Page 181 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] UNION OF INDIA v. KISAN RATAN SINGH 715

- Prosecution witness from raiding party did not know details of panchnama
because he was not party to panchnama, and did not remember mode of
transport used to reach premises - HELD : It could not be believed panchnama
as produced was really prepared - Without corroborative evidence and dehors
panchnama, accused could not be convicted based on confession recorded un-
der Section 108 of Customs Act, 1962. - One more point which comes to my mind is
if the panch witnesses have not been produced, what is the evidence to satisfy that the
said premises is where the respondents were found. I have to also note that an electricity
bill in the name of Jayantilal Pandya has been seized from the said premises by prosecu-
tion. The said Jayantilal Pandya has not been summoned and no effort has also been made
to trace this Jayantilal Pandya. The prosecution should have also, particularly when there
were some other persons present when the raid took place, collected documentary evi-
dence as well as record the statements of the people residing in the adjoining rooms to
find out who this Jayantilal Pandya was. Moreover, it is stated that there is a telephone
connection in the said premises, but in whose name the telephone connection was and
why the prosecution did not make any effort to trace out the subscriber of the telephone, is
also not explained. So therefore, no effort has been made to establish occupancy of the said
premises by the two respondents. There is no evidence to even show how respondents
were in occupation of the said premises, whether they were on leave and licence basis or
they were trespassers or they owned the premises. There is no evidence brought on record
to clarify and factually establish the specific occupancy of room No. 12 by respondents.
[paras 8, 11]
Statement - Reliance on - It has no evidentiary value in absence of in-
dependent corroboration/evidence, especially when there has been retraction -
Section 108 of Customs Act, 1962. [paras 7, 9, 10]
Criminal prosecution - Acquittal by trial Court - It raises double pre-
sumption in favour of accused. [para 14]
Appeal dismissed
CASES CITED
Basalingappa v. Mudibasappa — (2019) 5 SCC 418 — Relied on ...................................................... [Para 13]
Chandrappa v. State of Karnataka — (2007) 4 SCC 415 — Relied on ............................................... [Para 12]
Malki Singh v. Suresh Kumar Himatlal Parmar — 2020 (371) E.L.T. 642 (Bom.) — Relied on ....... [Para 9]
Ramesh Chandra v. State of West Bengal — AIR 1980 SC 793 — Distinguished ........................ [Para 10]
State of Maharashtra v. Harshad Vaherbhai Patel — 2012 (1) Bom. C.R. (Cri) 500 — Relied on ... [Para 9]
REPRESENTED BY : Ms. Anuradha A. Mane, for the Appellant.
S/Shri Rajeev Matkar, Ramesh Parab, Suprinten-
dent, Shanay Shah, Advocate as Amicus Curiae and
Sourabh Paraskar, I.O., for the Respondent.
[Judgment (Oral)]. - At the outset, I have to note that yesterday, i.e., 6th
January, 2020, when the matter was called out, the Counsel for respondents was
not present and therefore, this Court requested Mr. Shanay Shah, an Advocate
practicing in this Court, to be the Amicus Curiae. Mr. Shah agreed and the contri-
bution of Mr. Shah, I have to note, has been immense. Today respondents were
represented by Mr. Matkar.
2. This is a case where the customs authorities are impugning an order
of acquittal dated 17th January, 2001 passed by the Additional Chief Metropoli-
tan Magistrate, 47th Court, Esplanade, Mumbai, acquitting respondents of of-
fence under various provisions of Customs Act, 1962 and Imports and Exports
EXCISE LAW TIMES  1st June 2020  181