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CR.A/517/1989 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 517 of 1989
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
ASST.
COLLECTOR OF CUSTOM - Appellant(s)
Versus
ALLANA
JASUB KER & 6 - Opponent(s)
=========================================================
Appearance
:
MR
BIPIN BHATT, Central Govt. Standing Counsel for the Appellant
NOTICE
SERVED for Opponent(s) : 1,3 - 6.
MR CH VORA for Opponent(s) :
2,
Ms DARSHANA PANDIT APP for Opponent(s) :
7,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
Date
: 21/07/2006 :: 28/09/2006
ORAL
JUDGMENT
This
is an Appeal preferred under Section 378 CrPC by the complainant –
Assistant Collector [Customs], Bhuj against the judgment and
order dated 19th May, 1988 of acquittal of the accused
recorded by the Judicial Magistrate, First Class, Bhuj in Criminal
Case No. 566 of 1986.
The
complainant – Assistant Collector [Customs], Bhuj lodged
complaint against the accused (six in number) for offence
punishable under Section 135 of the Customs Act, 1962 [hereinafter
referred to as, ?Sthe Act??]. According to the complainant,
pursuant to the information received, the Customs Department had, on
12th November, 1984, raided the house in possession of the
accused No.1 and had seized a quantity of ‘Charas’ (a
contraband narcotic drug). On further investigation on 15th
November, 1984 the complainant seized 4 kilograms of charas from the
jungle near village Sukhpar. Pursuant to the said seizure, the
statement as envisaged by Section 108 of the Act of the accused No.1
was recorded on 16th November, 1984. It was alleged that
the seized contraband charas was smuggled into the territories of
India by the accused Nos.3 (Juma Amad, the respondent No.2 herein)
and the accused No.2 Juma Jusab across the border from Pakistan. The
said contraband charas was sold to the accused Nos.5 and 6 through
the accused Nos.1 and 4. The prosecution supported its case by the
statements of the accused (Exhibits 39 to 42 and 82 & 83)
recorded under Section 108 of the Act, the report of the chemical
examination (Exh.43) and the seizure panchnama (Exh.45). The
complainant gave his evidence at Exh.38. The learned Magistrate has
held that the identity of the place from where the contraband charas
was seized was not established. The possession of the accused No.1 of
the house from where the contraband charas was seized was also not
established. As to the chemical examination report (Exh. 43), the
learned Magistrate has held that the said report was not admissible
in evidence under Section 293(4) CrPC. It was not proved by ordinary
mode of proving a document. Further prosecution had failed to
establish connection between the goods seized and the report (Exh.
43). The learned Magistrate has also not believed the aforesaid
statements recorded under Section 108 of the Act. Consequently, the
learned Magistrate has recorded acquittal of the accused persons.
Feeling aggrieved, the complainant has preferred the present Appeal.
Mr.
Bhatt has read out the judgment and has taken me through the evidence
on record. He has submitted that the statements (Exhibits 39 to 42
and 82 & 83) were indeed recorded under Section 108 of the
Act after following due procedure. The learned Magistrate has erred
in not accepting the said statements in evidence and in not relying
upon the same. He has submitted that the accused had admitted the
offence. The said statements being admissible in evidence, the
learned Magistrate ought to have recorded conviction of the accused
persons. In support thereof, he has relied upon the judgment of this
Court in the matter of Mukesh Natvarlal Modi v/s. H.S.Barot and
another [1998(1) GLR 639].
The
Appeal is contested by Mr. Vora. He has submitted that the
complainant had failed to comply with the procedure required for
recording a statement under Section 108 of the Act. The learned
Magistrate has rightly not relied upon the said statements. He has
further submitted that as recorded by the learned Magistrate,
prosecution has failed to establish the seizure of the contraband
goods. The connection between the seized goods and the chemical
report has also not been established. In absence of any corroborative
evidence no conviction could be recorded solely on the basis of the
statements recorded under Section 108 of the Act. He has submitted
that the learned Magistrate had rightly discarded the statements
(Exhibits 39 to 42 and 82 & 83) purportedly recorded under
Section 108 of the Act, he has submitted that the Appeal deserves to
be dismissed and the acquittal requires to be confirmed.
28-09-2006
I
have carefully perused the record. In my opinion the learned
Magistrate has rightly recorded acquittal of the accused persons. The
prosecution has failed to establish that the house from which the
contraband ?SCharas?? was recovered was in possession of the
accused no.1. The Chemical Report [Exh. 43] discloses that the
samples in question were ?SCharas?? a drug prohibited under
the Dangerous Drugs Act, 1930. The complainant, however, failed to
establish that samples were drawn from the contraband ?SCharas??
recovered by him and that such samples were sent for chemical
examination. Thus, the complainant has failed to prove that the
chemical report {Exh. 43} submitted by the Chemical Examiner,
Customs & Central Excise Laboratory, New Kandla was in respect of
the contraband material recovered from the accused persons. The
learned Magistrate is also right in holding that the Chemical
Examiner, Customs & Central Excise Laboratory is not covered by
Section 293 (4) CrPC. The said report was, therefore, not admissible
in evidence as envisaged by Section 293 (1) CrPC. The said report,
therefore, was required to be proved as envisaged by the Evidence
Act. Indisputably, the report Exh.43 has not been proved in
the manner required under the Evidence Act. In other words, the
person making the said report was not examined to prove the said
report. The report [Exh.43], therefore, had no probative
value. Further, the complainant solely relied upon the statements
[Exhs. 39 to 42 and 82 & 83] made by the accused persons
under Section 108 of the Act. It should be noted that at the trial,
the accused persons retracted from the said statements. Assuming that
the said statements were duly recorded under Section 108 of the Act,
when at the trial the accused retracted from the said statements, in
absence of other supporting evidence, the learned Magistrate has
rightly refused to rely upon the said statements and to record
conviction solely on the basis of the said statements. The persons
making the statements Exhs. 84 to 86 & 88 under Section
108 of the Act were not arraigned as accused. Nor were they examined
as witnesses in the trial; nor were they offered for cross
examination by the defence. In the circumstances, the learned
Magistrate has rightly held that the said statements [Exhs. 84 to
86 & 88] had no probative value.
In
absence of any evidence other than the above referred statements
recorded under Section 108 of the Act, the learned Magistrate has
rightly recorded acquittal of the accused.
For
the aforesaid reasons, I uphold the acquittal of the accused persons
and dismiss the present Appeal.
R &
P be returned to the trial Court.
Sd/-
{Ms.
R.M. Doshit, J.}
moin/pt*
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