Scope of Appellate Court’s power doesn’t go beyond evidence available before it in form of trial court record of particular case, unless sec.367 or sec.391 of Cr.P.C. comes into play:SC

Read Judgment: A.t. Mydeen & Another vs. Assistant Commissioner, Customs Department

Pankaj Bajpai

New Delhi, November 2, 2021: The Supreme Court has ruled that that the evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.

In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence, added the Court. 

A Larger Bench of Justice Dr. D. Y. Chandrachud, Justice Vikram Nath & Justice B. V. Nagarathna therefore observed that the High Court fell into an error while passing a common judgement, based on the evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. 

The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then decided the culpability of the accused persons, added the Bench.

Going by the background of the case, the Anti-Smuggling Wing of the Customs department at Tuticorin, raided a warehouse upon receipt of some specific information, wherein large quantities of cardboard boxes were recovered. Upon questioning three persons present there, they admitted that 419 cardboard boxes contained sandalwood billet/sticks valued at Rs. 96,52,800 and 57 cardboard boxes contained Mangalore tiles valued at Rs. 10,000. 

Later, it was found that all the cardboard boxes were kept for export from Tuticorin to Singapore allegedly clandestinely and to be delivered to one RN Contractors Enterprise Company, Singapore. Consequently, the 476 cartons, plastic strips, packing materials, loose Mangalore tiles, marking stencil plates were seized before two witnesses and separate memos (Mahazars) were prepared. 

Thereupon, the Assistant Commissioner of Customs filed criminal complaint against five accused namely A. Dhanapal, A.T. Mydeen, Janarthanan, N. Ramesh and Rahman Sait for offence punishable u/s 132, 132(1) (a)(ii) and 135A of the Customs Act. The prosecution examined seven witnesses and filed 13 documents which were duly proved by the witnesses and marked as exhibits. 

Sixth accused K.M.A. Alexander who was absconding was later arrested and as separate complaint was filed by Assistant Commissioner against him, the Trial Court delivered two separate judgments in both the cases and recorded acquittal of all the accused inter alia on the grounds that no evidence was shown to prove that the accused are Customs House Agents and they packed and kept the boxes and had an intention to attempt to export Sandal Wood, illegally to Singapore. 

The Trial Court said that it was proved that the sandalwood had arrived at Tuticorin two months before, but it was not proved beyond reasonable doubt that the accused, with the intention of evading customs duty u/s 135(1)(a)(ii) of the Customs Act, had attempted to export carton containing prohibited sandalwood by means of forged documents. 

The Trial Court therefore refused to pass any order permitting customs officials u/s 126 of Customs Act either for sale or for auction. 

Aggrieved, the Customs Department preferred two appeals and the Single Judge, Madurai Bench of the Madras High Court, recorded conviction of all six accused u/s 135(1)(a)(ii) r/w/s 135A of the Customs Act. 

After considering the provisions and evidence, the Larger Bench said that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. 

Hence, the scope of the appellate court’s power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal, added the Bench. 

The Apex Court observed that so far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. 

Whatever evidence is available on the record of the case only that has to be considered, but the only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously, added the Court.

The Larger Bench also highlighted that the role of each accused cannot be said to be the same, and the same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. 

Hence, the Apex Court concluded that once a common judgment is set aside for one appeal, it cannot be upheld for another appeal, and there cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim. 

Therefore, the Apex Court remanded the matter to the High Court for a fresh decision.