Delhi District Court
Sanjay Verma vs The State on 28 July, 2008
1
IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
CA NO: 32/04
Date of institution: 4/11/04
Date for which judgment was
reserved: 26/7/08
Date of decision: 28/7/08
Sanjay Verma
S/o Sh Harish Verma
139, Anand Vihar, Pitampura,
Delhi. ..... Appellant
Versus
The State
(Directorate of Revenue & Intelligence,
in short D.R.I D Block, I.P Estate, N.Delhi)
.....Respondent
AND
CA NO: 8/05
Date of institution: 18/5/04
Date for which judgment was
reserved: 26/7/08
Date of decision: 28/7/08
Vipin Kumar Kapur
S/o Late Sh P.L. Kapur
B-237, Derawal Nagar,
2
Delhi.
..........Appellant
VERSUS
The State
(Directorate of Revenue & Intelligence,
in short D.R.I D Block, I.P Estate, N.Delhi)
.....Respondent
AND
CA NO: 6/04
Date of institution: 6/5/04
Date for which judgment was
reserved: 26/7/08
Date of decision: 28/7/08
Mohsin Anwar
S/o Late Sh Mohd Khan
R/o 148, Katra Gokal Shah
Jama Masjid, Delhi.
..........Appellant
VERSUS
Directorate of Revenue & Intelligence,
New Delhi
.....Respondent
AND
CA NO: 16/04
3
Date of institution: 26/7/04
Date for which judgment was
reserved: 26/7/08
Date of decision: 28/7/08
1. Bashir Khan
S/o Mohd Khan
R/o Village Hindol, Tehsil: Philodi
District Jodhpur, Rajasthan.
2. Hasam Din
S/o Sh Sher Khan
R/o Village Hindol, Tehsil: Philodi
District Jodhpur, Rajasthan.
3. Qamar Din
S/o Abdul Khan
R/o Village Hindol, Tehsil: Philodi
District Jodhpur, Rajasthan.
...............Appellants
VERSUS
Directorate of Revenue & Intelligence,
New Delhi
.....Respondent
JUDGMENT:
These four appeals are taken together as the same arises out of the same order i.e the order dated 5th April 2004 whereby the appellants herein were held guilty for the offence punishable U/s 135 (1)(b) of the 4 Customs Act and the order dated 19th April 2004 vide which the appellants herein were sentenced to fine of Rs 10,000 each coupled with 3 yrs R.I and in default of payment of fine to undergo one month RI. Benefit U/s 428 Cr.P.C was given to all the appellants.
Notice of all the appeals were given to DRI. Trial court record was also requisitioned.
I have heard ld counsels for the appellants, Sh Satish Aggarwal Special P.P for DRI and perused the record.
Facts in brief giving rise to the present appeals are that on the intervening night of 20/21.1.91 acting on a specific intelligence the officers of Directorate of Revenu Intelligence (Head Quarters, New Dehli) intercepted truck No. RRN 5254 outside the factory situated at A071 Industrial Area GT Karnal road, Delhi. Two drivers namely Bashir Khan and Hasamdeen and three helpers namely Qamardin , Imamdin and Jamaldin were found in the truck at the 5 time of interception. Besides these persons three other persons namely Vipin Kumar Kapoor, Sanjay Verma and Mohsin Anwar were also present near the ttruck to take delivery of the goods loaded in the truck. On seeing the officers Vipin Kr tried to run but was overpowered. Truck NO. RRN 5254 was brought to the office of DRI for its thorough rummaging. Accused No.4, 5 and 6 were also summoned to the DRI office. Truck NO. RRN 5254 was searched in the presence of accused persona and two independent persons. In search 25 slabs of silver each weighing 30 Kg approximately wrapped in gunny bags were recovered which were found concealed on the floor of the truck with thick layer of soil. The accused persons were asked to show or produce any document or otherwise in support of the legal importation, possession, acquisition or transportation of the 25 sliver slabs recovered from the truck. The accused persons stated that they did not possess any such evidence. Thereafter those sliver slabs 6 collectively weighing 852.34 Kg were seized by the officers of DRI U/s 110 of the Customs Act, 1962 under the reasonable belief that the same were smuggled and were therefore liable to be confiscated U/s 111 of the Customs Act. The truck No. RRN 5254 was also seized as the same was used for transporting the abovesaid smuggled silver and was liable to confiscation. Some other documents from the truck were also seized. A government approved valuer was called on the spot who analyzed the sliver slabs and found them to be of 99.50 purity valued at Rs 5795912/-. On this complaint cognizance was taken vide order dated 15.3.91 for the offence punishable U/s 135 (1)(b) of the Customs Act. Pre charge evidence was recorded and thereafter all the appellants herein were charged for the offence punishable U/s 135 (1)(b) of the Customs Act to which they pleaded not guilty and claimed trial. Thereafter complainant produced all the three witnesses i.e complainant as PW 1, Deepak Kr as PW 2 and V.K. 7 Goel were examined in post charge evidence. Three more witnesses were examined at post charge stage i.e Sh V.K. Budhiraja PW 4, Naresh Kr Sharma PW 5 and Sh Kamal Narain Kapoor PW 6. Thereafter complainant closed its evidence and the case was fixed for recording statement of the accused persons. Their statements were recorded U/s 313 Cr.P.C . They claimed innocence. They did not wish to lead evidence in defence and the case was fixed for arguments. Ld trial court after hearing the arguments passed the order of conviction and sentence which is under challenge in the present appeals.
Ld counsel for appellant Bashir Khan, Hasamdeen and Qamardin submitted that they had not made any statement U./s 108 of Customs Act statements on record are not in their own hand and this fact has also been admitted by the witness. In view of this as it is clear that they have not made any statement U/s 108 of the Customs Act which could be 8 read against them. Ld counsel submitted that there is no other evidence against them. The investigation is faulty. The officers had not carried out the investigation properly. The truck was owned by Sh Om Dutt as per the registered cover , but he has not been apprehended and has been let off with ulterior motive. Ld counsel submitted that appellants had to get only Rs 1500 for bringing the truck to Delhi and taking back. They are innocent persons. They are the victim of circumstances. Ld counsel submitted that they were not involved in the commission of offence and they were not knowing as to what is there. Ld counsel submitted that it was Iqbal Khan in whose name the truck was there but he transferred it to Om Dutt who was also not apprehended. Investigation is not proper. Even otherwise the main accused were Satish Kapoor, Javed Khan and Harish . They all absconded and the department had not taken any action against them. 9
Ld counsel Sh S.C. Puri and Sh Naveen Malhotra for appellants submitted that in the present case as per the evidence the statement U/s 108 of the Customs Act was recorded by Sh V.K. Goel. He was Assistant Director in Directorate of Revenue Intelligence at that time. He was specifically asked that he was not authorized to take the statements U/s 108 of the Customs Act while posted in DRI. The relevant portion is as under:
"Question: Can you produce any notification authorizing you to record a statement U/s 108 of the Customs Act while you are posted as Assistant Director in DRI?
Ans. I am competent to record the statement U/s 108 of the Customs Act while posted in DRI.
It is incorrect that I am not competent to record 10 statement U/s 108 of the Customs Act and not a Gazetted officer declared under the Customs Act."
Ld counsel submitted that according to the notification No. 394/71/93-CUS.(AS) dated 4.9.97 regarding the jurisdiction of DRI officers power U/s 108 of the Customs Act was not conferred upon the DRI officers. In the absence of any such notification the DRI officers who had recorded the statement U/s 108 Customs Act without any authority cannot be deemed as a statement recorded U/s 108 of the Customs Act and therefore no reliance on the same can be placed. Ld counsel submitted that in this case the alleged statements U/s 108 were also not recorded in the hands of accused/appellants . Those statements were also retracted and no reliance can be placed on those retracted confessional statements. Ld counsel 11 submitted that in view of this fact that there is no statement U/s 108 of the Customs Act and if there was any that has already been retracted, there is no other evidence. The recovery was not effected on the spot. The benefit of the same be given to them and they be acquitted.
Ld counsel submitted that in the present case allegations are that 25 slabs of sliver weighing 852.34 Kg are concerned that was only of 99.50 purity . There was no foreign marking on the same. There is nothing on record that it was smuggled silver. The onus was upon the complainant/ respondent to prove that it was smuggled silver which they have failed to prove and establish. The property had also not been produced before the court despite opportunity. Even otherwise this is also not a notified article U/s 123 of the Customs Act. Ld counsel submitted that for making out a case U/s 135 (1)(b) it is required that the goods 12 must be such to which Section 123 applies. Section 123 reads as follows:
"Burden of proof in certain cases (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be--
(a) in a case where such seizure is made from the possession of any person,
(i) on the person from whose possession the goods were seized; and
(ii)if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person;
(b) in any other case, on the person, if any, who claims to be the owner 13 of the goods so seized.
2. This section shall apply to gold (and manufactures thereof,) watches, and nay other class of goods which the Central Government may be notification in the Official Gazette specify. "
Ld counsel submitted that according to this Section the gold and the manufacturers thereof watches and other class of goods which the Central Government may by notification in the official Gazette specified are covered. Ld counsel submitted that there is no such notification issued with regard to silver and hence the case does not fall within the ambit of Section 135 (1) (b) of the Customs Act.
Ld counsel further submitted that in this case proceedings U/s 110 of the Customs Act were 14 conducted but no notice of those proceedings was sent to the appellants, which vitiates the proceedings itself. The case property was also not produced before the court meaning thereby that it was not proved on record that 25 slabs of silver were recovered from the appellants. Ld counsel in support of his arguments relied upon the judgments cited as Ishwar Parasram Punjabi Vs Union of India 40 (1990) wherein it was held as under:
"Contention is justified to the effect that the order passed by the Ld Metropolitan Magistrate without knowledge to him, on application U/s 110 (1-A) of the Customs Act, dated 20th April 1989, was not sustainable, because it stands vitiated owing to the lapse committed in not affording opportunity of hearing, or showing cause against such an application 15 being allowed."
Ld counsel submitted that as in the present case no notice was given hence the proceedings recorded U/s 110 of the Customs Act are vitiated. The case property has also not been proved/ produced before the court. The prosecution has therefore failed to prove the recovery of silver from the possession of the appellants herein. The Magistrate who prepared the inventory has also not been examined. Benefit of same be given to the appellants herein and they be acquitted.
Ld counsel further submitted that in the present case DRI was acting on a secret information received about one month before the seizure. That secret information was not reduced to writing and is also not produced before the court. No record of such information has been kept. The contents of that secret 16 information has also not been revealed and hence it creates doubt about the truthfulness of the story of the prosecution. PW 3 who is the star witness has not seen the silver slab lying in the truck himself and hence his testimony cannot be relied upon. Statement of Qamardin U/s 108 of the Customs Act was not recorded either by the custom officer or by accused himself but it has been recorded by Mohsin Anwar. There is no explanation as to why the statement was got recorded by Mohsin Anwar. This itself creates doubt about the truthfulness of the statement U/s 108 of the Customs Act. Ld counsel submitted that there is no evidence except the statement recorded U/s 108 of the Customs Act. The truthfulness of the statements recorded u/s 108 of the Customs Act is itself under doubt. There is no corroboration to the same and therefore benefit be given to the appellants and they be acquitted. Ld counsel in support of his arguments relied upon judgment cited as Mohtesham Mohd Ismile Vs 17 Special Director Enforcement Directorate and Anr 2007 (11) Scale 741 . Ld counsel prayed that keeping in view all these contradictions and the legal position the judgment of Ld trial court is not sustainable under law. The same be set aside and the appellants be acquitted.
Ld counsel for the department submitted that there is no ground in the plea of appeal. So far as power of the officer to record statement U/s 108 of the Customs Act is concerned it was never disputed. Even otherwise the statement was recorded by Assistant Director who is a Gazetted officer and according to Section 108 of the Customs Act a Gazetted officer is also empowered to record statement. Even otherwise this is not the ground taken in the appeal. Ld counsel in support of his argument has relied upon judgment cited as Pushp Lata Vs M.L. Wadhwan. Ld counsel 18 submitted that so far as non production of the case property is concerned, the proceedings U/s 110 (1)(b) of the Customs Act were conducted by Sh A.K. Garg, the then Metropolitan Magistrate as Ex PW 1/K and the correctness of the inventory Ex PW 1/L was certified after notice to the person from whom recovery was effected. Ld counsel submitted that in the judgment relied upon by the appellant i.e Ishwar Parasram Punjabi Vs Union of India 40 (1990), court has directed that notice be given to the person from whom recovery had been effected and that has complied with. Ld counsel submitted that accused persons were found in possession of 25 slabs of silver weighing about 852.34 Kg. The manner in which the silver slabs were brought to Delhi itself show that it was not acquired by any illegal means and was in fact smuggled. It was thereafter melted and converted into slabs. Ld counsel for the department submitted that it was concealed 19 under the thick layer of soil on the bed of truck. This fact itself show that the accused persons were having the knowledge that it is illegally obtained smuggled slabs and that is why they have concealed it. Ld counsel submitted that silver is notified item as per notification No. 28/90-Customs and therefore it cannot be said that case is not covered U/s 135 (1)(b) of the Customs Act under which the appellants herein had been held guilty. Ld counsel submitted that all the witnesses have stood through the test of cross- examination. Recovery had been proved and there is no merit in the appeal hence the same be dismissed.
After hearing arguments and going through the record, I found that after the charge was framed V.K. Goel PW 3 was cross-examined and it was not disputed that he was not authorized to record statement. He was Assistant Director and therefore a Gazetted Officer. He has stated that he was having 20 authority to record statement. Keeping in view these facts simply saying that he was not authorized to record statement have no merit. In my opinion V.K. Goel has recorded statement U/s 108 of the Customs Act rightly within the power and authority and reliance can be placed upon the same. So far as contention that the statement had been retracted, I am of the opinion that the statement recorded U/s 108 of the Customs Act cannot be disbelieved merely because the same has been retracted. In having this opinion I am forfeited by judgment cited as K.I. Pavunny Vs Assistant Collector 1997 (3) SCC 721 and judgment cited as Assistant Collector of C.E Vs Duncan Agro Industrial Ltd AIR 2000 SC 2001. In fact it is a matter of experience that every accused coming to the court retracts statement made U/s 108 of the Customs Act . He has to prove it before it can be acted upon that the statement recorded U/s 108 of the Customs Act was 21 not voluntary. There is no such suggestion or cross- examination to V.K. Goel PW 3 that the statement recorded U/s 108 of the Customs Act were not voluntary or were given under any threat, pressure or inducement. Keeping in view all these facts, I am of the opinion that this contention of Ld counsel has no merit that statement were retracted and therefore cannot be relied upon. Even otherwise there is nothing on record that why these witnesses will extort statement of accused persons. There is no infirmity. I do not find any merit in this contention of Ld counsel.
Next contention of the Ld counsel is that there was no foreign marking on the silver slabs found. I am of the opinion that no doubt there was no foreign marking found on the silver slabs recovered from the truck, but the fact that these silver slabs were kept concealed under the thick layer of soil itself show that silver was not of Indian origin and was smuggled and 22 this fact found corroboration from the evidence available on record.
Appellant Bashir Khan driver of the truck had stated in his statement U/s 108 of the Customs Act had admitted the recovery of silver slabs that he was knowing that the silver slabs were smuggled from Pakistan and that he had agreed to transport the same to Delhi for a benefit of Rs 1500/-.
Hasamdin who was also the driver of the truck admitted the seizure of the silver slabs and that he knew the fact that silver slabs have been smuggled into India from Pakistan.
Qamardin who was helper on the truck had also stated that one trader Nanhey @ Charu explained to him that he was having 25 smuggled silver slabs of foreign origin in the jeeb which were to be loaded in the truck to be delivered at Delhi. He was promised to be paid good amount and he loaded silver slabs which were 23 in gunny bag in the truck. He further stated that these silver slabs were to be off loaded in factory near Derawal Nagar and Shakti Nagar. From these statements it is clear that these appellants were knowing that these silver slabs had been smuggled into India from Pakistan. Appellant Vipin stated that he had met Javed who tell him about the place where these slabs had to be off loaded and he asked him and Mohsin Anwar to accompany him to know about the place of unloading which had already been arranged by him at the garment factory of his son Sanjay Verma. He has to take delivery of these goods as per direction of his father and kept the same concealed in the factory. It was only for this purpose that he went to the factory at odd hour. These statements also show that all the appellants were knowing that dealing in smuggled silver is an offence. Appellant Mohsin Anwar in his statement stated that he was assigned the job of off loading silver slabs. He was knowing Javed for the last 24 about 4 months and had agreed to help him in the smuggling activities for money. These silver slabs were thereafter recovered as detailed above. That recovery corroborates statement U/s 108 of the Customs Act of the appellant that silver slabs which was agreed to be transported to Delhi and was to be off loaded in the factory was ultimately recovered by the officials of DRI.
From the above discussion the circumstances in which the recovery is effected itself show that it was the smuggled silver. I am of the opinion that in the facts and circumstances of the case to expect that any foreign marking would be found available on the silver was not possible as the possibility that the silver was melted and then formed into silver cannot be ruled out. So far as contention that it is not certified item, notification No. 28/90- Customs dated 8th June 1990 had been shown by the Ld SPP according to which silver bullion had also been notified. In view of this I do not 25 find any merit in the contention of Ld counsel.
So far as non production of the case property is concerned proceedings U/s 110 of the Customs Act were carried out and the punchnama was certified. All the witnesses have stood through the test of cross- examination and it is something unbelievable that custom officials would plant such a huge quantity of silver upon accused persons to falsely implicate them. From the aforesaid statement recorded U/s 108 of the Customs Act, it is clear that appellants were dealing in smuggled silver and that is why they were carrying it in the truck after concealing it under thick layer of soil having reason to believe that the same is an offence and the silver slabs is also liable to be confiscated. All the witnesses have been put to the test of cross- examination. They have stood through the test of cross- examination. There is nothing on record that the DRI officials had any ill will or any previous enmity or any 26 reason to falsely implicate the appellants. I do not find any reason to disbelieve their testimony.
So far as non production of case property is concerned, when the appellants themselves have admitted recovery of the silver slabs in their statement U/s 108 of the Customs Act and inventory had already been certified by Ld M.M Sh A.K. Garg, I do not find that non production of case property in such a situation is fatal to the case of DRI.
Keeping in view the above discussion and the evidence I found myself unable to differ with the opinion of the Ld trial court.
So far as the quantum of sentence is concerned, Ld counsel submitted that appellant Hasamdin has four sons and 3 daughters. All are minor. He is working as driver. He has father and mother. He is the sole bread earner of his family and is 27 earning Rs 2500/- P.M. So far as appellant Bashir Khan is concerned, it is submitted that he is having four daughters and one son. He is having mother who is heart patient. His father had already died. He is also working as driver, earning Rs 2500 to 3000 P.M. He is the sole bread earner of his family.
So far as appellant Qamardin is concerned, Ld counsel submitted that he is having 6 daughters, mother and wife. He is working as labourer having meager income. He is the sole bread earner of the family. It is prayed that a lenient view may kindly be taken.
Ld counsel for other appellants submitted that they have no previous criminal record. They are the sole bread earner of their family. They are the first offender. 28 They are facing trial for the last 18 years. Ld counsel in support of their arguments relied upon judgment cited as Subramanium Sethuraman Vs State of Maharashtra & Anr 2004 (3) JCC (NI) 175, K. Suresh Vs M/s Lloyds Finance Ltd 2008 (2) JCC (NI) 145, M/s Hindustan Cables Ltd & Ors Vs The State Govt. of NCT of Delhi & Ors 2008 (2) JCC (NI) 140 Adalat Prasad Vs Rooplal Jindal & ors 2004 (3) JCC 1347 and Gilbert Pereira Vs State of Karnataka 2003 (3) JCC 1351.
It is prayed that lenient view may kindly be taken and only fine be imposed upon the appellants.
Ld SPP for DRI submitted that appellants were involved in offence of smuggling which is more serious offence than the offence of murder as it affects the economy of the entire country. It is prayed that no leniency be shown to such convicts. In the earlier 29 written submission SPP has already submitted that Vipin is previous convict but today another application has been moved mentioning that the department has checked the fact and it is now noticed that appellant had not been convicted but Ram Narain Kapoor S/o Pyare Lal Kapoor and Satish Kumar Kapoor S/o Pyare Lal Kapoor were convicted in C.C. NO: 172/1/92 for the offence punishable U/s 135 (1)(b) of the Customs Act 1962 in connection with the recovery and seizure of gold.
Keeping in view the submissions and the facts of the case, I am of the opinion that all the appellants were involved in serious offence of smuggling of silver. The offence of smuggling is a serious offence. No doubt now the economy of India is opening up but keeping in view the fact that this act was committed in the year 1991 and keeping in view the timing of the offence and the huge quantity of the silver slabs, I am of the opinion 30 that appellants does not deserve any leniency. I do not find any merit in the contention that there is no reason to reduce the sentence. Appeals are dismissed. Bail bond of appellants are canceled. Their sureties discharged. Appellants taken into custody and sent to J/C. Announced in open court (V.K.BANSAL) On 28/7/08 Addl. Sessions Judge New Delhi 31 BASHIR KHAN Vs DRI 28/7/08 Present: Proxy counsel for DRI Appellants in person with counsel Vide my separate detail judgment appeal is dismissed. Bail bond of appellants are canceled. Their sureties discharged. Appellants taken into custody and sent to J/C. File of appeals are consigned to R.R. (V.K.BANSAL) ASJ;N.DELHI 32 SANJAY VERMA Vs DRI 28/7/08 Present: Proxy counsel for DRI Appellants in person with counsel Vide my separate detail judgment appeal is dismissed. Bail bond of appellants are canceled. Their sureties discharged. Appellants taken into custody and sent to J/C. File of appeals are consigned to R.R. (V.K.BANSAL) ASJ;N.DELHI 33 MOHSIN ANWAR Vs DRI 28/7/08 Present: Proxy counsel for DRI Appellants in person with counsel Vide my separate detail judgment appeal is dismissed. Bail bond of appellants are canceled. Their sureties discharged. Appellants taken into custody and sent to J/C. File of appeals are consigned to R.R. (V.K.BANSAL) ASJ;N.DELHI 34 VIPIN KAPOOR Vs DRI 28/7/08 Present: Proxy counsel for DRI Appellants in person with counsel Vide my separate detail judgment appeal is dismissed. Bail bond of appellants are canceled. Their sureties discharged. Appellants taken into custody and sent to J/C. File of appeals are consigned to R.R. (V.K.BANSAL) ASJ;N.DELHI