Delhi District Court
Pushpa Lekhumal Tolani vs . Dri on 11 April, 2007
1
IN THE COURT OF MS RAVINDER KAUR, ASJ
NEW DELHI
CA No. 53/06
Pushpa Lekhumal Tolani Vs. DRI
JUDGMENT
By this judgment I shall dispose off the appeal preferred by the appellant Pushpa Lekhumal Tolani against the order of the Trial Court dtd. 27/9/04 whereby the appellant was convicted for the offence punishable U/s 132 & 135 (1)(a) of the Customs Act and against the order on sentence dtd. 15/10/04 whereby the appellant was sentenced to imprisonment already undergone by her in custody alongwith fine of Rs. 1 lakh U/s 132 of the Customs Act and to pay fine of Rs. 2 lakhs U/s 135(1) (a) of the Customs act and to undergo RI for two months and four months respectively in default of payment of fine.
2
The brief facts necessary for the disposal of the present appeal are that the appellant Pushpa Lekhumal Tolani holder of Indonesian Passport arrived at IGI Airport on 19/11/02 from London by British Airways. In view of the specific intelligence report that she was carrying gold and diamond jewellery and other valuable goods concealed in her baggage which she was not likely to declare to the customs and would pass through green channel without payment of customs duty, her conduct after arrival at IGI Airport was observed. At that time she was accompanied by her husband Sanjoy Chatterjee. It was observed that after collecting seven pieces of their pooled checked in baggage , they both opted for green channel and proceeded towards the exit gate of the customs arrival hall and while they were about to go out of the exit gate, they were intercepted by the DRI Officers. Their passports were checked. The appellant was found holding Indonesian 3 passport while her husband was holding UK Passport. At the time of interception, appellant and her husband were found carrying two handbags each besides seven pieces pooled checked in baggage. They were specifically asked whether they were carrying any dutyable or contraband goods but they replied in negative. Thereafter they were taken to the room of Air customs Supdt (preventive) in the arrival hall. Notice U/s 102 Customs act was served upon them individually in the presence of independent witnesses. After obtaining their written reply to the effect that any gazetted officer of customs / DRI could be present during examination of their baggage including handbags. All the seven bags belonging to both the appellant and her husband which were checked in baggage were examined and were not found containing any objectionable item, similarly no objectionable item was found in the two handbags of the husband of appellant. However, on examination 4 of two handbags of the appellant, these found containing goods consisting of yellow / white metal said to be mainly gold and most of which were studded mainly with white stones said to be diamonds. The details of these items were mentioned in the Annexure A to panchnama dtd. 19/11/02. These items were recovered alongwith certain purchase vouchers and global refund forms , the details of which were given in Annexure B to the panchnama. During panchnama proceedings the appellant disclosed that recovered jewellery items were made of gold and studded with diamonds / precious stones and semi precious stones. She also disclosed the value of the items mentioned in Annexure A and the approx value of the items mentioned in Annexure B. It is alleged that she could not produce any document in support of legal importation and clearance of the said goods. The custom authorities seized these articles with 5 reasonable belief that these were smuggled into India in contravention of the provisions of the Customs Act and were thus liable to confiscation.
The Ld. Trial Court proceeded with the trial of the case. After taking cognizance of the offence, precharge evidence was recorded and charge U/s 132, 135 (1)(a) of the Customs Act was framed against the appellant to which she pleaded not guilty and claimed trial. Thereafter the appellant cross examined the five witnesses examined by the prosecution in precharge evidence. Statement of the appellant was recorded U/s 313 Cr.PC whereby she denied the incriminating evidence against her and stated that she had declared all the goods including seized jewellery before the customs officers and thereafter on enquiry to the DRI Officers. She further stated that she had come to attend the marriage of her friends daughter and the jewellery brought by her was to be used on different occasions of marriage 6 and the new jewellery was to be taken and to be retained at Indonesia with her mother. Regarding the jewellery on which no vat was claimed was to be taken back to London and nothing was to be retained in India. She further stated that the value of the jewellery mentioned in the annexures was not correct and that the customs valuers called by the DRI officers assessed the value at Rs. 25 lakhs. She further stated that most of the items were used ones and that since her income was about Rs. 2 crores per annum, she could afford to buy and use such expensive jewellery. She further stated that in embarkation card she had mentioned the articles of personal effect and jewellery as per list however the officers forced and induced them to write another baggage declaration and also that she alongwith her husband was forced to sign certain documents and to make involuntary and incorrect statement by DRI officers.
7
After appreciating the evidence on record, the trial court found the appellant guilty U/s 132 , 135(1)(a) of the Customs Act. The impugned order of conviction and sentence has been challenged on the grounds that the Trial Court failed to appreciate the relevant facts of the case and law applicable thereon resulting into miscarriage of justice. The Trial Court failed to appreciate the evidence including that produced by the prosecution which established that appellant had no intention whatsoever of evading duty. It is submitted that Trial Court has recognised and accepted that the appellant could not have any profit motive in bringing the jewellery to India in view of the fact that the market price of the jewellery in India was not more than Rs. 25 lakhs while the purchase price of the jewellery abroad was more than Rs. 1.27 crore. It is submitted that with or without payment of duty the appellant would have entered huge loss if she had sold the jewellery in 8 India and as such duty evasion could not be a motive for bringing the jewellery to India. It is further submitted that since the appellant is a foreigner she could not have left such high valued jewellery in India . Further that even if she was required to pay duty, this duty could have been legally reimbursed to her as a drawback of duty U/s 74 of the Customs Act 1962 and under the baggage rules Rule 7, the appellant could bring such personal jewellery free of duty. It is further submitted that the appellant had come to India to attend the marriage of a close friends daughter in India and as such the jewellery was to be used on various ceremonies during the marriage and was to be taken out of India while leaving. Further that the jewellery was bonafide personal effects of the appellant which has come on record through the evidence of PW6 Rajender Kumar Gupta who was summoned by the DRI officers to the airport to evaluate the jewellery. 9 It is submitted that since the Trial Court had also held that the appellant had not concealed the jewellery, therefore, she cannot be termed as a smuggler particularly considering her financial status. It is submitted that sanction to prosecute the appellant was also accorded without application of mind. It is further asserted that the Trial Court failed to consider the circumstances in which the statement of the appellant was recorded U/s 108 of the Customs Act and the Trial Court did not appreciate that the said statement was not made voluntarily by the appellant but under pressure from DRI officers. Further that the said statement U/s 108 Customs Act has not been corroborated by any independent evidence. It is submitted that even the Trial Court failed to appreciate the retraction of the said statement by the appellant within two hours of its being made and till that time she had no assess to legal advice. It is further submitted that the Trial 10 Court failed to appreciate that if the case of the prosecution is that appellant did not make any declaration as required by Section 77 of the Customs Act, in that case the appellant could not be held to be guilty under the provisions of Sec. 132 of the Customs Act which applies only in cases of false declaration and not non declaration. It is submitted that in view of the provisions of Sec. 77 of the Customs Act, the need for a specific declaration has been dispensed with because eitherway when a passenger goes through a red channel or green channel, he is making a declaration U/s 77 of the Act. It is submitted that in the present case the appellant had neither gone through the red channel or green channel therefore the stage of making a declaration had not reached besides since the goods seized from her were her bonafide jewellery she was entitled to go through green channel and as such she did not commit any violation of Sec. 77 of the 11 Customs Act.
Notice of the appeal was given to the DRI who filed detailed reply to the appeal.
During the pendancy of the appeal by the order of Ms. Indermeet Kochar , ASJ, New Delhi dtd. 21/4/06 the appellant was allowed to examine additional witnesses during appeal whereby the appellant examined four DWs in support of her contention that she had come to India to attend the marriage of daughter of her friend and thereafter she was to go back to Indonesia to her mother and thereafter to London. The witnesses examined by the appellant are DW1 Ms. Rajni Balaram, DW2 Sanjay Dutta, DW3 Mr. Jeffrey Hoalim Jones and DW4 Mrs. Renu Sehgal.
Both the parties also filed written arguments. I have gone through the written submissions as well as the oral submissions made by the parties. The counsel for the appellant has submitted that on 12 the same facts and allegations the appellant was issued show cause notice DRIF No. 338/VI/77/ 2002 dtd. 12/12/02 U/s 124 of the Customs Act by the DRI New Delhi and the adjudication proceedings commenced whereby the appellant was given a show cause notice as to why the goods seized from her possession be not confiscated and why penalty should not be imposed upon her U/s 112(a) of the Customs Act. The adjudication officer vide order dtd. 14/8/03 held that the jewellery was required to the declared by the appellant at the airport and the failure to do so was interalia a contravention of Sec. 132 / 135 (1)(a) of the act and directed the confiscation of the said jewellery and articles. The appellant challenged the aforesaid order before the Hon'ble High Court in CWP No. 6633/03 for quashing of the proceedings carried out by the adjudicating authority and for release of her jewellery on the grounds that there was no requirement to declare 13 the jewellery which was the personal effects of the appellant under the Baggage Rules & Customs Act and the appellant could not be proceeded against nor could duty be imposed upon her under the Customs Act. Further that the very issuance of the show cause notice against the appellant was without jurisdiction as she had not violated the provisions of Customs Act or any other law in force. It is further submitted that in the writ petition before the Hon'ble High Court it was also contended that as per rule 7 of the Baggage Rules 1998 ( tourists) were entitled / allowed to bring their personal jewellery and did not require to declare the same and that the term tourists in the present case applies to the appellants as she is a holder of a Indonesian Passport. It was also contended in the writ petition that in accordance with Circular No 72/78 Cus. Dtd. 24/9/98 issued by the Ministry of Finance ( Department of Revenue) the jewellery brought by the appellant was 14 her bonafide jewellery and falls within the term ( personal effects), hence was not required to be declared or subject to payment of duty. Further, In the aforesaid Circular the Board clarified that it is not the intention of the board to verify the newness of every product which traveller brings so long as it is not primafacie new goods which can be disposed of off hand. It is submitted that there is no requirement to endorse passports with even high value personal effects being carried by passengers even on the request of the passenger ( Circular No 12/2000 Cus. F No 495/29/99CusVI). For the aforesaid reasons, all the items of jewellery are bonafide baggage of the appellant and the appellant was entitled to bring them into India free of duty.
It is further submitted that writ petition was preferred by the appellant against the order of the adjudicating officer was allowed by the Hon'ble High Court vide judgment dtd. 13/9/06 and the 15 show cause notice dtd. 12/10/02 was quashed and it was also held that as per the Baggage Rules applicable at the said point of time the appellant was not required to declare the jewellery which was her personal effects and therefore there was neither a false declaration made by the appellant nor any fraudulent evasion of payment of duty. It is further submitted that the aforesaid judgment of the Hon'ble High Court has become final since it has not been challenged by the authorities and the jewellery has also been released by the department to the appellant. It is further submitted that it is a settled principle of law that when a person is proceeded against before a departmental authority and on the same allegations a criminal prosecution is initiated, then in case of exoneration on merits by departmental authority the very basis of the criminal proceedings against such person would be nullified and the continuation of the same would be an abuse 16 of process of law. To that effect, the counsel for the appellant has relied upon an authority Uttam Chand & Ors vs Income Tax Authorities {(1982 ( 133) ITR 909 SC) GL Didwania Vs Income Tax Officer ( l990 (l06) RLT 16 (SC) . He has further drawn my attention to the recent judgment delivered by the Hon'ble High Court in Surekhi Lal Vs Union of India reported in l31(2006) DLT page 12 whereby the following legal propositions have been laid down:
a departmental proceedings are different from trial and so if the departmental proceedings end in favour of the accused the criminal trial autre fois acquit.
B the departmental proceedings and the criminal proceedings can proceed side by side. C If the departmental proceedings end in a finding in favour of the accused in respect of the allegations which also form the basis for the criminal proceedings then the departmental adjudication will 17 remove the very basis of the criminal proceedings and in such situation the continuance of the criminal proceedings will be a futile exercise and an abuse of process of the Court.
It is submitted that the Ld. trial in its judgment dtd. 27/9/04 has observed that appellant failed to show the jewelery in question was her personal jewellery and that she had come to India to attend the marriage of her family friend and also that she failed to show that some of the jewellery in question on which she had claimed back refund was to be taken and left in Jagrata Indonesia as well as the appellant had failed to show that her statement recorded U/s 108 of the Customs Act was not voluntarily. It is submitted that due to bonafide inability the appellant could not lead defence evidence before the trial court and now with the order of the appellate Court the appellant has examined four witnesses in defence and now the 18 judgment of the trial Court has to be seen while appreciating the evidence of the defence witnesses alongwith the law laid down by the Hon'ble High Court in CWP 6633/03.
On the other hand, as per the written submissions filed on behalf of the respondent any order in adjudication proceedings can have no effect on the prosecution. It is submitted that the facts of the cases cited by the appellant are not identical and in none of those cases the suspects were convicted. It is submitted that there is no settled law till date that judgment of conviction by Court of competent jurisdiction shall vanish if somebody is exonerated in adjudication proceedings. It is further submitted that the conviction can be based solely on the statement U/s 108 of the Customs Act 1962 and that there is no material on record to establish that the statements were involuntarily. It is further submitted that even the defence evidence led by the 19 appellant is of no help to her since the witnesses were interested witnesses. It is submitted that when the appellant was produced before ACMM by that time she was already in touch with her contacts including counsel in Delhi. It is submitted that both the appellant and her husband are highly educated and well connected people so it cannot be digested that they were forced to make involuntarily statements. Further that there is no enemity or grudge between the officers of DRI and the appellant, as such the statutory presumption of correctness of Official Act is in favour of the prosecution.
Rejoinder to the written arguments of the respondent was filed by the appellant wherein it is reiterated that the provisions of Section 132 and 135 (1 )( a ) of the Customs Act were not attracted to the facts and circumstances of the present case.
After hearing the submissions of both the 20 parties and going through the material on record, I am of the opinion that the contention of the prosecution that since the appellant was convicted for the offence punishable U/s 132 and 135(1)(a) of the Customs Act, therefore her exoneration in the adjudication proceedings can have no effect, is of no consequence as in the present case the appellant faced the adjudication proceedings on the same facts which were the subject matter of the criminal prosecution and she has been exonerated by the Hon'ble High Court vide its judgment dtd. 13.9.06 in Civil writ Petition No 6633/03 on merits. I fully agree with the contention of the counsel for the appellant that vide order dtd. 13.9.06 the Hon'ble High Court has quashed the very very basis of the criminal prosecution of the appellant.
In the judgment ''Sunil Gulati vs RK Vohra reported in 2007 ( 1) JCC 220'' it has been specifically held that on the same violation against a 21 person both the criminal proceedings and adjudication proceedings can be initiated simultaneously as the proceedings under criminal law need not have to wait for the outcome of the adjudication proceedings and they are independent to each other. It is further held that adjudication before Customs Officer is not a prosecution for an offence nor collector of customs is a Court . Further exoneration by department in adjudication proceedings on a technical ground or giving benefit of doubt not being on merits, would have no bearing on the criminal proceedings. However, exoneration by department in adjudication proceedings on merits and allegation not substantiated at all against the petitioner who was found to be innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue.
In an answer to question whether the charge in departmental proceedings as well as in criminal 22 proceedings are identical and exoneration of concerned person in departmental proceedings is on merit holding no contravention of the provisions of any act, it is held where departmental authority whose tasks is to ensure strict compliance with relevant provisions of statue is satisfied that there is ex facie no contravention of other provisions of any act, it would be utterly unjust to force a person to face the ordeal or a trial on the same set of facts and evidence.
The aforesaid authority is fully applicable to the facts and circumstances of the present case as the appellant faced adjudication proceedings as well as the criminal proceedings on the same set of facts that on her arrival to IGI Airport on 18/11/02 the appellant who was going through the green channel was intercepted by the custom officials and was asked whether she had any duty able item to declare to which she replied in the negative. Thereafter she 23 was detained at the airport alongwith her husband and was found containing 28 packages containing 44 items of jewellery in her two hand bags which she claimed to have brought for wearing at a wedding. The prosecution alleged against her that she tried to smuggle jewellery worth Rs 1.27 cores which she did not declare and evaded duty chargeable thereon. On these facts the appellant faced adjudication proceedings and the criminal prosecution under Section 132 & 135(1)(a) of the Customs Act. Now the question arises if the appellant has already been exonerated on merits in the adjudication proceedings by the Hon'ble High court vide order dtd. 13/9/06 in Civil Writ Petition. No 6633/03 whether the order of conviction passed against her in the criminal proceedings on the same set of facts U/s 132 / 135(1)(a) is liable to be set aside. The answer is in the affirmative in view of the judgment '' Sunil Gulati Vs. RK Vohra reported 24 in 2007 ( 1) JCC 220'' as exoneration in adjudication proceedings on merits demolishes the very basis of the criminal proceedings as once it is held by competent authority that there was no contravention of any provision of law, it becomes utterly unjust to force a person to face the ordeal of the trial on the same set of facts and evidence. The contention of the counsel for departmental that this law is not applicable in cases where a person has already been convicted is of no consequence as appeal is in continuation of trial and it cannot be lost site of that during appeal the appellant was allowed to lead defence evidence whereby she examined four Dws in her defence and proved that she was in India to attend the marriage of daughter of her friend for which purpose she had brought her jewellery to India to be used on different occasions. Under the Baggage Rules framed under the provisions of Customs Act the appellant was not to declare the 25 jewellery which is her personal effect and as such non declaration of the same to the custom authority did not amount to any violation of any provisions of the Customs Act. Rule 11 of the Baggage Rule 1994 defines the personal effect of a tourist as all clothing and other articles new or used which a tourist may personally and reasonably require taking into account all the circumstances of his/ her visit but excluding all merchandise imported for commercial purposes. However, the Baggage Rule of 1994 were superseded by the baggage rule l998. Rule 7 of the Baggage Rule l998 reads as under:
A tourist arriving in India shall be allowed clearance free of duty articles in his bonafide baggage to the extent mentioned in Col. Non 2 of Appendix E. Appendix E is relevant to the tourist who comes from countries other than Pakistan, Nepal and Bhutan and as per the same such tourist is allowed clearance free of duty articles such like used 26 personal effect and travel souvenirs if these goods are used for personal use of the tourists and these goods other than those consumed during the stay in India are reexported when the tourists leave India for a foreign destination and articles upto a value of making 4000 for making gifts. As per the Circular bearing No 72/98 Cus dtd. 24/9/98 the personal effects would include the personal jewellery besides other items mentioned therein. Similarly, a notification No 45/92 the personal effects are defined as articles both new or used as per the Baggage Rule l998 only used personal effects of the tourists are allowed though it is not the intention of the board to verify the newness of every product if a traveller brings so long as it is not prima facie new goods in their original packagings which can be disposed of off hand It has been held by the Hon'ble High Court in Civil Writ Petition 6633/03 that the over all 27 circumstances show that even though she brought jewellery of a huge amount into the country, the appellant had no intention to smuggle the jewellery into India and to sell it off. Further that jewellery if sold in India its cost was only Rs. 25 lacs and it is not understandable why a personal should import jewellery of Rs. 1. 27 cores and tried to smuggle it in India only to sell it for Rs. 25 lacs. It is further held that no such presumption could be raised on the facts of this case that the appellant brought the personal effect to India with a view to dispose of them. It was held that she had not violated any provision of Baggage Rule l998 and as such there is no question of confiscation of goods under Customs act. In view of the aforesaid finding of the Hon'ble High Court I am of the opinion if the appellant was not liable to face any adjudication proceedings on the basis of the same set of facts on which she faced trial under Sec. 132/135(1)(a) of the Customs Act, then 28 her entire criminal prosecution stands vitiated. Section 132 of the Customs act makes false declaration punishable whereas in the facts and circumstances of the case the appellant was not liable to make any declaration nor she made, hence she could not have even be charged fore the offence U/s 132 of the Customs Act. Similarly her prosecution U/s 135(1)(a) with the allegations that she attempted to evade duty on the 44 jewellery items brought by her to India is bad in law since the prosecution failed to prove that these items were smuggled in India with a view to sell them off and with a view to evade duty she did not declare them before the competent authority. Since the jewellery items in question as held by the Hon'ble High Court were her personal effects which she was likely to use in the marriage of a friend's daughter and some of the jewellery she was likely to take to Jakrata / Indonesia and rest she was to take back to UK, she 29 committed no offence by not declaring these jewellery items on her arrival to IGI Airport as these goods were not liable for any duty. Thus, in view of the order of the Hon'ble High Court in Civil Writ Petition No. 6633/03 dtd. 13/09/06 and in view of the authority reported in ''Sunil Gulati vs RK Vohra reported in 2007 ( 1) JCC 220, the impugned order of conviction and sentence is liable to be set aside. Hence, the appeal is allowed and the impugned order of conviction dtd. 27/9/04 and order of sentence dtd. 15.10.04 are set aside. The appellant is acquitted of the charges. Her bail bond is discharged. Fine, if any deposited be released to her.
TCR be sent back. Appeal file be consigned to the Record Room. ANNOUNCEDN IN OPEN (RAVINDER KAUR) COURT TODAY ASJ/NEW DELHI ' DATED : 11/04/07 30 CA No. 53/06 11/04/07 Present: Appellant in person. Vide separate judgment, the appeal is
disposed off. File be consigned to the Record Room. 31
ASJ/ND/11/04/07