2005 (98) ECC 375 (MUM)

THE HIGH COURT OF JUDICATURE AT BOMBAY

Criminal Appellate Jurisdiction

A.B. Palkar, J.

Union of India & Ors.

Versus

State of Maharashtra & Anr.

Criminal Writ Petition No. 301 of 2002 Alongwith Criminal Writ Petition No. 311 of 2002

Decided on 28.3.2003

Smuggling

Gold -- Hazardous consequences of the impugned order -- Respondents indulged in Smuggling of Gold -- Succeeded in protracting their prosecution by resorting to the tactics of filing a false and concocted complaint against the protectors of law who dared arrest them The complaints which deserved to be thrown over board at the threshold have been entertained and cases are committed to Sessions Court. This has not only caused serious injustice to the petitioners but has in fact helped the respondents in delaying their proceedings for a serious charge of smuggling huge gold

[Para 34]

The hazardous consequences of the impugned order cannot be over-looked. Respondents were found indulging in smuggling and have been penalized for the very act for which they are being prosecuted. They have succeeded in protracting their prosecution by resorting to the tactics of filing a false and concocted complaint against the protectors of law who did dare arrest them. The practical result of the order is that their activities must have continued unobstructed for quite some time, in any case, till the suspension and removal of Mr. Gaur from service of Air India. By the time criminal cases against the respondents come up for hearing, it is likely that witnesses may not be available or if available may not be in a position to .........(illegible) to the facts noticed and the benefit of all this would obviously go to the respondents. As against this the honest officers have suffered humiliation and mental torture for no fault of theirs simply because the learned Sessions Judge did not apply mind to the facts of the case and the law laid down in clear as (sic, and)unambiguous terms by the Apex Court.

Two of the officers have already retired and others are on the verge. They must have suffered in service by loss or at least delay in promotion. If such complaints are entertained by the Courts so lightly, the necessary consequence would be that the moral of like minded officers of integrity and honesty in the department would be adversely affected and the juniors in rank would develop a feeling, why tough the influential and take risk of even losing job. I am therefore convinced that this is a fit case in which the High Court must exercise its inherent jurisdiction and power to secure ends of justice. The impugned order and rejecting the discharge applications passed by the learned Sessions Judge on 29.1.2002 is quashed and set aside. The Petitioners/accused in Sessions Case No. 889 of 1987 and 890 of 1987 are discharged. Rule is made absolute. [Paras 34, 35, 36]

Complaint of ill-treatment

The learned Magistrate did not find any substance in the complaint of ill-treatment made before him and, therefore, he did not refer the respondents to any medical officer or Registered Medical Practitioner for examination. Neither respondents nor their advocate requested the learned Magistrate to forward them to the Medical Officer for examination of the injuries.

[Para 13]

The learned Magistrate observed that though the accused made complaint of ill-treatment, he did not find any substance in the complaint in view, of the finding of old marks. The injuries allegedly seen on 2.12.1985 could not be correlated to the alleged assault on 28.11.1985 and as such on the face of it the complaints being false and concocted and were liable to be thrown out at the threshold. The finding of one old weal mark on Gaur's body and one old contusion on Balkrishnan led the Magistrate to a factual conclusion on spot that the complaint need not be taken seriously as such complaints are made by prisoners to the Magistrate day in and day out and he has to decide which one deserves attention and which are made in order to get out on bail or to retract the statements recorded. [Paras 5, 13 & 14]

Customs Act, 1962

Section 108 -- Respondents were interested in coercing the Custom Officers so that their anti-social and anti-national activity of smuggling goes on. The first object of the respondents was to retract the confessional statements recorded by the Petitioners under Section 108, Customs Act which are admissible in evidence against them.

[Para 15]

Injury marks