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Bombay High Court
B.S. Rawat, Assistant Collector vs Bharat Nandlal Kalyani on 1 January, 1800
Equivalent citations: 1990 ECR 302 Bombay, 1990 (45) ELT 231 Bom
Bench: G Guttal


JUDGMENT

1. The Respondent No. 1 Bharat Kalyani is the accused No. 1 in Criminal Case No. 54/CW/1987 pending in the Court of the Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay. Eknath Mane, accused No. 5, a retired Police Officer, resides and carries on business at Singapore in association with the accused No. 1 Dnyandev, accused No. 2, a Custom Officer stationed at Bombay and Shrirang, accused No. 3, are brothers. Asha, the wife of the accused No. 2 and Kusum, the wife of the accused No. 1 are friends. Thus, the accused Nos. 1, 2, 3 and 5 are known to one another. The accused No. 4 Victoria Vaz is a girl friend of the accused No. 1. They have travelled together to foreign countries. The learned Magistrate framed a charge against Bharat Kalyani, accused No. 1 and Victoria Vaz, accused No. 4 under Sections 135(1)(a) and 135(1)(b) r/w Section 135(1)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1962. The prosecution preferred Criminal Revision Application No. 191 of 1988 to the Sessions Court, Greater Bombay against the Order discharging the accused Nos. 2, 3, and 5. The accused No. 1, by the Criminal Revision Application No. 224 of 1988 impugned the Order of framing charge against him. Victoria Vaz filed Criminal Revision Application No. 225 of 1988. The learned Additional Sessional Judge dismissed the Criminal Revision Application filed by the Assistant Collector of Customs and Victoria Vaz thereby confirming the discharge of the accused Nos. 2, 3 and 5 and the Order framing charge against Victoria Vaz. However, he allowed the Criminal Revision Application No. 224 of 1988 by the accused No. 1 Bharat Kalyani and discharged him of the charges framed against him. In this Criminal Revision Application, the Assistant Collector of Customs impugns the legality of the Order of the Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 224 of 1988.

2. The learned Magistrate recorded evidence before the charge. Witnesses were examined, documents were produced. The evidence brings out these facts –

(i) The accused are known to one another. Accused No. 1 and accused No. 5 are associated in business.

(ii) Accused No. 4 is a girl friend of the accused No. 1 They were together in Singapore around the time when the offence is alleged to have been committed.

(iii) On 12th July, 1985, four large containers arrived at Bombay from Singapore. Instead of the declared goods, which 1,200 drums of Acrylamide, the containers contained wrist watches, textile goods, V. C. R’s etc. In one container marked “CTIU 2269022”, the suit-case bearing the name tag and address of Victoria Vaz, the accused No. 4 was found.

(iv) On some of the packages containing textile goods, markings like “B. K.” and “Mane” were found.

(v) While the house of the accused No.3 Shrirang was being searched on 13th July, 1985, the postman delivered and the Investigating Officer received an envelope purported to have been sent from Usha, the daughter of accused No. 5. It was addressed to Shrirang. A list containing description of articles in the four containers which had arrived from Singapore was inside the envelope. (The list is at Exh. P-29). (vi) In the house of the accused No. 1 was found a file which contained a list of articles. The list is at Exh. P-49.

3. The first circumstance, viz. the fact that the accused No. 1 and the other accused are closely known may, if other circumstances support, prove an opportunity to conspire. But, this is a neutral circumstance. By itself or as I will presently show, in conjunction with other circumstances, this association does not imply involvement in any crime. It is an innocent circumstance.

4. “B. K.” are the letters found on some of the packages containing textile goods. “B. K. International” is the name in which the accused No.1 carries on business. “B. K.” are also the first letters of his name. The question is – does this constitute evidence of the fact that “B. K.” means Bharat Kalyani and no one else? The letters “B. K.” may have been a clue to proceed to investigate and suspect but when evidence before the charge has been led, such remote, imaginary and fanciful connection cannot be said “to be a ground” for proceeding to a trial. The prosecution is not in possession of any evidence which explains the possible connection of the letters “B. K.” and therefore, the connection of the baggages with the accused No. 1. No evidence in possession of the prosecution unfolds the mystery as to what “B. K.” means. It remains a mystery and as evidence stands, will always remain a mystery. It is not an incriminating circumstance.

The letters “B. K.” are found on articles C-107(1) which contained the textile goods. What is recorded under the panchnama (Exh. P-4) does not relate to textile goods. Therefore, it stands to reason that letters “B. K.” do not connect the accused No. 1 with the crime.

5. The list of goods sent in the envelope (Exh. P-29) was sent by the daughter of the accused No. 5 to the accused No. 3. This document, even if accepted, cannot connect the accused No. 1 with the articles, for it was addressed to the accused No. 3 and not the accused No. 1.

As already stated, Exh. P-49 is the list of articles found in a file in the house of the accused No. 1. The description of some of the articles tally with the articles contained in the containers. On the other hand, the description of some other categories of articles do not. Exh. P-29 sent by Usha to the accused No. 3 is dated 23rd June, 1985. Exh. P-49 is dated 10th May, 1985. If the list found with the accused No. 1 was the list of articles referred to in Exh. P-29, there should have been reasonable identity of the goods with the description in Exh. P-49. This is not forthcoming. Secondly, Exh. P-29 sent to the accused No. 3 refers to names of individuals like Vashi, Shaka and Mohamed. If the accused No. 1 had anything to do with the goods found in the containers, his name would have found a place in Exh. P-29. It is impossible to conclude even by stretching the probabilities in favour of the prosecution that the accused No. 1 is in any way concerned with this transaction.

The next circumstance is the association of the accused No. 1 with the accused No. 4 and presence of her suit-case in one of the containers. The attempt to connect this fact with the accused No. 1 assumes, without any foundation in evidence, that the accused No. 1 was concerned with the four containers. The prosecution is not entitled to assume anything; every fact, every inference must flow from the evidence. The accused No. 4 had to ask Viju to send the suit-case in the container because she had excess baggage and did not have money. There is no evidence to show that the accused No. 1 knew of this suit- case. The suit-case finds a place in Exh. P-29, the list sent by Usha to the accused No. 3. But significantly, against this suit-case mentioned in the list, the name of “Mane” is written. Presumably, “Mane” means the accused No. 5. This act by the sender of Exh. P-29 excludes the connection of the accused No. 1 with the suit-case. Significantly, the suit-case had the name tag of Victoria Vaz, accused No. 4 which destroys the case against the accused No. 1.

6. Having regard to the totality of the circumstances set out above, the case of the prosecution is based on loosely spread circumstances. Each of the circumstances set out in paragraph 2 above taken individually, does not point to the guilt of the accused No. 1. The association between the families can be an innocent fact. The relation of the accused No. 4 Victoria Vaz with the accused No. 1 is also a neutral circumstance so far as the accused No. 1 is concerned. The evidence points out to the fact that the accused No. 4 Victoria Vaz could have acted independently without the accused No. 1 knowing about her act. The suit-case belongs to the accused No. 4 who gave it to Viju. In the absence of any evidence of the knowledge by the accused No. 1 that the suit-case was kept in the container, the chain which the prosecution seeks to build is snapped. The initials “B. K.” might have been a good starting point to suspect someone, but it does not constitute the evidence of the fact that “B. K.” means Bharat Kalyani. Such conclusion demands some evidence to unfold what the letters “B. K.” means; the prosecution has none. In Exh. P-29, the name “Mane” is shown against the suit-case. Therefore, this fact does not connect the accused No. 1 with the suit-case though it may connect “Mane” with it.

These circumstances do not even raise a reasonable suspicion. The circumstances set out in paragraph 2 above, may be taken to have been prove. On the basis of these circumstances, the prosecution cannot go on for a trial of the offences under the Customs Act. What the prosecution will produce at the trial, is its suspicion, the loose circumstances and conjectures to make up for the absence of legally admissible evidence. In my opinion, the evidence in possession of the prosecution shows that there is nothing to go to a trial so far as the accused No. 1 is concerned.

7. I am called upon to exercise revisional power of this Court. This extraordinary power is exercisable where a subordinate court commits impropriety or a manifest error. The closest scrutiny of all the evidence which the prosecution is in possession has revealed to me that the learned Additional Sessions Judge has acted properly, within the law and taken a view of facts which cannot be said to be erroneous. The analysis of the evidence reveals that the learned Additional Sessions Judge arrived at conclusions which a reasonable mind would arrived at on such evidence. Mr. Patwardhan, learned Counsel for the Petitioner argued, as he always does, all the points with reference to the evidence. But he was handicapped by the loose, weak links which do not form the evidence sufficient to proceed to a trial. I am afraid this is not a case in which I should exercise the revisional powers to reverse the findings which are sound, consistent with evidence, ordinary human conduct and reason.

8. For all these reasons, the Criminal Revision Application No. 155 of 1989 filed by the Assistant Collector of Customs is dismissed. The Order of the learned Additional Sessions Judge in Criminal Revision Application No. 224 of 1988 discharging the accused No. 1 – Bharat Kalyani is confirmed. Rule discharged.


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