News By/Courtesy: Neha Mishra | 07 Nov 2021 17:27pm IST


  • Six persons are accused of sandalwood smuggling
  • High Court convicts all of them in one single trial while appeal was filed for two trials
  • Supreme Court decided whether the High Court committed error of law

In an important judgment recently, the Supreme Court observed that unless it falls under the exceptions of law, an accused cannot be convicted based on any evidence that was recorded in his pleader's or his absence and for which he did not get any opportunity of cross-examination.

Six people were accused of smuggling sandalwood and Mangalore tiles after a raid of the customs department at a warehouse. Five of them were present at the warehouse while one of them was absconding and was arrested later on. The trial court, after investigations, acquitted all of the six accused. Aggrieved by the judgment of the court, the customs department filed two separate appeals in the High Court, one for the five accused and another for the one other accused who had absconded. The High court allowed the appeals, convicted all of the accused. All the six accused have appealed before the Supreme Court.

The counsel on behalf of the accused submitted that there were two appeals filed before the High Court. The High Court, however, only considered one case and did not check the evidence of the other case. The court gave the judgment of conviction of all of the accused after hearing only one case. The counsel on behalf of the customs department submitted that the pieces of evidence in both of the appeals were identical. He further submitted that no prejudice has been caused to the appellants in as much as the evidence was the same in both trials. 

The apex court said that, on account of one of the accused absconding, there had been two appeals filed in the High Court, and in light of the above-mentioned provisions, the court will decide the matter. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in the different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. By not going through the evidence of both the appeals and only declaring judgment on both of the appeals based on evidence on one of the appeals was wrong to approach.

Hence, the top court said that we cannot work on the assumption that every piece of evidence will be similar word to word. In other words, the culpability of any accused cannot be decided based on any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination unless the case falls under exceptions of the law. This means that the evidence recorded in a criminal trial against any accused will have a bearing upon only that accused and will not have any bearing upon the co-accused who was tried in a different trial and had evidence recorded in that separate trial. Although, the offence is the same. Therefore, the Supreme Court decided to set aside the judgment of the High Court and asked it to hear the case again, allowing both the appeals.

CASE: AT Mydeen vs. Assistant Commissioner, Customs Department CITATION: LL 2021 SC 610

Section Editor: Kadam Hans | 07 Nov 2021 17:29pm IST

Tags : #Supreme Court #High Court #Smuggling #Customs raid #Error of law #Sandal wood smuggling #CrPC #Separate trials #Accused convicted #Appeal

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