Delhi District Court
Dri vs . Liaqan & Anr. on 30 September, 2020
IN THE COURT OF SH. PAWAN SINGH RAJAWAT,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 8/2016
U/s : 135 Customs Act, 1962 & Section 489C IPC
DRI Vs. Liaqan & Anr.
Date of institution of case : 27.07.2007
Date of reserving the judgment : 30.09.2020
Date of pronouncement of judgment : 30.09.2020
JUDGMENT
1. S. No. of the Case : 58/1/07
2. Date of Commission of Offence : 28.02.2007
3. Name of the complainant : S.D. Sharma
Intelligence Officer
Directorate of Revenue
Intelligence
4. Name,parentage : 1. Mrs.Liaqan W/o. Late
& address of accused Ali Ahmad R/o.HNo. 258,
Block No. 27, Trilokpuri,
Delhi (proceedings
abated on 30.09.2020
2. Shan Mohd. @ Shanu
S/o Sh. Mohd. Ilias R/o.
949, Kotla Mewatian, Ali
Jan Ki Chakki, Sikandar
Gate Police Chowki,
Hapur, U.P.
5. Offence complained of : u/s 135(1)(a)Customs
Act, 1962 & Section
489C IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted.
CC No. 8/2016 DRI Vs. Liaqan etc. 1/17
Case of the Prosecution
1. The brief facts of the case are that a specific information was received that accused Liaqan who had arrived from Lahore to Delhi by Pakistan International Airline, Flight no. PK 270 on 28.02.2007 is carrying Fake Indian Currency Notes (FICN). Accordingly, she was intercepted while she crossed the green channel and proceeded for exit gate towards the city side and met two young boys. As per complaint, all three were escorted to the Customs arrival hall wherein the baggage of accused Liaqan was checked which consists of black coloured bag of brand 'Expart', another black coloured bag of brand 'Shyamji', a cardboard carton having melamine dinner set 'supper' printed on it and a white coloured cloth shoulder bag having 'Ratna Chhap' Zafrani Patti' printed on it. Accordingly, notice U/s 102 of customs Act was given to accused persons and search was conducted in which one cardboard carton having malamine dinner set 'supper' contained 117 pieces of malamine crockery was found. However, on careful examination, the four sides of the carton box were unusually thick which was cut open with the help of blade and found containing 8 packets of khaki colour cellotape neatly sandwiched between outer and inner layers which contains 60 Indian currency notes of Rs. 500/- denomination and total 2000 currency notes of Rs. 500/- denomination were recovered and same were seized vide panchnama. It is further mentioned that accused were arrested and their statements U/s 108 Customs Act were recorded wherein they admitted their guilt and after conclusion of investigation complaint was filed.
2. Cognizance was taken on 27.04.2007 and the accused were supplied with the copies of complaint and documents and matter CC No. 8/2016 DRI Vs. Liaqan etc. 2/17 was adjourned for pre charge evidence during which four witnesses were examined by the department. The charge u/s 135(1)(a) of the Customs Act, 1962 and Section 489C IPC was framed against accused Liaqan and accused Shan Mohd. @ Shanu was charged with offence U/s 135 of Customs Act only to which they pleaded not guilty and claimed trial. During post charge evidence complainant further examined nine witnesses.
3. Since during the trial accused Liaqan has expired and proceedings against her were abated on 30.09.2020 and therefore, the evidence qua accused Shan Mohd. @ Shanu only is being discussed below.
4. PW1 S.D. Sharma was the complainant. He reiterated the facts as mentioned in the complaint. He also stated about the seizure of the case property as well as notice U/s 102 of the Customs Act and arrest of the accused persons. He also stated about sending the case property for expert opinion as well as search conducted at the residential premises of the accused persons. He identified both the accused and the case property. He relied upon document Ex. PW-1/A to PW-1/V and Ex. P-1 to P-6.
During cross examination he admitted that accused Liaqan was intercepted when she had just come out of airport and met the other two persons. He also admitted that he had not disclosed the information received by him to other public persons present at the spot. However, he stated that he disclosed the said information to the public persons called by him who were working in the airport. He also admitted that accused were arrested from a public place where large public were present. He also admitted that he did not ask such public persons to join the raiding party. He also admitted that accused Liaqan has met accused Shan Mohd. and Liaqat Ali CC No. 8/2016 DRI Vs. Liaqan etc. 3/17 outside the airport but denied the suggestion that Shan Mohd. lifted from outside Jama Masjid. He also admitted that there is no recovery from accused Shan Mohd. During post charge evidence, he failed to state the time of interception of accused persons. He denied that nothing was recovered from accused persons.
5. PW-2 B.K. Banerjee deposed that on 28.02.2007, he was posted as Appraiser in DRI at New Delhi and issued the summons accused Shan Mohd. U/s 108 of Customs Act, Ex. PW-2/C for his presence and in pursuance of the same, accused Shan Mohd. appeared before him on 01.03.2007 and tendered his statement Ex. PW-2/D. During cross-examination PW-2 stated that accused Shan Mohd. was sitting in the arrival hall with DRI officials in connection with the seizure of fake Indian currency. He admitted that summon Ex. PW-2/C was addressed to Mohd. Shanu and not Shan Mohd and no notice by the name of Shan Mohd. Was issued by him. He admitted that no notice U/s 108 of Customs Act was served upon Shan Mohd. He stated that the statement of Shan Mohd. Was recorded in his room in DRI office. He also stated that it is nowhere mentioned by him that he has explained the provision of Section 108 of Customs Act to accused. During his further cross- examination, he stated that accused Shan Mohd. was not arrested at IGI Airport. He denied the suggestion that the statement of accused Shan Mohd. was recorded under duress and pressure and that the statement was is not voluntarily or that it was recorded at the dictation of the concerned IO.
During cross-examination in post charge evidence, PW-2 stated that he had issued summons to Shan Mohammad @ Shanu for recording of statement and it took about 5/6 hours to record his statement and no one else was present at the time of recording of CC No. 8/2016 DRI Vs. Liaqan etc. 4/17 statement of Shanu. He denied the that he forced Shan Mohammad to make an involuntary statement U/s 108 of Customs Act.
6. PW-3 Poonam Aggarwal deposed that on 01.03.2007, she was posted as Tax Assistant at DRI HQ, New Delhi. PW-3 has not stated anything regarding any involvement of accused Shan Mohd. and she has only recorded statement of accused Liaqan (since deceased) and prepared her arrest documents.
7. PW-4 Alok Aggarwal deposed that he was posted as Assistant Director, DRI HQ, New Delhi and stated that that two accused persons namely, Liaqan and Shan Mohd. were arrested and he had given the intimation of their arrest vide telegram Ex. PW1/T1 and Ex. PW1/T2 and he also countersigned the deposit memo Ex. PW1/T3. He further deposed that he had issued a letter Ex. PW-1/T5 for conducting search of the house of the accused Shan Mohd. and issued a letter Ex. PW-1/T6 to General Manager, Currency Note Press, Nasik for seeking verification of fake currency notes. He further deposed that he had also written a letter Ex. PW1/T7 to Ex. PW-1/T9 to the Nodal Officer, Airtel and Idea for giving the details of mobile numbers. PW-4 also deposed that he had forwarded a complaint regarding the recovery and seizure of fake currency of Rs. 10 lacs to Commissioner of Police, Delhi and authorized to Sh. S. D. Sharma and Rajiv Sadana to take fake currency notes to Nasik vide letter Ex. PW-1/Q for examination. He further stated that he had also written a letter Ex. PW-1/T11 to the Assistant Commissioner of Customs, New Customs House, New Delhi regarding handing over of packets of fake currency to PW-1 and he received a report Ex. PW-4/A along with annexures regarding search conducted at house of accused Shan Mohd. He also stated that he also received verification report of fake currency notes from CC No. 8/2016 DRI Vs. Liaqan etc. 5/17 General Manager, Currency Press Note, Nasik vide letter Ex. PW-1/R with report Ex. PW-1/S. This witness was not cross examined by Ld. Counsel for accused.
8. PW-5 Rajeev Kumar Sharma deposed that at the relevant time, he was posted as Superintendent (Preventive) Central Excise, Division Hapur, U.P. and he received a letter Ex. PW-1/T5 from DRI office addressed to one Sh. Sunil Kumar, AC (Central) and letter Ex. PW-5/A issued in his name. PW-5 deposed that on the basis of said letter, he along with other officers visited the premises of the accused Shan Mohd for search where his wife and his mother in law were found present but no incriminating was recovered from the house of the accused Shan Mohd. He further deposed that Panchnana Ex. PW-5/B was prepared at the spot and thumb impression of Mohd. Eilyas was also obtained on the said panchnama and execution of the report of search warrant was also submitted by him.
This witness was also not cross examined by Ld. Counsel.
9. PW-6 M. Sazid and PW-7 Ram Kanwar, had not deposed anything with respect to accused Shan Mohd. and PW-6 stated about the enquiry conducted for issuance of Airticket of accused Liaqan. PW-7 stated about enquiry made by him regarding Bhura @ Jamil alongwith Liaqat Ali. PW-8
10. PW-8 Satish stated that serach of acused Liaqan was conducted in his presence and at that time Mohd. Shan is also present vide Ex. PW-1/D, PW-1/E to PW-1/L. During cross examination he denied that no FICN was recorded from accused Liaqan and accused has been falsely CC No. 8/2016 DRI Vs. Liaqan etc. 6/17 implicated in the case.
11. PW-9 Sanjay also stated about interception of accused Liaqan and her search in his presence where another person was also present.
During cross examination he denied that no FICN was recorded from accused Liaqan and accused has been falsely implicated in the case.
12. PW-10 D.B.Sharma, deposed that at the relevant time, he was posted as Inspector (Customs) at New Customs House, New Delhi and on 02.03.2007, he received two sealed trunk containing fake Indian currency notes of 500 hundred denomination each, cardboard carton, 117 pieces of crockery, 08 cell phone packets wrapped with white cloths sealed with the seal of DRI vide Ex. PW- 10/A. During cross-examination he stated that Mr. D.P. Saxena, IO from DRI Headquarters, ITO, Delhi had brought the trunk to the godown on 02.03.2007 during the office hours and denied that he had falsely implicated both the accused.
13. PW-11 Indu Grover stated that on specific information accused Liaqan was intercepted while she was exiting via Green Channel. She further stated that accused Liaqan met with two persons near exit gate and all three were apprehended. He stated that he conducted personal search of accused Liaqan but nothing was recovered, however, from her baggage cardboard box was recovered having Rs. 10 lacs FICN. She also stated about her presence during preparation of panchnama.
During cross-examination she denied that nothing has recovered from accused Liaqan and that she is deposing falsely.
CC No. 8/2016 DRI Vs. Liaqan etc. 7/17
14. PW-12 D. P. Saxena deposed that on 02.03.2007, he was posted as Intelligence Officer at DRI Hq, New Delhi and the case property consisting of two trunks containing fake Indian currency notes, packing and concealing material was deposited by him in the godown of New Customs House, New Delhi vide Ex. PW-10/A. He further deposed that the said case property was received by Sh. D. B. Sharma, Inspector vide receipt Ex. PW-10/A. During cross-examination he stated that he did not deposit any fake currency notes in the valuable godown of NCH.
15. PW-13 Mohd. Irfan deposed that at the relevant time, he was working as a Manager with Almas Travel Pvt. Ltd., and an inquiry was conducted by the said company regarding verification of air ticket no.2142638277499 from Lahore to New Delhi. He further deposed that on 23.04.2007, he had written a letter to Asstt. Director, DRI, New Delhi informing that the said air ticket was issued on the instructions of their sub agent M/s Sajid Tour & Travels, Jama Masjid, Delhi.
During cross-examination he denied that his agency had issued tickets for M/s Sajid Travel.
16. Thereafter, PE was closed and statement of accused persons was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence and stated that nothing incriminating was recovered from his possession and he was lifted by the DRI officers from Jama Masjid where he had gone to purchase cloth. Despite opportunity, no evidence was led by the accused Shan Mohd. in his defence.
17. I have also gone through the relevant provisions of CC No. 8/2016 DRI Vs. Liaqan etc. 8/17 Customs Act, 1962 and considered the written arguments filed by the parties.
18. Relevant provision of Customs Act are reproduced below for reference:-
108. Power to summon persons to give evidence and produce documents.--3[(1) Any Gazetted Officer of customs 4*** shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.] (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
135. Evasion of duty or prohibitions.--3[(1) Without prejudice to any action that may be taken under this Act, if any person--
(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or
(b) acquires possession of or is in any way concerned in carrying, CC No. 8/2016 DRI Vs. Liaqan etc. 9/17 removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or
(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,--
(i) in the case of an offence relating to,--
(A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding 4[fifty lakh] of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds 1[fifty lakh] of rupees, with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.] 2[(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such CC No. 8/2016 DRI Vs. Liaqan etc. 10/17 imprisonment shall not be for less than 3[one year]. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than 3[one year], namely:--
(i) the fact that the accused has been convicted for the first time for an offence under this Act;
(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;
(iv) the age of the accused.]
19. Ld. Sr. SPP for complainant had argued that the prosecution witnesses fully supported the case of the prosecution and relied upon judgment of Kanhiya Lal Vs. Union of India - AIR 2008 (SC) 1044 and submitted that the statements u/s 108 of Customs Act were not retracted, when the accused persons had been produced before the Ld. ACMM, New Delhi and if a statement is not retracted at the first available opportunity that rather reinforces its voluntary character. He also drawn attention to the observations/law laid down by the Hon'ble Supreme Court in the case of D. Bhoormal- 1974 SCR (3) 833.
20. He also cited various case laws on the point of reliance upon the testimony of official/police witnesses, Quantity not the deciding factor, absence of public witnesses, admissibility of statement u/s 108 Customs Act, discrepancies and testimony of hostile witness which only stated the settled position of law and has not specific CC No. 8/2016 DRI Vs. Liaqan etc. 11/17 relevance to the present case.
21. On the other hand, Ld Counsel for accused persons also filed detailed written arguments. She argued that nothing was recovered from the possession as well as residential premises of accused Shan Mohd. She further argued that the alleged voluntary statement of accused is already retracted and same is not corroborated by independent evidence. She relied upon judgment in the matter of Union of India Vs. Bal Mukund : JT 2009 (5) SC 45. She also relied upon judgment in the matter of DRI Vs. Moni : CRL LP No. 216/2007 decided on 02.12.2009 by Hon'ble Delhi High Court. She prays for acquittal.
22. The moot question before this court is to see whether the accused persons have violated the provisions of customs Act and whether accused Shan Mohd. has any role in transporting of FICN which was allegedly recovered from the possession of accused Liaqan (since deceased).
23. Whether the statements u/s 108 Customs Act are sufficient enough to prove the charges: The complainant department has claimed that all the statement of accused persons recorded u/s 108 Customs Act were voluntary and therefore admissible piece of evidence and must be used against the accused persons. To support this Ld. SPP for complainant relied upon the judgement in the matter of Kanhiya Lal Vs. Union of India - AIR 2008 (SC) 1044 and submitted that the statements u/s 108 of Customs Act were not retracted, when the accused persons had been produced before the Ld. ACMM, New Delhi and if a statement is not retracted at the first available opportunity that CC No. 8/2016 DRI Vs. Liaqan etc. 12/17 rather reinforces its voluntary character. He also drawn attention to the observations/law laid down by the Hon'ble Supreme Court in the case of D. Bhoormal- 1974 SCR (3) 833. On the other hand Ld. Counsel for accused persons argued that the said statements were not voluntary and taken under duress and coercion. He also argued that same were retracted and cited the statement of accused persons recorded u/s 313 cr.pc.
24. The statement u/S 108 of Custom Act is to be taken into consideration with usual exceptions and precautions as contained in Section 24 to 27 of the Indian Evidence Act coupled with the attending circumstances in which it has been made to ascertain as to whether the same is voluntary, not made under any inducement, force or coercion and it must not to be believed perse . In any case, it is the responsibility of the complainant to establish that such a statement u/S 108 of Customs Act was made voluntarily, and it becomes all the more important when retraction is there.
25. In the matter of Vinod Solanki Vs. U.O.I, JT 2009 (1) SC 1, it has been held:
It is a trite to say that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded.
26. In K. I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721, relied upon by Ld SPP for complainant, in an appeal against conviction under Customs Act, 1962 and the Gold (Control) Act, 1968, the legal issue before the CC No. 8/2016 DRI Vs. Liaqan etc. 13/17 Apex Court was - "whether the confessional statement of the appellant made to the Customs Officers under Section 108 of the Customs Act, 1962 (for short "the Act"), though retracted at a later stage, is admissible in evidence and could form the basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence?"
Relevant paragraphs of the judgment are:
It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to initiate proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence Act.
20...................................... It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now wellsettled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code.
It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (I) [AIR 1952 SC 214 : 1952 SCR 812] (AIR para 30).
..................................................... If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating CC No. 8/2016 DRI Vs. Liaqan etc. 14/17 the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true.
27. The other aspect which is to be looked into as to whether the confessional statement recorded under Section 108 of Custom Act, can be read against the co-accused or not. In this context Section 10 of Indian Evidence Act also becomes relevant and the statement is to be measured, assessed and appreciated with the relevant provisions as aforesaid to come to any conclusion about its admissibility and credibility. In State of Maharashtra Vs. Akhtar Hussain Rehman Moson 1991(55) E.L.T. 327 (Bom.), it has been held as under :
"Turning to the evidence on record, it has been strenuously urged by the ld. Prosecutor that the statements of the accused which are inculpatory statements and amount to confession of the guilt should have been accepted by the ld. Magistrate as providing sufficient evidence to hold the offence proved. These statements were retracted by the accused. Even though a statement recorded under Section 108 of Customs Act is admissible in evidence and would be relevant , yet it is a salutary rule that unless some amount of corroboration is available to it from some other independent evidence, it would not be safe to rely on it particularly when it is retracted by the person making."
28. The above discussion shows that statement u/s 108 customs Act alone wouldn't be sufficient to convict any person under customs Act unless there is some corroboration. The corroboration must be in the nature of evidence adduced by the complainant which shows that the averments in the statements stands corroborated by independent evidences. The retraction has been filed by accused Shan Mohd. to which formal reply also filed by the department claiming that it is an afterthought based upon legal CC No. 8/2016 DRI Vs. Liaqan etc. 15/17 advice. However, in the reply to the retraction it is not disputed that at the time of filing of reply, accused was in judicial custody and therefore, the claim of retraction being an afterthought and based on legal advice does not stand.
29. No documents have been recovered from accused Shan Mohd. to show that he was aware about the arrival of the stated flight from which accused Liaqan came from Pakistan.
30. In the present case, the complainant alleged transportation of FICN by the accused. However, it has been admitted by all the witnesses that nothing was recovered from the possession of accused Shan Mohd. @ Shanu. The only allegation is that he had come to the airport to receive accused Liaqan (since deceased) and was apprehended while she was approaching him and one Liaqat Ali who has been let off by the customs on the basis of his statement U/s 108 Customs Act. But no material has been placed alongwith the complainant to corroborate such statement of Liaqat Ali also wherein he claimed that he had accompanied accused Shan Mohd. at his asking only. However, in the statement U/s 108 Customs Act, accused Shan Mohd. has stated that one Bhure has sent Liaqat Ali alongwith him for receiving the accused Liaqan, but complainant has decided to act against Shan Mohd. only. As per the statement Shan Mohd. was not having any photograph of accused Liaqan but he has been given the description of accused Liaqan by one Bhure. At arrival terminal of IGI Airport at any given point of time not less than 300 to 500 passengers remain present and the complainant has failed to show how accused Shan Mohd. had identified the accused Shan Mohd. The benefit of doubt must go to accused Shan Mohd.
CC No. 8/2016 DRI Vs. Liaqan etc. 16/17
31. The complainant has failed to prove the involvement of accused Shan Mohd. in the stated trade of FICN. No call detail records of Shan Mohd. @ Shanu have been placed alongwith complaint to show his complicity. There is no explanation why persons present at the exit gate of Airport which includes not only the general public (passengers/taxi drivers) but also the police staff for security purpose, were not joined in the investigation and the complainant choses to call two persons who were working inside the airport. These two persons themselves have not seen the alleged interception and are witnesses only to the Panchnama.
32. The complainant has based its case on the statement of witnesses and documents which are filed on record but none of the documents or the witnesses have been able to prove that accused Shan Mohd. had facilitated the transportation of FICN. The necessary links to connect accused Shan Mohd. To the crime are missing.
33. Hence, in view of the above discussion and evidence on record, I am satisfied that complainant department has failed to prove the allegations against the accused Shan Mohd. @ Shanu beyond reasonable doubt. Benefit of doubt must go to the accused. Accordingly, accused Shan Mohd. @ Shanu stands acquitted of the charges u/s 135 Customs Act, 1962. Bail Bonds cancelled, surety discharged.
34. File be consigned to Record Room.
Announced in the Open court on 30th September, 2020. (Pawan Singh Rajawat) CMM/ND/Patiala House Courts New Delhi CC No. 8/2016 DRI Vs. Liaqan etc. 17/17