JUDGMENT
1. This Revision Application has been filed on behalf of the Customs Department for quashing the order of discharge of the Respondent-accused for the offences under Section 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act, and Section 5 of the Imports and Exports (Control) Act, 1947, passed by the learned Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, in case No. 150/CW of 1984 dated 31-10-1985.
2. A complaint was filed by the Assistant Collector of Customs before the learned Metropolitan Magistrate against the Respondent-accused alleging that he has committed the offences mentioned above in respect of goods which he did not declare and which he had brought while coming to India. The case of the prosecution was that the Respondent arrived at Bombay International Air Port at Sahar, during the night intervening 14th-15th April 1984 by Air India Flight. At the red channel in the Customs enclosure the Respondent declared goods on which duty was payable and his declaration was accepted. Duty was accordingly charged on the said goods. In the meantime, three packages and one roll of carpet were found lying in the baggage area. These were lying with the inscription “Hemant Waingankar, Cricket Control Board, Bombay”. Hemant Waingankar was another passenger who had travelled by the same flight. The Customs Officers located the said Hemant Waingankar in the baggage area itself and enquired with him about the aforesaid packages. He denied having any concern with the said packages and instead, stated that they belonged to the Respondent-accused. The Respondent was then questioned and it is alleged by the prosecution that at that time he claimed the packages. The contents of the packages were examined. They contained VCR, Type-writer, Cordless telephones, Glass show pieces and other articles valued at Rs. 51,510 C.I.F. at the local market rate. According to the prosecution, these goods were seized under a Panchanama in the reasonable belief that they were liable for confiscation under the Customs Act. That was followed by adjudication proceedings during which the Respondent offered to clear the goods on payment of duty. The market value of the goods was determined at Rs. 1,54,530/- in the adjudication proceedings. On the basis, therefore, that the contents of the packages were not declared with a view to evade payment of customs duty and the goods were liable for confiscation under the provisions of the Customs Act, sanction to prosecute the Respondent for offences punishable under Section 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act, and Section 5 of the Imports and Exports (Control) Act, was given by the Collector of Customs, Bombay, and the complaint was filed in the lower Court.
3. In support of the complaint, the prosecution examined V. N. Patil, Preventive Officer, and one C. V. Ephram, before the charge and closed its case. The Respondent appeared through his Lawyer and was heard. After considering the evidence produced before him, the learned Magistrate found that it was not disclosed by the evidence that there was any intention on the part of the Respondent to evade customs duty and import the goods and he was in no way concerned with the goods except that he had accompanied the cricket team as employee of the Sponsors and the goods were in fact consigned to Hemant Waingankar, the Cricket Control Board of India, and further that the contents of the packages were goods which were given as complimentary gifts to the members of the cricket team and thus no offence was offence was disclosed to have been committed by the Respondent, as alleged by the prosecution. Consequently, he passed the order discharging the Respondent.
4. I have gone through the record and proceedings of the case including the evidence of P.W. 1 and P.W. 2 who were examined on behalf of the prosecution before the charge. It appears from the evidence that on the day in question some members of the Indian Cricket Team who had gone to Sharjah to play the Asian Cup had returned to Bombay by Air India Flight. Hemant Waingankar had also arrived at Bombay Air Port along with other members of the team. He had gone with the team to Sharjah as a Liaison Officer on behalf of the Cricket Control Board of India. The said cricket tournament was sponsored by Bukhatir Investment Limited, and the Respondent had accompanied the team as a representative of the said company. On arrival at the Sahar Air-Port, the Respondent went to the Red channel and declared his goods of the value of Rs. 11,850 C.I.F. There is no dispute in respect of those goods. However, at that time the Preventive Officer of the Customs noticed two wooden crates, one cardboard carton and one rolled carpet lying near the examination counter. Name of Hemant Waingankar – Cricket Control Board, Bombay was inscribed on those packages. Preventive Officer Vivek Patil (P.W. 1) made enquiries with Hemant Waingankar about those packages since his name was appearing on them, but he stated that they did not belong to him. He also stated that they belong to the Respondent. Thereupon the Respondent was interrogated and a Panchanama was made.
5. Vivek Patil (P.W. 1) the Preventive Officer stated in his Examination-in-chief that when the Respondent was interrogated, he claimed the ownership of all the packages. However, in the Cross-examination, he stated that the Respondent along with Hemant Waingankar was waiting near the counter No. 43 at the red channel. He explained that the purpose of going to red channel is to make declaration of dutiable goods. The Respondent in fact declared the goods in the suitcase which was with him P.W. 1 however, did not examine Hemant Waingankar in respect of the disputed packages although he had stated that they were belonging to the Respondent. The witness further stated that the packages were lying in a scattered condition from the examination counter to different points within a distance of 10 to 15 feet away. Thereafter he made a very material statement that these goods were yet to be brought for the examination of the customs and that the goods are to be brought to the counter either for examination or acceptance of declaration. He further stated in his cross-examination that when he made enquiry with Hemant Waingankar and told him that the four packages did not belong to him even though they were in his name, he, that is the witness, had confusion in his mind. At that time according to him the Respondent accepted the ownership of those packages but he also told the witness that he was not aware of nor was he knowing the exact contents of the packages. The witness further stated that most of the goods were in the nature of complimentary gifts. He further stated that all the goods, except the cordless telephone, and even the cordless telephone also could be cleared on payment of duty. He (P.W. 1) then made a further very important statement that the goods were detained for further action but they were not seized and that it is also not mentioned in the Panchanama that the goods were seized. He also stated that no action was taken against Hemant Waingankar for disclaiming the goods. His cross-examination thus shows that the four packages were lying in the conveyer area and the Respondent had voluntarily accepted the goods.
6. C. D. Ephram (P.W. 2), Superintendent of Customs, stated in his evidence-in-chief that Hemant Waingankar and other members of the cricket team had disowned the packages but the Respondent had claimed them and they were seized under panchanama. He was the officer who recorded the statement of the Respondent under Section 108 of the Customs Act. In his Cross-examination, he has also stated that two of the packages were lying near the counter and two were lying near the conveyer belt. These were bearing the name of Hemant Waingankar-Cricket Control Board of India as the consignee. According to him two of the packages were brought to the counter while two were to be brought and that the Respondent was waiting at Counter No. 43. After Hemant Waingankar disowned the goods and when enquiry was made with the Respondent, he offered to pay the duty. In the cross-examination this witness had to admit that the goods were not seized but only detained, although he had tried to say in the examination-in-chief that the goods were seized. As mentioned earlier, the evidence of Vivek Patil (P.W. 1) shows that the goods were only detained and were not seized.
7. The Panchanama that was made by Vivek Patil (P.W. 1) mentions as follows :-
“Shri A. B. Jain admitted that the said packages belonged to him. He further added that the carpets and blanket contained in the said packages belonged to him, but that he was not aware of other contents.”
8. Thus, the evidence of the two prosecution witnesses and the recital in the Panchanama noted above reveal that the packages were bearing the name of Hemant Waingankar, not in his individual capacity necessarily, but as being a person connected with the Cricket Control Board of India. It also reveals that the Respondent very much was present at Counter No. 43 and had made no attempt to remove the packages from where they were lying. It also shows that the Respondent had very fairly stated that only the carpet and blankets contained in the packages belonged to him and did not claim the other goods. What the Respondent therefore stated to P.W. 1 to P.W. 2 must be understood to mean that he had only accepted the position that part of the goods contained in the packages viz., carpets and blankets were belonging to him and all that he had done that was to offer to pay duty for the remaining goods so that Hemant Waingankar would be saved from any embarrassment as may be caused to him because the packages were bearing his name as the consignee. Having regard to this nature of evidence, in my opinion, the learned Magistrate was fully justified in holding that the circumstances did not show that there was any intention on the part of the Respondent to evade customs duty and import the goods. The evidence does not show that the Respondent had attempted to remove the goods from the customs area surreptitiously. The cross-examination of Ephram (P.W. 2) shows that two of the packages were still to be brought to the counter. The stage was not therefore reached when the opportunity to make a declaration was over. In the absence therefore of any overt act on the part of the respondent to remove the goods out of the customs area, it is not possible to draw an inference that he had acted with an intention to smuggle the goods by evading to pay the customs duty. The very conduct of the Respondent in offering to pay the duty shows that he had no intention to smuggle the goods out of the Customs area. Simply because he tried to bail out Hemant Waingankar who was a member of the cricket team which had returned victorious from Sharjah, it would be too much to impute an intention to the Respondent to commit the offences for which he was sought to be prosecuted.
9. Section 135(1)(a) requires it to be shown that the accused must have in any way knowingly concerned in any fraudulent evasion or attempted evasion of any duty chargeable. Clause (b) of that section requires it to be shown that the accused was concerned in carrying, removing, etc., the goods which he knows or has reason to believe are liable to confiscation. Under sub-clause (i) of sub-section (1)(b), the offence must be shown to be relating to goods to which Section 123 of the Customs Act applies. The evidence on record as discussed above and as was considered by the trial Court did not disclose presence of any of these elements. Even after going through the complaint and the sanction, I find it difficult to find any material to disclose an offence under Section 5 of the Imports and Exports (Control) Act, 1947. Merely reference to that provision has been made in paragraph 7 of the complaint without even as much placing on record the Import (Control) Order No. 17 of 1955 dated 7-12-1955 and no attempt has been made to show that the goods in question were covered by the said order.
10. Lastly, the evidence of the prosecution witnesses shows that the goods were not seized but only detained. There was therefore no basis for the prosecution to carry any reasonable belief that the goods were smuggled. For that reason also it cannot be said that the offence has been disclosed against the Respondent. Having regard to the evidence on record and the circumstances disclosed by the evidence, I have no hesitation in holding that in the absence of any intention or mens rea on the part of the Respondent to illegally import the goods from the Customs barrier, no offence can be said to have been disclosed against him either under Section 135 of the Customs Act or under any of its sub-clauses or under Section 5 of the Imports and Exports (Control) Act, 1947. I therefore, find that the order of discharge is perfectly justified and calls for no interference.
11. It may additionally be mentioned that the Government of India were pleased to exonerate the Respondent for similar reasons as have been considered above in Customs Revision Application Order No. 305 of 1986 dated 24-7-1986 a copy of which has been produced before me by Mr. Kotwal, the learned Advocate for the Respondent. The reasons given in the said order provided further assurance that the view taken by the learned Magistrate was perfectly justified on the material that was produced before him.
12. In the result, the order of discharge of the Respondent passed by the Court below dated 31-10-1985 is hereby confirmed and the Revision Application is dismissed. Rule accordingly discharged.