Delhi District Court
Customs vs . Yadu Nandan @ Jai Prakash Cc No. 58/1/99 ... on 27 August, 2012
IN THE COURT OF SH. GAUTAM MANAN, ADDL. CHIEF
METROPOLITAN MAGISTRATE - 01, PATIALA HOUSE
COURTS, NEW DELHI
Sh. Y.K. Kanwaria,
Air Customs Officer,
IGI Airport,
New Delhi. ..................... Complainant
Versus
Yadu Nandan Vyas @ Jai Prakash,
s/o Sh. Ram Saran Vyas,
r/o 29-C, DDA Flats, Pocket-A,
New Jaffrabad, Shahdra,
Delhi -32. ..................... Accused
Unique Case ID No. 02403R0009511999
CC No. 58/1/99
U/s 132/135(1)(a) and 135-A of the Customs Act,1962.
JUDGMENT U/S 355 Cr. P.C.
a) Sl. No. of the case 02403R0009511999
b) The date of commission of the 06.3.1999
offence
c) Name of the complainant Sh. Y.K. Kanwaria,
Air Customs Officer,
IGI Airport,
New Delhi.
Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 1 of 8
d) Name, parentage & address of Yadu Nandan Vyas @ Jai Prakash,
accused s/o Sh. Ram Saran Vyas,
r/o 29-C, DDA Flats, Pocket-A,
New Jaffrabad, Shahdra,
Delhi -32.
e) Offence Complained of or proved Under Section 132/135(1)(a) of The
Customs Act,1962
f) The plea of the accused and his In his statement under section 313
examination Cr.P.C, the accused stated that he has
been falsely implicated by the Customs
Officers due to some altercation with
them and nothing incriminating was
recovered from his possession. The
accused has further stated that he was
forced / coerced to make involuntary
statement u/s 108 of The Customs Act,
1962. In his statement, the accused
preferred to lead defence evidence.
g) The Final order Accused Yadu Nandan Vyas @ Jai
Prakash is Convicted U/s 132/135(1)
(a) of The Customs Act, 1962
h) The date of such order 27.08.2012
Date of institution of case : 03.05.1999
Date of reserving judgment/order : 04.08.2012
Date of Pronouncement : 27.08.2012
BRIEF FACTS OF THE REASONS FOR THE DECISION :-
1. The Accused Yadu Nandan @ Jai Prakash is facing trial on the allegations of the prosecution that on 06.3.1999 while he was going to Ahmedabad by Indian Airlines Flight No. IC-885 bound for Muscat via Ahmedabad, from IGI Airport, New Delhi, he was found concealing in his rectum two cylindrical packets wrapped in black adhesive tape containing Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 2 of 8 56000 Deutsche Mark and 8500 UAE Dirhams equivalent to Indian Rs. 15,04,375/- which were to be exported and which he did not declare to the Customs and he made a false declaration knowingly and having reasons to believe that the said declaration was false in material particulars and thereby committed an offence under section 132 of The Customs Act, 1962. Accused is also facing trial on the allegations that on the aforesaid date, time and place he was knowingly concerned in the fraudulent evasion/ attempt at evasion of the Prohibition imposed u/s 12(2) of FERA, 1973 read with Section 11 of the Customs Act, 1962, on the export of above said foreign currency recovered and seized from him and thereby committed an offence punishable under section 135(1)(a) of The Customs Act, 1962.
2. The complaint was filed by Sh. Y.K. Kanwaria, Air Customs Officer, IGI Airport, New Delhi. After the pre-charge complainant evidence, the learned predecessor of this Court framed the charge against the accused Yadu Nandan @ Jai Prakash under section 132/135(1)(a) of the Customs Act, 1962 on 06.01.2005 to which he pleaded not guilty and claimed trial.
3. The complainant has examined total two witnesses in support of its case i.e. PW-1 Sh. Y.K. Kanwaria (Complainant) and PW-2 Sh. U.K. Mishra.
4. In his statement under section 313 Cr.P.C, the accused stated that he has been falsely implicated by the Customs Officers due to some Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 3 of 8 altercation with them and nothing incriminating was recovered from his possession. The accused has further stated that he was forced / coerced to make involuntary statement u/s 108 of The Customs Act, 1962. In his statement, the accused preferred to lead defence evidence.
5. As mentioned above, the accused in his statement u/s 313 Cr.P.C. preferred to lead defence evidence,however, as per record, the accused did not lead any defence evidence in support of his case despite opportunities and the defence evidence was ultimately closed vide order dated 16.4.2007.
6. I have heard the arguments and carefully perused the record.
7. PW1 Y.K. Kanwaria is the complainant of the case. He has proved the complaint as Ex. PW1/A and the sanction and authorization for prosecution dated 26.04.1999 as Ex.PW1/B. The Notice u/s 102 of The Customs Act, 1962 served upon the accused has been proved as Ex.PW1/C. The panchnama dated 06.3.1999 vide which recovered 15000 D.M. 8500 UAE Dirhams were seized from his (accused) rectum in two cylindrical packets wrapped in black adhesive tape collectively valued at Rs.15,04,375/- by PW-1 in the presence of two independent panch witnesses has been proved as Ex.PW1/D. Travel documents such as air ticket, cabin baggage tag and boarding pass were also seized in terms of panchnama Ex.PW1/E have been proved as Ex.PW1/E to Ex.PW1/E-3. His declaration of domestic passenger Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 4 of 8 (declaration form) has also been proved Ex.PW1/F. The arrest memo has been proved as Ex.PW1/G.
8. PW-2 Sh. U.K. Mishra, Sr. Intelligence Officer, DRI, New Delhi deposed that he was competent to serve summons upon the accused. The said summons have been proved as Ex.PW2/A. He further deposed that he recorded voluntarily statement of the accused, which he (accused) wrote in his own handwriting, has been proved as Ex.PW2/B.
9. The case of the prosecution against the accused is that on 06.3.1999 while he was going to Ahmedabad by Indian Airlines Flight No. IC-885 bound for Muscat via Ahmedabad, from IGI Airport, New Delhi, he was found concealing in his rectum two cylindrical packets wrapped in black adhesive tape containing 56000 Deutsche Mark and 8500 UAE Dirhams equivalent to Indian Rs.15,04,375/- which were to be exported and which he did not declare to the Customs and he made a false declaration knowingly and having reasons to believe that the said declaration was false in material particulars.
10. PW-1 complainant has deposed that on 06.03.1999 he was on preventive duty in the departure hall of IGI Airport, New Delhi, the accused arrived at the Airport for going to Ahmedabad by flight No. IC-885 dated 06.03.1999 bound for Muscot via Ahmedabad. He further deposed that he intercepted the accused when he was proceeding towards security check after submitting his declaration of domestic passengers/ declaration form and asked Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 5 of 8 the accused if he was carrying any unauthorized foreign currency to which he replied in negative. Thereafter, on suspicion two independent witnesses were called and in their presence again the accused was asked if he was carrying any unauthorized foreign currency to which he again replied in negative. PW-1 deposed that thereafter the accused was served with a notice u/s 102 of The Customs Act, 1962 Ex.PW1/C giving him option for search of his person and baggage to be conducted in the presence of a Magistrate or a Gazetted officer to which the accused replied that the search could be conducted by any Customs Officer without the presence of any Magistrate or Gazetted officer. PW-1 further deposed that thereafter in the presence of independent witnesses, hand bag was examined (brief case) but nothing incriminating was found therein and accused was taken to near by room where his personal search was conducted and nothing incriminating was found from him initially. He further deposed that on repeated questioning he admitted that he has concealed two packets of foreign currency in his rectum and then he squated down and ejected two cylindrical packets duly wrapped with black adhesive tape, asked him to wash those packets and on opening the packets 56000 D.M. and 8500 UAE Dirhams were recovered collectively valued at Rs.15,04,375/-, on demand the accused could not produce any evidence documentary or otherwise for the lawful acquisition possession and export thereof, the said foreign currency therefore seized vide Ex.PW1/D, travel documents i.e. air ticket, cabin baggage tag and boarding pass were also seized vide Ex.PW1/E-1 to Ex.PW1/E-3, declaration form of the domestic passenger of the accused was also taken into possession vide Ex.PW1/F. He further deposed that after recording the statement of the accused he was put Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 6 of 8 under arrest vide Ex.PW1/6.
11. Nothing substantial has appeared in the testimony of PW-1 to discredit his testimony. The testimony of PW-1 seems reliable and worthy of credence. No circumstances has been shown on record as to why PW-1, a Govt. Servant, will falsely implicate the accused in the present case. By testimony of PW-1 the prosecution has proved beyond reasonable doubt that on 06.03.1999 the accused was intercepted by PW-1 after he had completed the customs formalities etc. while leaving for Muscat via Ahmedabad by flight no. IC-885, the accused made a false declaration knowingly and having reasons to believe that the said declaration was false in material particulars and concealed 56000 Deutsch Mark and 8500 UAE Dirhams foreign currency equivalent to Indian Rs.15,04,375/- in his rectum in two cylindrical packets wrapped in black adhesive tape, was trying to export the said foreign currency in violation of restriction of export of foreign currency and the said foreign currency was seized vide panchnama Ex.PW1/D. PW-2 has also proved the statement of the accused as recorded u/s 108 of The Customs Act, 1962 as Ex.PW2/B. Perusal of said statement shows that it is self inculpatory and in it the accused has admitted his entire guilt and offence. During arguments also the accused has not disputed the recovery of foreign exchange from him and has also not disputed the veracity of the said statement (Ex.PW2/B). It is a settled law that the facts admitted need not be proved.
9. In view of the above said discussion, it is held that the prosecution has proved beyond reasonable doubt the charge against the accused and Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 7 of 8 therefore, the accused Yadu Nandan is convicted in the present case under section 132/135(1)(a) of The Customs Act, 1962. Let he be heard on the quantum of sentence.
Announced in the open court on 27th August, 2012 (GAUTAM MANAN) ACMM-01: NEW DELHI 27.08.2012 Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 8 of 8 -1- IN THE COURT OF SH. GAUTAM MANAN, ADDL. CHIEF METROPOLITAN MAGISTRATE - 01, PATIALA HOUSE COURTS, NEW DELHI Sh. Y.K. Kanwaria, Air Customs Officer, IGI Airport, New Delhi. ..................... Complainant Versus Yadu Nandan Vyas @ Jai Prakash, s/o Sh. Ram Saran Vyas, r/o 29-C, DDA Flats, Pocket-A, New Jaffrabad, Shahdra, Delhi -32. ..................... Accused Unique Case ID No. 02403R0009511999 CC No. 58/1/99 U/s 132/135(1)(a) and 135-A of the Customs Act,1962. 27.08.2012 ORDER ON QUANTUM OF SENTENCE :-
Present Ld. Proxy SPP for Complainant department.
Convict in person.
Arguments heard on quantum of sentence and record perused. The convict prays for a lenient view and submits that this is his first conviction and no other case is pending against him. He submits that he is facing trial since 1999, is shameful for his act and will not repeat the offence again. He also submits that he has remained in custody from 06.03.1999 to August,1999.
Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 9 of 8 -2-
On the other hand, learned SPP for complainant submits that appropriate punishment as provided in statute be given to the convict.
In view of the submissions and the nature of the offence, I am not inclined to release the convict on Probation of Good Conduct. However, in view of special and adequate reasons as mentioned in submissions of the convict and the facts of the case, the interest of justice will be served by the orders, if the convict is sentenced to the imprisonment already undergone by him in J.C. and to pay a fine of Rs.10,000/- under section 132 of The Customs Act, 1962 and in default of payment of fine to SI for seven days. The convict is further sentenced to imprisonment already undergone by him in J.C in this case and to pay a fine of Rs.10,000/- under section 135(1)(a) of The Customs Act, 1962 and in default of payment of fine to SI for ten days. Total fine of Rs. 20,000/- paid by the convict.
Order accordingly.
File be consigned to record room.
Announced in the open court on 27th August, 2012.
( GAUTAM MANAN ) ACMM-01: NEW DELHI 27.08.2012 Customs Vs. Yadu Nandan @ Jai Prakash CC No. 58/1/99 Page 10 of 8