggling activity. In fact, they are the most vital and important channel, without whose services smuggling would be impossible. Consequently, a lenient view cannot be taken particularly in cases where the contraband is of a very high value. A requisite sentence under these circumstances, to my mind, would be a sentence of two years rigorous imprisonment. I am aware of the fact that the Accused have already undergone custody for a period of approximately 26 months and that they are foreign nationals and furthermore by virtue of what has happened in this case, they have undergone a lot of suffering. These are the circumstances which would justify my not imposing a heavier sentence on them particularly in view of the fact as indicated earlier, that the Accused are not the main beneficiaries but were acting as carriers for certain sums of money.
12. For these reasons, the appeal is allowed. The Judgment and Order of the learned Magistrate dated 27.5.1991 is set aside. The Accused are convicted for the offences with which they stood charged and they are sentenced to suffer two years RJ. and to pay a fine of Rs. 1000/-
each…R. I. for six months. No separate sentences or fines have been prescribed in respect of each of the counts or charges. The Accused are granted one week’s time to pay the fine to the trial Court. It is also clarified that the Accused are not required any longer by the authorities. They have already undergone more than two years in custody and therefore immediately on payment of fines imposed on them to the trial Court, all the travel documents as also their personal belonging if any be returned to the Accused forthwith.