FA manupatra® MANU/MH/0307/1990 [Equivatent citation: 1991(34)ECR243(Bombey), 1991(52)€LT178(B0m.) IN THE HIGH COURT OF BOMBAY Criminal Revision Application No. 319/82 Decided On: 10.08.1990 Appellants: Assistant Collector of Customs Vs. Respondent: Kunhi Korath Balan Hon'ble Judges/Coram: K.N. Patil, J. Counsels: For Appellant/Petitioner/Plaintiff: Shri M.K. Patwardhan, Adv. For Respondents/Defendant: Shri M.S. Ramamurthy, Adv. and Shri R.F. Lambey, Additional Public Prosecutor JUDGMENT K.N. Patil, J. 1. Respondent No. 1 Kunhi Korath Balan was tried along with another accused Harilal B. Khalasi on charges under Sections 135(1)(a)(ii), 135(1)(b)(ii) 136(1) of the Customs Act and also under Sec. 5 of the Imports & Exports Control Act, 1947, ona complaint filed by the Asstt. Collr. of Customs, Bombay, being Criminal Case No. 387/CW of 1978 by the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. The learned Magistrate found Respondent No. 1 guilty and sentenced him to suffer rigorous imprisonment for 18 months and to pay fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months each under Sections 135(1)(a)(ii), 135(1)(b)(ii) and 136(1) of the Customs Act and also sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months under S. 5 of Import & Export Control Act and directed that the substantive sentences to run concurrently, 2. Being aggrieved by the judgment and order of conviction and sentence passed by the Additional Chief Metropolitan Magistrate, Respondent No. 1 preferred an appeal being Criminal Appeal No. 43 of 1980. The learned Additional Sessions Judge, Greater Bombay, by his judgment and order dated 22nd January, 1982 allowed the appeal, set aside the conviction and sentence and acquitted Respondent No. 1 of the various offences with which he was charged and convicted by the trial Court. This appeal is directed against the acquittal of Respondent No. 1. 3. The prosecution case, in brief, is as follows :- Respondent No. 1 was working as Customs Officer. on 17th October, 1977 the ship M. V. Akbar which had arrived from Persian Gulf port was berthed at 18 Indira Dock. In the evening Respondent No. 1 went to the ship in plain clothes. Respondent No. 1 came down from the ship and was proceeding towards Mole station and was carrying an Air India Bag. Bapu Laxman (PW 1), a Customs Jamadar, accosted Respondent No. 1 on suspicion and stoppedFA manupatra® him at some distance. On enquiry Respondent No. 1 told the Jamadar that he was carrying cassette tapes, some films and a tin of toffee in the hand bag. Respondent No. 1 refused to open the bag and tried to escape. Bapu Laxman brought Respondent No. 1 upto the gangway and sent for Mirji (PW 3), Superintendent of Customs. Within a short time Mirji came. The Jamadar told him that Respondent No. 1 was carrying gold. After showing some hesitation and praying for mercy Respondent No. 1 admitted that he had gold with him. Immediately, Mirji went to 'B' Division Office and informed the Assistant Collector, Shri Alimchandani. Respondent No. 1 was taken to the office of 'B’ Division and in presence of two panaches person of the Respondent No. 1 was searched. A cloth pouch was tied around the waist underneath the cloth which contained six bars of gold of 10 tolas each bearing foreign markings. Besides four recorded cassette tapes, one film and a tin of toffee of foreign origin were found in the bag. Two diaries and identity care were found on his person. These articles were seized under the panchnama Exhibit A at about 9.30 p.m. on the same day. Thereafter Respondent No. 1 was interrogated and his statement under Section 108 of the Customs Act was recorded by Mirji, Superintendent of Customs. The Respondent No. 1 in his statement confessed his involvement in smuggling of the gold. Respondent No. 1 disclosed that Hiralal Khalasi (original accused No. 2) had requested him to smuggle the gold and had promised to pay him money. Respondent No. 1 led the Customs Officers to the cabin of Accused No. 2 on the ship which was found locked and on opening he was found inside. His statement was also recorded. On 12-6-79 sample of the gold was taken under the panchnama and it was sent for analysis. The gold that was seized was in the shape of gold biscuits. The Chemical Analyser in his report dated 26-6-1979 reported that the samples sent to him were of gold having purity of 99.9 percent. After obtaining necessary sanction to prosecute Respondent No. 1 and the other accused, the complaint was filed and both of them were tried on the charges mentioned above. 4. When examined under Section 313 of the Code of Criminal Procedure, the Respondent No. 1 admitted that he had gone to the ship and while he was returning he was accosted by the Customs Jamadar, Bapu Laxman and at that time he was carrying Air India bag with him. He stated that he had visited the ship in search of one Ibrahim who was suspected to indulge in smuggling of opium. He denied that his person was searched and six gold biscuits were recovered from him and the other articles were found in his hand bag. He denied that the panchnama was made. According to Respondent No. 1 Bapu Laxman and Shri Alimchandani were not on good terms with him. At the instance of Alimchandani he was falsely involved in the case. He contended that his statement under Section 108 of the Customs Act was obtained under threat and coercion and it was not a voluntary statement. He retracted all the confessional statement at Exhibits C, C1, C8 and C3 recorded under the Customs Act. In addition to the oral statements Respondent No. 1 filed a written statement wherein the contended that the search was not proved and no list of articles was prepared as required by law. He also made a grievance that the prosecution did not examine panch witnesses to prove seizure of gold bars and other articles from his possession. The prosecution also did not examine the Investigating Officer, Alimchandani who was on inimical terms with the Respondent No, 1, 5. Relying on the evidence of the Customs Officer and the statements of Respondent No. 1 recorded by the customs authorities, the learned Magistrate held the Respondent No. 1 guilty for the various offences and sentenced him as stated above. The learned Magistrate held that the case was not proved against original accusedFA manupatra® No, 2. 6. In the appeal the learned Additional Sessions Judge held that the search was illegal as one of the panchas had left after writing of the first page of the panchnama and that the panchnama could not be regarded as a list of the articles seized, in the course of search within the meaning of sub-section (4) of Section 102. The learned Judge did not accept the explanation that the panch witnesses could not be examined as they were not traceable. The learned Judge has recorded the finding as under : "In the present case the law by virtue of Section 102(4) of the Customs Act required the search to be made in the presence of panchas and what the learned Magistrate has done is that he has based the conviction on the uncorroborated testimony of the Customs Officer, It is true that the Customs Officers cannot be equated with police officers, but having regard to the spirit behind sub-section 4 and object thereof I have no hesitation in holding that in the absence of independent corroboration it would not be safe to act upon the testimony of the Customs Officer who carried the search and whose the principal evidence to establish that the accused was found carrying contraband articles..... As said earlier had there been satisfactory explanation given for failure to examine the panchas there would have been some room to regard the search as deposed to by the officer alone to have been legally established. That not being the position here I feel fortified on the strength of the above mentioned authorities in my conclusion noted earlier that the search in this case must be held illegal. Consequently it must be held that the evidence was not sufficient to prove that the contraband of gold was seized from the appellant, in the manner alleged and it would not be sufficient to hold that the offences alleged against him have been proved.” The learned Judge also held that the identity of the sample was not established as sample was not obtained in the presence of the panchas who were present at the time of alleged search and seizure of the gold and other articles from possession of the Respondent No. 1. The learned Judge also found that the conviction under Section 136(1) of the Customs Act was not legal and proper in view of the acquittal of original accused No. 2. The Learned Judge has not considered and discussed the other piece of evidence which was relied upon by the trial Court to convict the Respondent No. 1 i.e, the confessional statements of the Respondent No. 1 recorded under Section 108, as, in his view, it was not necessary because the prosecution failed to prove that the contraband gold was seized From Respondent No. 1. 7. The learned Judge concluded that the conviction of Respondent No. 1 could not be sustained for want of sufficient reliable legal evidence and acquitted him. 8 . The prosecution examined in all six Customs Officers and tendered two panchnamas, Exhibits A and 1 confessional statements of the respondent No. 1 at Exhibits C, C1, C2 and C3 and the Test report, Exhibit C4. 9. The first witness is Bapu Laxman Lamkhade, Customs, Jamadar. On the day of the incident he was on duty inside the Indira Dock where the ship M. V. Akbar had been berthed. At about 6.00 p.m. he accosted a police constable on suspicion that he was carrying some contraband on his person and informed the Superintendent who came there and took him to the 'B' division office. Thereafter he returned back to the dock. He noticed Respondent. No. 1 on the dock. Respondent No. 1 came down and had conversation with the Customs Officer who was on guard duty at the gangway andFA manupatra® suspicion and therefore, Jamadar stopped him at some distance and enquired from him about the contents of the hand bag. Respondent No. 1 said that there were four cassettes of tape recorder, some films and tin of toffy. When Bapu tried to hold the bag, Respondent No. 1 tried to snatch it and attempted to run away. Bapu caught the Respondent No. 1 and brought him upto gangway and informed the Superintendent of Customs Mr. Mirji (PW 2) who was on the board of the vessel. Mirji came and made inquiries with Respondent No. 1 Mirji went to call the Assistant Collector Mr. Alimchandani. Respondent No. 1 was taken to the customs office for further interrogation. When examined under Section 313 of the Code of Criminal Procedure, Respondent No. 1 admitted that he was accosted by the Jamadar Bapu Laxman and had questioned him about the contents of the bag. He admitted that Bapu called some officers and he was taken to the Customs Office. He contended that Bapu was not on good terms with him but did not elaborate the statement further. Bapu was cross-examined by the Respondent No. 1 before the charge and was framed. Bapu was not available for further cross-examination as he died, The evidence of Bapu is admissible because the Respondent No. 1 had exercised his right of cross- examination. It may be pointed out that no cross examination has directed to show that Respondent No. 1 had strained relations with the Jamadar Bapu. However, it is an admitted position that Respondent No. 1 was accosted by Bapu and he was taken to the customs office. It is not the defence of Respondent No. 1 that Bapu had foisted or planted the contraband articles including six gold biscuits on him. 10. The next witness is - Prabhakar s/o. Gopal Mahabaleshwarkar (PW 2) Preventive Officer of the Customs. His evidence shows that on the day of the incident at about 8.00 p.m. or 8.15 p.m. while he was in the 'B' division office, the intelligent officer Mr. Sharma, Customs Officer Mr. Bhide, Superintendent Mirji and Customs Jamadar Bapu brought Respondent No. 1 Ballan in the office. Respondent No. 1 was carrying Air India hand bag. When questioned by Mirji, Respondent No. 1 admitted that he was carrying gold on his person. The panchas were called. The hand bag was searched. It contained four cassettes, one film and one toffee tin of foreign origin and two diaries. Two more diaries were found in the pocket of the panch of Respondent No. 1. On search of the person of Respondent No. 1, one cloth pouch was found tied with the string around the waist. It contained six pieces of gold, each one was of 10 tolas with foreign markings. The pieces were in biscuit shape. The gold was valued at Rs. 45,334.00 at the market rate. The gold and other articles were seized under panchnama, Exhibit A. In the cross-examination he stated that the panchas were called at 8.30 p.m. and then corrected himself saying that they were called at 9.30 p.m. He also stated that the writing of the panchnama commenced at about 9.00 p.m. but after seeing the panchanam, Exhibit A, he deposed that the panchas were called at 9.30 p.m. and the panchnama was concluded at 11.15 p.m. over-emphasis cannot be attached to such minor discrepancies. It was not suggested that he had any motive to implicate the Respondent No. 1 in such a serious case. 11. PW. 3 B. G. Mirji, Superintendent of Customs, is an important witness because he recorded the statement of Respondent No. 1 under Section 108 of the Customs Act on the same night. He deposed that at about 8.00 p.m. while he was on the deck he was informed that Bapu Jamadar had apprehended a Customs Officer on suspicion that he was having contraband articles in his possession. Mirji went to the gangway and questioned Respondent No, 1, After showing some hesitation and praying for mercy, Respondent No. 1 confessed that he had gold with him. Respondent No. 1 was immediately taken to the Customs Office. The Assistant Collector Mr, Alimchandani was informed and in the presence of panchas, the cassettes films etc; which were in the hand bag of Respondent No. 1 were seized. Mirji had also deposed that the person of Respondent No. 1 was also searched. A cloth pouch was tied around theFA manupatra® marking were recovered and seized. The evidence of Kulkarni (PW 4) Superintendent of Customs is much more same as that of his colleague, Mr. Mirji (PW 3). Both the witnesses have consistently stated that after the Respondent No. 1 was brought to the office, he was questioned and he confessed that he was having gold and other articles and those articles were seized under panchnama. There is nothing in the evidence of Kulkarni to show that he was in any manner ill-disposed against Respondent No. 1. Kulkarni recorded three statements of Respondents No. 1 which are at Exhibit C1 dt 31-10-1977, Exhibit C2 dated 1-11-1977 and Exhibit C3 dated 4- 11-1977. 12. The remaining two witnesses, Harishchandra Rathod (PW 5) Customs Officer and Venkatashwar Sharma (PW 6) Preventive Customs Officer are not material. Rathod did not support the prosecution. He resiled from his earlier statement. Sharma scribed the confessional statement of Respondent No. 1, Exhibit C, soon after the gold was recovered from the possession of Respondent No. 1. 13. Alimchandani, Assistant Collector, investigated the case, He was not examined, In the statement under Section 313 of the Code of Criminal Procedure, Respondent No. 1 stated that in the year 1975 there was an incident between him and Alimchandani and at that time Alimchandani abused and threatened him to see that his services are terminated. According to the accused, he was involved at the instance of Alimchandani. Both the courts below have rejected the defence contention that the customs officers involved the Respondent No. 1 at the instance of Alimchandani. In this context the learned Sessions Judge has stated :- "I am not inclined to hold that all the officers had given evidence at the instance Alimchandani or that Alimchandani has falsely implicated the appellant in this incident, particularly as the appellant was a fellow officer." Non-examination of Alimchandani does not affect the prosecution case. 14. Thus there is consistent, cogent and convincing evidence of the Customs Officer (PW 2), (PW 3) and (PW 4) that the gold biscuits and other articles were found in the possession of Respondent No, 1, It is highly improbable that these officers would falsely involve Respondent No. 1 who was also a customs officer. They are competent witnesses and their evidence cannot be considered as that of the interested witnesses. There was no reason for all of them to oblige. Alimchandani to give evidence against Respondent No. 1, who was their fellow officer. Having considered their evidence. I do not find that it suffers from any serious infirmities. The learned Sessions Judge has not disbelieved their evidence but emphasised the need of independent corroboration to their evidence for holding that the contraband articles were recovered from the possession of Respondent No. 1. I find that the evidence of P.W. 1 Bapu Lamkhade, P.W. 2 Prabhakar Mahabaleshwarkar and Sadashiv Kulkarni (PW 4) is creditworthy and acceptable. Their evidence by itself is sufficient to prove that Respondent No. 1, indulged in smuggling of gold and other articles of foreign origin. 15. Mr. Ramamurthy, learned Counsel for the Respondent No. 1, argued that there has been no compliance of the mandatory requirements of the provisions of the Customs Act in the matter of search and thus the search is illegal. 16. Sub-section (4) of Section 102 of the Customs Act provides - "Before making a search under the provisions of Section 100 or Section 101 the officer of customs shall call upon two or more persons to attend and ene Ham cemerbs mriel ceveny fect un medar im weihimn be Bare me oy af bareFA manupatra® so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses." 17. There is sufficient evidence to show that the Customs officers had called two panch witnesses Shetty and Thakkar. It is consistent evidence of P.W. Nos. 2, 3 and 4 that in the presence of panch witnesses, person of Respondent No. 1 was searched and six gold biscuits which were concealed in a pouch tied around the waist were recovered and seized. Panchnama, Exh. A, was drawn. They have stated that one panch left in the midst of writing of the panchnama saying that he had some work and assured that he would return but did not come back, with the result that his signature appeared only on the first page. The other panch Shetty was present throughout the writing of the panchnama he has signed all the four pages of the panchnama. Shetty was working in a canteen in the dock and Thakkar was an employee with the Clearing Agent, As the panchnama is not signed by both the panchas and as they were not examined as witnesses, the trial Court rightly held that the prosecution has failed to prove the panchnama, Exh. A and excluded it from consideration of the case against Respondent No. 1. The prosecution came with an explanation that the panch witnesses were not traceable and therefore, their attendance could not be secured at the time of the trial. On 8-6-1979, Mahabaleshwarkar (PW 2) filed a report (which is at page 274 of the record of the case) that Shetty has left the job and inspite of the efforts he could not be traced. In the report it is mentioned that Thakkar had not given his residential address correctly and his employer was also unable to give his whereabouts. It is true that at the time of evidence Mahabaleshwarkar did not state in detail the efforts made by them to trace out the panch witnesses. Whatever it may be, the fact remains that both the panch witnesses were not examined to prove the panchnama, Exhibit A. I am unable to accept the submission of Mr. Ramamurthy that adverse inference should be drawn against the prosecution on account of non-examination of these witnesses. The entire procedure of search is not vitiated because the panchnama is not signed by both the panchas and there was no compliance of sub-section (4) of Section 102 of the Customs Act 18. Mr, Patwardhan, learned Counsel for the Appellant, argued that inspite of the aforesaid infirmities in drawing up the panchnama seizure of the contraband articles from the possession of Respondent No. 1 is not vitiated and search does not become illegal and in support of this contention he relied upon the decision of the Supreme Court in Radha Kishan v, State of Uttar Pradesh MANU/SC/0146/1962 (1963)IILLI667SC "Tt may be that where the provisions of Sec. 103 and 165, Criminal P.C. are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.” In the present case also the Respondent No. 1 could have resisted the search on the ground of non-compliance with the provisions relating to search. The evidence of the Customs Officers may be required to be examined carefully but the entire case cannot be thrown away on the ground that there was no compliance of the provisions of Section 102(4) of the Customs Act. As pointed out earlier, the learned Magistrate did not base the conviction on the basis of the panchnama but he relied on the confessional statement though retracted by Respondent No. 1, which was corroborated by the evidence of the customs officers. The Position would have beenFA manupatra® different had the case been entirely dependent on the evidence of the panch witnesses. 19. It is necessary to consider the statement, Exhibit C of the Respondent No. 1 recorded under Sec. 108 of the Customs Act, by Mirji (PW 3). On the same night the statement was recorded by P.W. 3 Mirji. The Respondent No. 1 made inculpatory statement. Having said about his visit to the ship and to the cabin of Khalasi he further stated "Mr. Khalasi then offered me whisky and beer and he also joined me. I asked for a tin of chocolate and toffee which he willingly gave me. Then I asked for 4 recorded cassette tapes that too was given to me without consideration. After this he left the cabin for 5 minutes leaving me alone. When he came back he asked me that I should carry for him a small belt containing 6 bars of gold with foreign marking from the ship to outside the docks. This belt he removed from his person which was tied around his waist under his pant. I agreed to oblige him and in fact he removed the said belt containing the gold bars from his person and tied around my waist and I helped him in opening my pant buttons. He assured me that for attending to his work he would give me some consideration in terms of cash after handing over the belt containing gold biscuits to him outside the gate. The arrangement was that he would meet me outside the Red gate, I. Dk. near the hotel which is opposite to the said gate. He told me that we should go together in a taxi to a place that will be decided by him as I have to hand over the gold biscuits to him and receive the money so that no one would witness it. After the Khalasi had tied the said belt containing the gold biscuits I continued to remain with him for another 15 minutes. Neither Mr. Rathod nor myself met each other in each other's cabin while having drinks. I left the cabin while and came down the gangway where Mr. Rathod was standing alongwith the gangway officers. Mr. Khalasi also was ready to go outside into go shore. I was trying to move away from the shed towards the red gate. I met Jamadar Bapu Laxman of customs who enquired of me as to what I was carrying in my Air India hand bag. I now say that I felt that Jamadar Bapu Laxman was following me on doubt. When I was walking from the gangway towards the bridge the said Jamadar Bapu Laxman stopped at the corner of shed no. 18 1Dk and asked me what I am carrying in my bag. I got nervous and told him that I am carrying only some chocolates and cassette tapes. Immediately Mr. Rathod who was standing nearby came to me and told that Bapu Laxman that he had gone on board the vessel M. V. Akbar only for a drink. When Jamadar Bapu Laxman asked Mr. Rathod as to what was carrying Mr. Rathod gave a slip from the site but I was held by Jamadar Bapu Laxman by hand. As I am tired now I may be allowed to rest today, I admit that I have done a foolish act," y me Sd/- (Vv. V. Sharma) (K. K. Balan) 18-10-77 18-10-77 I read the above statement and understood the contents. It is correctly recorded as stated by me.FA manupatra® Before me 18-10-7 20. Subsequently Mr. Kulkarni (PW 4) recorded further statements of Respondent No. 1 which are at Exhibits C1, C2, C3. 21. The confessional statement of Respondent No. 1 is a very important piece of evidence in the case and needs careful scrutiny. It is necessary to find out whether the Respondent No. 1 gave the aforesaid statements voluntarily, Respondent No. 1 contended that Alimchandani dictated the statement to Mr. Sharma and he was forced to sign the same. The other three statements, Exhibits C1, C2 and C3 were already written and he was forced to sign them. Mirji and Sharma admitted that Alimchandani, Assistant Collector was present at the time of recording the statement, Exhibit C. There is no evidence to show that the statement, Exhibit C, was dictated by Alimchandani. Mirji denied that he gave threat to Respondent No. 1 that he would not be allowed to go alive if he did not sign the statement, Respondent No. 1 was Customs Officer and it is difficult to believe that he signed the statement under pressure or threat. 22.Mr Ramamurthy, learned Counsel for Respondent No. 1, argued that the statement, Exhibit C, cannot be considered to be voluntarily made by Respondent No. 1 because the statement is not in question and answer form P.W. 3 Mirji should have asked the Respondent No. 1 to write his own statement and it was not necessary to ask P.W. 6 Sharma to scribe the statement, Exhibit C. He also argued that the last two lines of the statement, Exhibit C, show that Respondent No. 1 was tired and exhausted and he was forced to sign the statement. It is true that the statement, Exh. C,, is not in question and in answer form. No form for recording the statement under Section 108 of the Customs Act is prescribed. The law does not require that such a statement should be in the hand-writing of the person concerned. There is also no evidence to show that the Respondent No. 1 had expressed his desire to write the statement himself and the officers turned down the request. It is true that at the fag end of the statement it is mentioned that Respondent No. 1 sought permission to go to home as he was tired. This would not lead to an inference that Respondent No. 1 was harassed and was compelled to make a confessional statement. On the statement, Exhibit C, the Respondent No. 1 in his own hand-writing made an endorsement that he read the statement and understood the contents. He admitted that it was correctly recorded as stated by him and then signed it. The statement was recorded in presence of many officers. Considering the facts and circumstances of the case as also the evidence of the witnesses, I find that Respondent No. 1 gave this statement, Exhibit C, voluntarily. It may be pointed out that for the first time at the time of the trial he retracted the confessional statements. His last statement, Exhibit C3, was recorded on 14-11-1977 and before that two statements Exhibits C1 and C2 were recorded. In none of these statements the Respondent No. 1 contended that his first statement, Exhibit C was obtained by force. A confession is not be regarded as involuntary merely because it has been retracted at the trial. 23. Mr. Ramamurthy, argued that conviction cannot be based on the retracted confession. He argued that the confessional statement, Exhibit C, cannot be used against Respondent No. 1 unless is corroborated by independent evidence. He relied on the decision of the Supreme Court reported in Muthuswami v. State of Madras 1954 Cri L) 236. It was held :FA manupatra® "No hard and fast rule can be laid down regarding the necessity of corroboration in the case of a retracted confession in order to base a conviction thereon. But apart from the general rule of prudence where the circumstances of a particular case cast a suspicion on the genuineness of the confession it would be sufficient to require corroboration of the retracted confession.” 24, Respondent No. 1 did not dispute that he had gone to the ship and was returning with a hand bag. It is not disputed that the Customs Jamadar Bapu accosted Respondent No. 1 near the gangway on suspicion. Rathod, Customs Officer, who did not support the prosecution on the other point, admitted that Respondent No. 1 had gone to the ship and while he was returning he was accosted by the Jamadar. It is also not disputed that after the preliminary questioning Respondent No. 1 was taken to the Customs Office. It is the consistent evidence of the Customs Officers, P.W. Nos, 2, 3 and 4 that on search of the person of Respondent No, 1 six gold biscuits of foreign origin which were concealed in cloth pouch were recovered. I have found that their evidence on the point of recovery and seizure of the gold biscuits from the person of Respondent No. 1 can be believed and accepted. The probability factory is very much in tune with the prosecution case. I, therefore, find that the retracted confessional statement is corroborated by the independent evidence and circumstances. The statement is genuine and true. 25. Mr. Ramamurthy contended that the co-accused Khalasi made an exculpatory statement before the Customs Officers. He has been acquitted. This circumstance is sufficient to discard the statement Exhibit C. I am unable to accept the contention. The exculpatory statement of accused No. 2 was of no use either to be prosecution or to the defence Mr. Ramamurthy cited a decision in J. A. Naidu v. State of Maharashtra MANU/SC/0125/1979 : 1979CriLJ962 . In that case accused Nos. 1 to 11s' convictior was recorded on the basis of ordinary chit (Exhibit 31) in which the Customs Officer held had noted the names of accused and the currency notes produced by them without drawing a panchnama or recording their confessional statement. The High Court affirmed the conviction relying on the evidence of Custom Officer Mr. Ganguli. Their Lordships of the Supreme Court observed that the document, Exhibit 31, whicl forms the cornerstone of the prosecution case, was a suspicious document, Mr. Ganguli, who was an experienced officer holding a high rank in the Customs Department, did not prepare any panchnama of the money and goods said to have been produced before him by the accused. He did not even record the statement although the same amounts to confession. Not only that, but he did not care even to authenticate exhibit 31 nor did Sainani who prepared the document make a mention therein of the names of accused No. 13 as the person from whom the currency notes were alleged to have been received by accused Nos. 1 to 11. The above decision is not applicable to the facts of the present case. 26. In Emperor v. Kisan Narayan MANU/MH/0072/1951 : AIR1951Bom186 “Where the law requires that the search should be made in presence of the panchas, a panchnama should usually be insisted upon and the conviction should not ordinarily be based on the uncorroborated testimony of police officers." 27. In the present case the customs officer did call the panchas for panchnama but some procedural defect remains as one of the panchas was allowed to go in the midst and the panchnama was not signed by both of them, Apart from that the decision does not lay down a rule of law that in every such a case conviction should not be based on uncorroborated testimony of police officer. The word used is ‘ordinarily.’ SoFA manupatra® it will depend upon the facts of each case as to whether uncorroborated testimony of the officer would be sufficient to warrant conviction. In the present case I find that the evidence of the Customs Officer, P.Ws. 1, 2, 3 and 4 can be believed on the point of seizure of the contraband articles from the possession of Respondent No. 1 though it could not be corroborated by calling the panch witnesses. 28. Mr. Ramamurthy contended that the identity of the sample of gold sent to the Chemical Analyser is not established and therefore the report of the Chemical Analyser that the sample of the gold was having 99.9% purity is of no use. The evidence discloses that the sample was obtained in the presence of two other panchas in the laboratory. It was not obtained in the presence of the panchas who were present at the time of the seizure. It would appear that those panchas were not available or traceable for obtaining sample. It was not suggested that the sample of some other gold bars was obtained and sent for analysis. The officers have deposed that the gold bars recovered from the possession of the accused were of foreign origin. Mahabaleshwarkar says that he had taken all the six bars to the laboratory and they were tested. There is no good reason to disbelieve his evidence on this aspect. 29. Mr. Ramamurthy rightly urged that in any case Respondent No. 1 could not be convicted for offence under Section 136(1) of the Customs Act. Respondent No. 1 was charged with the offence under offence under Section 136(1) of the Customs Act on the allegation that he entered into an agreement with original accused No. 2 to smuggle the said goods out of the dock. In view of the acquittal of accused No. 2, Respondent No. 1 could not be convicted under Section 136(1) of the Act. Mr Patwardhan fairly conceded this position. 30. Mr. Ramamurthy argued that the High Court should not interfere with the order of acquittal because the view taken by the learned Additional Sessions Judge was plausible or possible. The order of acquittal cannot be interfered on the ground that another view should have been taken. He relied on the decision of the Supreme Court in Ganesh Bhavan Patel and another v. State of Maharashtra MANU/SC/0083/1978 : 1979CriLJ51 in which Their Lordships observed “where two reasonable conclusions can be drawn, on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal." 31.In the present case, the learned Sessions Judge has not considered and discussed the important piece of evidence in the form of a confessional statement, exhibit C of Respondent No. 1 though retracted at the trial, was corroborated by the Customs Officers. He acquitted Accused mainly on the ground that the seizure is illegal because of the non-compliance of the provisions of Section 102(4) of the Customs Act and the panchnama was not proved by calling the panch witnesses. Therefore, it cannot be said that the view taken by the learned Sessions judge was plausible or possible. Had the learned Sessions Judge taken into consideration the confessional statement and the fact that it was corroborated by the Customs Officers, I am sure that he would not have reached the conclusion that the case was not proved. 32. Considering the evidence and the circumstances of the case my conclusions are as under :FA manupatra® inference can be drawn against the prosecution for non-examination of the panch witnesses in view of the explanation. (ji) The evidence of P.Ws. 2, 3 and 4 on the point of seizure of the contraband articles from the possession of Respondent No. 1 can be believed and acceptable. (iii) Confessional statement, Exhibit C of Respondent No. 1 though retracted, was made by him voluntarily and it is a true statement, Requirement of Corroboration so that statement has been met by the evidence of P. Ws. 2, 3 and 4 and therefore, it would be sufficient to base conviction of the accused. The defence of Respondent No. 1 that he has been falsely involved by the Customs Officers, particularly by Mr, Alimchandani has been rightly rejected by both the Courts below. (iv) Even if the panchnama, Exhibit A is excluded from consideration of the case against Respondent No. 1, it will not affect the merits of the prosecution case. The prosecution case cannot be thrown away on the ground that panchnama, Exhibit A, is not proved as there is dependable evidence in the form of confessional statements of the Respondent No. 1 supported and corroborated by the evidence of the Customs Officers; and (v) The Prosecution has proved that Respondent No. 1 indulged in smuggling of the gold and other contraband articles and committed the alleged offences, except the offence one under Section 136(1) of the Customs Act. 33. In view of my aforesaid conclusions, the learned Sessions Judge's Judgment of acquittal cannot be sustained. Having taken into consideration all above aspects, the learned Magistrate found that the case of the Prosecution case is proved against Respondent No, 1. The judgment and order of the Magistrate, except the finding of conviction under Section 136(1) of the Customs Act, must be upheld 34, In the result, the appeal succeeds. The Judgment and order dt 22-1-1982 of the learned Additional Sessions Judge, Greater Bombay, acquitting Respondent No. 1 except to the extent of conviction under Sec. 136(1) of the Customs Act are set aside. The order of acquittal of Respondent No. 1 under Section 136(1) of the Customs Act is maintained, The judgment and order dt 13-8-1979 passed by the Additional Chief Metropolitan Magistrate convicting and sentencing Respondent No. 1 (Original accused No. 1) for offences under Sections 135(1)(a)(ii) and 135(1)(b)(ii) of the Customs Act at also under Sec. 5 of the Import and Exports Control Act are restored. © Manupatra Information Solutions Pvt. Ltd.