Delhi District Court
A.K. Sarkar vs The State (Nct Of Delhi) on 16 January, 2010
1 Crl. Appeal No.: 09/2007
THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE03,NORTH, DELHI.
Crl. Appeal No.: 09/2007
FIR No.: RC1/87
U/s: 120 B IPC r/w Sec. 5 of
Imports & Exports (Control) Act
1947 and U/s 420/417 IPC
Concerned/Successor Court:
Sh. Kanwaljeet Arora,
ACMM, Delhi
IN THE MATTER OF :
A.K. Sarkar
S/o Late Sh. G.D. Sarkar
R/o 51B, Saket
Section1, New Delhi
........ Appellant
Vs.
The State (NCT of Delhi)
Through CBI
.........Respondent
ORDER
1. Present appeal has been filed by the appellant 2 Crl. Appeal No.: 09/2007 against the order of conviction and sentence dated 11.12.2006 and 20.12.2006 passed by the Ld. ACMM whereby the Ld. ACMM convicted the appellant U/s 120B IPC r/w section 420/471 IPC and section 5 of Import & Export (Control) Act and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/, in default one month SI for the offence punishable U/s 120 B r/w section 420/471 IPC and section 5 of Import & Export (Control) Act 1947, to undergo RI for three years and to pay fine of Rs. 5,000/ in default one month SI for the offence punishable U/s 420 IPC, to undergo RI for three years and to pay a fine of Rs. 5,000/ in default one month SI for the offence punishable U/s 471 IPC and further to undergo RI for three years and to pay a fine of Rs. 5,000/ in default one month SI for the offence punishable U/s 5 of Import & Export 3 Crl. Appeal No.: 09/2007 (Control) Act.
2. In brief facts giving rise to the present appeal are that a complaint was filed by Dy. Chief Controller of Imports and Exports, New Delhi on 30.12.1987 and on the basis of said complaint, the CBI registered a case bearing R.C. No.1/87 CIU (E)IICBI and summons were issued to the appellant including the partnership firm M/s Sanyog International. The appellant was cited as accused no.1 alongwith his father who was arrayed as accused no.2 being the General Manager of M/s Sanyog International. Alongwith accused no.1 i.e. the appellant, accused no.2 i.e G.D. Sarkar and accused no.6 M/s Sanyog International, three more accused persons were impleaded. The case of CBI is that M/s Sanyog international is a partnership concern and accused A.K. Sarkar (hereinafter called the Appellant) is one of its 4 Crl. Appeal No.: 09/2007 partner and accused G.D. Sarkar , the father of appellant A.K. Sarkar is General Manager of the firm. All the accused persons i.e. accused no. 1 to 5 entered into a criminal conspiracy in the year 1985 with the object to obtain an advance license by fraudulent and dishonest means and to misutilize the imported materials by not reexporting the same as per the condition of the advance license issued to them. In pursuance of said criminal conspiracy, the appellant submitted an application for advance license to import Brass Scrap in the office alongwith requisite enclosures. In pursuance of said criminal conspiracy, one of the accused Vijay Kumar managed a bogus Chartered Accountant Certificate purported to have been issued by Sh. Ravinder Kumar. He also managed the SSI Registration certificate of the firm Mohd. Yunus Moradabad and an anti dated Export 5 Crl. Appeal No.: 09/2007 order on the letter head of one firm of West Germany. The application for advance license was prepared in the office of accused Vijay Kumar. In pursuance of said criminal conspiracy an advance license for import of 55.08 MTs of brass scrap of the value of Rs. 7,02,000/ was obtained. The main condition imposed on the license was that the firm shall export 54 MTs of brass artwares for FOB value of Rs. 15 Lacs with in a period of 6 months from the date of clearance of first consignment of import. In pursuance of criminal conspiracy a forged and fictitious legal agreement for advance license was executed on 6.6.1985 between M/s Sanyog International, Mohd. Yunus which was submitted in the office of Joint Chief Controller of Import and Export and same was duly signed by the appellant. The signatures of one Kanta Gupta and Mohd. Yunus were forged on this legal agreement. Accused in 6 Crl. Appeal No.: 09/2007 furtherance of their conspiracy also opened an account in Punjab & Sind Bank and import documents were received in the said bank account. Appellant further arranged a draft of Rs. 50,000/ alongwith other accused persons and deposited the same in the account of M/s Sanyog International. Thereafter the import was made against the abovesaid advance license which was cleared from the Bombay Port by the firm M/s Sri Sainath Corporation. The delivery of consignment was taken in local trucks. In pursuance of criminal conspiracy, accused S.K. Pawar managed bogus goods consignment notes showing as if the material was transported in the trucks from Bombay to Delhi whereas the trucks had never transported such goods as mentioned in the CC notes. In pursuance of said criminal conspiracy accused S.K. Pawar also managed to get the N forms passed from the 7 Crl. Appeal No.: 09/2007 Octroi Check Post on the basis of false and fictitious G.C. Notes and investigation further revealed that after the expiry time limit of Export Obligation, a show cause notice was issued to M/s Sanyog International for explaining the position. Accused G.D. Sarkar represented the firm and submitted a copy of letter requesting for extension of 6 months to fulfil the export obligation. Accused further showed a receipt purported to have been issued by Mohd. Yunus showing that he has duly received the imported material. The purpose of this conspiracy was to import raw material against the import license and then to sell the imported material in the open market at high premium and thus all the accused violated the conditions of license by not reexporting the finished goods.
3. After filing of the complaint, accused persons were summoned. The appellant represented M/s Sanyog 8 Crl. Appeal No.: 09/2007 International (Accused no. 6) also . On an application of CBI, admission denial of the documents filed by the prosecution was conducted wherein accused persons admitted certain documents on 16.8.1989. Precharge evidence was recorded by the complainant in trial court wherein the complainant examined 30 witnesses. During the proceedings in trial court, one of the accused G.D. Sarkar expired and proceedings against him stands abated. After hearing arguments on the point of charge, Ld. Trial Court vide order dated 15.9.2001 framed charge U/s 120B IPC r/w section 420/471 IPC as well as U/s 5 of Import and Export (Control) Act, 1947. Appellant pleaded not guilty to the charges framed against him and claimed trial. The accused persons were provided with an option U/s 246 Cr.P.C. to further cross examine the prosecution witnesses which the appellant duly availed. CBI 9 Crl. Appeal No.: 09/2007 further examined one more witness Sh. N.C. Jain, Retired Assistant Collector of Customs during the after charge evidence. After completion of evidence, statement of appellant U/s 313 Cr.P.C. was recorded. Appellant further chose to lead evidence in defence however since despite given opportunities, the appellant failed to lead evidence in defence, therefore, defence evidence was closed. After hearing the Ld. PP for CBI and counsel for appellant, Ld. ACMM convicted the appellant and sentenced him accordingly. It is against this order of conviction and sentence that the present appeal has been filed.
4. After filing of the appeal, notice was issue to CBI and Trial court record was also summoned.
5. I have heard the Ld. PP for CBI as well as Ld. counsel for the appellant and have carefully perused the 10 Crl. Appeal No.: 09/2007 record.
6. During the course of arguments, Ld. counsel for the appellant submits that he is not challenging the order on the point of conviction of the appellant meaning thereby that he is not challenging the conviction, but submits that the act under which the appellant has been convicted stands abolished in the year 1991 itself. He further submits that now we are in 2010 and almost two decades have passed after the abolition of that act. He further submits that under the new act, the act of appellant does not constitute any criminal offence and there is only adjudication i.e. penalty for the same. Neither there is any provision of trial nor any imprisonment is mentioned. He further submits that appellant has already faced the agony of trial for the last 23 years and has been very regular in his appearance. He further submits that now 11 Crl. Appeal No.: 09/2007 the age of appellant is around 63 years. He has a family to support consisting of his wife and two children. He is no longer doing the business of import and export and prays for mercy and to release the appellant on probation.
7. On the other hand, Ld. PP for CBI submits that the offence took place in the year 198587 and at that time it was the offence under the Import and Export Act and the appellant does not deserve any leniency.
8. The Import and Export Act stands abolished in the year 1991 and has been repealed by Foreign Trade (Development and Regulations) Act 1992. Though under the 'Savings' clause of the new act, the proceedings already commenced under the old act shall continue as if the act has not been repealed, and therefore, the proceedings against the appellant continued but court also cannot overlook the fact 12 Crl. Appeal No.: 09/2007 that now we are in 2010 and almost two decades have passed after the repeal of the old act. Under the new act, the act of the appellant does not constitute any criminal offence and due to the liberalization policies of the Government, now for the violation of any provision of Foreign Trade Act, fine has been provided and not the imprisonment. The appellant has already undergone the agony of trial for the last 23 years and is no longer doing the business of import and export. So far as other substantive offence U/s 420/471 IPC are concerned, these were also committed in order to commit the offence under ImportExport Act.
9. Keeping in view the fact that the appellant has been undergoing trial for the last 23 years and the act under which he has been convicted stands repealed about two decades before and also there is no prior history of 13 Crl. Appeal No.: 09/2007 conviction/involvement of the appellant in any other case, the appellant is sentenced to undergo probation for a period of one year on furnishing a probation bond of Rs. 10,000/ with one surety of like amount and to pay a fine of Rs. 5,000/ (as already deposited),in default SI for one month for the offence punishable U/s 120 B r/w section 420/471 IPC and section 5 of Import & Export (Control) Act 1947, to undergo probation for a period of one year on furnishing a probation bond of Rs. 10,000/ with one surety of like amount and to pay a fine of Rs. 5,000/(as already deposited),in default SI for one month for the offence punishable U/s 420 IPC, to undergo probation for a period of one year on furnishing a probation bond of Rs. 10,000/ with one surety of like amount and to pay a fine of Rs. 5,000/ (as already deposited),in default SI for one month for the offence punishable U/s 471 IPC and further to undergo 14 Crl. Appeal No.: 09/2007 probation for a period of one year on furnishing a probation bond of Rs. 10,000/ with one surety of like amount and to pay a fine of Rs. 5,000/(as already deposited),in default SI for one month for the offence punishable U/s 5 of Import & Export (Control) Act subject to the satisfaction of court concerned.
10. Copy of this order be given to the appellant free of cost. Appellant is directed to appear before the Ld. Trial court on 20.1.2010. Copy of this order alongwith trial court record be sent back. Appeal file be consigned to record room.
(MADHU JAIN) Additional Sessions Judge3 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 16.01.2010 15 Crl. Appeal No.: 09/2007