Delhi District Court
Dri vs . Dalip Kumar Dass Page 1 Of 8 on 21 August, 2012
IN THE COURT OF SH. GAUTAM MANAN
ADDL. CHIEF METROPOLITAN MAGISTRATE -01
PATIALA HOUSE COURTS, NEW DELHI
Sh. A.K. Sharma
Intelligence Officer,
Directorate of Revenue Intelligence,
Delhi Zonal Unit,
New Delhi ..................... Complainant
Versus
Dalip Kumar Dass,
S/o late Sh. Thapar Dass,
r/o WZ-44A, Gali No.5,
Krishna Park,
Tilak Nagar,
New Delhi-110018 ..................... Accused
Unique Case ID No. 02403R0117582002
CC No. 1013/1/02
U/s 132/135(1)(a) of the Customs Act,1962
JUDGMENT U/S 355 Cr. P.C.
a) Sl. No. of the case
02403R0117582002
b) The date of commission of the 02.10.2002
offence
c) Name of the complainant Sh. A.K. Sharma,
Intelligence Officer,
Directorate of Revenue Intelligence,
Delhi Zonal Unit,
New Delhi
DRI Vs. Dalip Kumar Dass Page 1 of 8
d) Name, parentage & address of Dalip Kumar Dass,
accused S/o late Sh. Thapar Dass,
r/o WZ-44A, Gali No.5,
Krishna Park,
Tilak Nagar,
New Delhi-110018
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 admitted copy of
passenger manifest Ex.PW1/H and
arrest memo Ex.PW1/J and his medical
examination report Ex.PW1/K. He
further stated that it is a false,
fabricated and concocted complaint
case and nothing was recovered from
his possession.
g) The Final order Accused Dalip Kumar Dass is
Convicted U/s 132/135(1)(a) of The
Customs Act, 1962
h) The date of such order 21.08.2012
Date of institution of case : 30.11.2002
Date of reserving judgment/order : 08.08.2012
Date of Pronouncement : 21.08.2012
BRIEF FACTS OF THE REASONS FOR THE DECISION :-
1. Accused Dalip Kumar Dass is facing trial on the allegations of the prosecution that on 02.10.2002 the officers of DRI, Delhi intercepted the accused at IGI Airport, New Delhi, while he was going to Dubai by Emirates Flight No. PK-513 and he did not declare the foreign currency (EURO 78000) equivalent to Indian Rs.37.05 lacs which was later on recovered and seized from his stomach contained in 26 capsules and thereby he committed an offence punishable under Section 132 of The Customs Act, 1962. The accused DRI Vs. Dalip Kumar Dass Page 2 of 8 is also facing trial on the allegations that he was knowingly concerned in attempt to fraudulent evasion of the prohibitions imposed on the export of the foreign currency and committed an offence punishable under Section 135(1)
(a) of The Customs Act, 1962.
2. The complaint was filed by Sh. A.K. Sharma, Intelligence Officer, Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi against the accused on 30.11.2002 upon which the then learned ACMM took cognizance of the offences and accused was summoned.
3. After the pre-charge complainant evidence, the learned predecessor of this Court framed the charge against the accused Dalip Kumar Dass under section 132/135(1)(a) of the Customs Act, 1962 on 19.1.2005 to which the accused pleaded not guilty and claimed trial.
4. The complainant has examined four witnesses in support of its case. PW-1 Sh.A.K. Sharma, Intelligence Officer (Complainant), PW-2 Sh. C.L. Paul, PW-3 Sh. Mukesh Gaur and PW-4 Sh. Madhu Sudan.
5. In his statement under section 313 Cr.P.C, the accused admitted copy of passenger manifest Ex.PW1/H, arrest memo Ex.PW1/J and his medical examination report Ex.PW1/K. He further stated that it is a false, fabricated and concocted complaint case and nothing was recovered from his possession. He also stated that due to altercations with the Customs officer, he has been falsely implicated in this case. The accused preferred not to lead DRI Vs. Dalip Kumar Dass Page 3 of 8 defence evidence.
6. I have heard the final arguments and carefully perused the record.
7. As mentioned above, the prosecution in support of its case has examined total four witnesses. PW-1 is the complainant of the case who proved the complaint filed by him as Ex.PW1/A. The sanction and authorization for prosecution dated 29.11.2002 as given by Mr. K.K. Sharma for prosecution of the accused u/s 132 / 135 (1) (a) of The Customs Act, has been proved as Ex.PW1/B. The notice u/s 102 of The Customs Act, 1962 as given by PW-1 to the accused has been proved as Ex.PW1/D and the reply of the accused to the said notice stating that his search could be conducted by any of the Customs Officer has also been proved. The panchnama dated 02.10.2002 regarding the currency seized from the accused has been proved as Ex.PW1/E. Some other documents which were also seized for further inquiries have been proved as Ex.PW1/F to Ex.PW1/H. The copy of arrest memo has been proved as Ex.PW1/J. The medical examination report has been proved as Ex.PW1/K. PW1 proved the statement of Sh. Madhusudan Travel Agent and the documents surrendered by him as Ex.PW1/L. One parcel sealed with the DRI as detailed in the Panchnama, there is paper slip underneath to that parcel which has been proved Ex.PW1/O.
8. PW-2 C.L. Paul deposed that at the relevant time he was posted as Sr. Intelligence Officer in Delhi Zonal Unit of DRI and he had issued DRI Vs. Dalip Kumar Dass Page 4 of 8 summons Ex.PW2/A dated 03.10.2002 u/s 108 of The Customs Act, 1962 to the accused. In pursuance of the said summons accused tendered his statement on 03.10.2002, which is written in his own hand in Hindi and running into six pages, which has been proved as Ex.PW2/B.
9. PW-3 Mukesh Gaur, deposed that at the relevant period he was posted as Intelligence Officer in DRI. He deposed that on 02.10.2002 on the strength of search warrant he along with other officers of DRI visited the residential premises of the accused and conducted the search but nothing incriminating was recovered or taken into possession. The panchnama was drawn at the spot and the same has been proved as Ex.PW3/A.
10. PW-4 Madhusudan Kateja, deposed that he was working as General Manager in "Travel in Style", 6/79, WE, Karol Bagh, New Delhi since 1997. He deposed to the effect that on 29.10.2002 he had tendered his voluntary statement Ex.PW1/L regarding the ticket details, which was booked by the aforesaid firm. The photocopies of the ticket and other documents have been collectively proved as Ex.PW4/A-1 and Ex.PW4/A-8.
11. The case of the prosecution is that on 02.10.2002 the officers of DRI, Delhi intercepted the accused at IGI Airport, New Delhi, while he was going to Dubai by Emirates Flight No. PK-513 and he did not declare the foreign currency (EURO 78000) equivalent to Indian Rs.37.05 lacs, which was later on recovered and seized from his stomach contained in 26 capsules. DRI Vs. Dalip Kumar Dass Page 5 of 8
12. PW-1 (complainant) has deposed to the effect that on 02.10.2002 he was on duty as Intelligence Officer. PW-1 further deposed that on the basis of intelligence, the the accused would be smuggling foreign currency concealed in his body from Delhi to Dubai by flight no. BK-513 scheduled to leave IGI Airport at 04.30 hours on 02.10.2002, he (PW-1) along with other officers intercepted the accused at IGI Airport while accused was proceeding for security check after his clearance from immigration and Customs. He further deposed that on inquiry, the accused denied possession of any contraband item like foreign currency , narcotic drug on his persons or in his baggage. He further deposed that in response to deeper inquiry, accused admitted that he was carrying foreign currency concealed in his body. The statement of accused Ex.PW2/B u/s 107 of the Customs Act, 1962 was recorded in which accused had admitted that foreign currency of 78000 EURO was concealed in the form of capsules in his stomach and that he would eject them in DRI office of his own without any medical assistance. Then, a notice u/s 102 of The Customs Act, 1962 Ex.PW1/D was served upon the accused in the presence of two panch witnesses to which he replied that his search be conducted by any of the Customs Officer except a Magistrate or Gazetted Officer. Thereafter, personal search of the accused was conducted which resulted in the recovery of two air tickets in his name, his passport, boarding pass but nothing incriminating was recovered from the said baggage and after that the accused ejected out a total of 26 capsules which were wrapped in the the black adhesive tape. On examination of the said capsules DRI Vs. Dalip Kumar Dass Page 6 of 8 by removing the adhesive tape, 6 notes of EURO of 500 denomination each, which were tied with white thread, were recovered from each capsules. Thus, a total of 156 of EURO 500 denomination totalling 78000 EUROS were recovered. PW-1 deposed that the accused on demand could not produce any evidence for lawful acquisition, possession and export of the said currency and therefore, it was seized under the Customs Act, 1962 vide panchnama proved as Ex.PW1/E.
13. 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 Government Servant, will falsely implicate the accused in the present case. The PW2 also proved a statement Ex.PW2/B given by the accused in his own handwriting under Section 108 of the Customs Act which in self incriminating and in it the accused has admitted his entire guilt and offence which corroborates the testimony of PW1 regarding recovery of foreign currency from the person of the accused.
14. The evidence led by complainant proves beyond reasonable doubt that on 02.10.2002 the accused was intercepted by PW-1 after he had completed the customs formalities etc. while leaving for Dubai by flight no. BK-513, the accused made a false statement in material particulars knowing that his statement was false to the effect that he was carrying nothing contraband item like foreign currency narcotic drug on his person or in his DRI Vs. Dalip Kumar Dass Page 7 of 8 baggage whereas he was concealing foreign currency of ERUO 78000 in his stomach, was smuggled out of India in violation of restriction of export of foreign currency and the said foreign currency was seized vide panchnama Ex.PW1/E. 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.
15. In view of the above said discussions, it is held that the prosecution has proved beyond reasonable doubt the charge against the accused and therefore, the accused Dalip Kumar Dass 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 21st August 2012.
(GAUTAM MANAN) ACMM-01: NEW DELHI 21.08.2012 DRI Vs. Dalip Kumar Dass Page 8 of 8 IN THE COURT OF SH. GAUTAM MANAN, ADDL. CHIEF METROPOLITAN MAGISTRATE -01, PATIALA HOUSE COURTS, NEW DELHI Sh. A.K. Sharma Intelligence Officer, Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi ..................... Complainant Versus Dalip Kumar Dass, S/o late Sh. Thapar Dass, r/o WZ-44A, Gali No.5, Krishna Park, Tilak Nagar, New Delhi-110018 ..................... Accused Unique Case ID No. 02403R0117582002 CC No. 1013/1/02 U/s 132/135(1)(a) of the Customs Act,1962 21.08.2012 ORDER ON QUANTUM OF SENTENCE :-
Present Shri Satish Aggarwal and Ms. Pooja Bhaskar, ld. SPPs 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 he remained in custody for 12 months {i.e. in this case for about 2 months (03.10.2002 to 29.11.2002 ) and 10 months in COFEPOSA}. He further submits that he is facing trial since 2002 and is shameful for his act and will not repeat the offence again.
DRI Vs. Dalip Kumar Dass Page 9 of 8
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 period already undergone by him in J.C in this case and fine of Rs. 10,000/- u/s 132 of The Customs Act, 1962 and in default of payment of fine to SI for seven days. The convict is further sentenced to the period already undergone by him in J.C in this case and to pay a fine of Rs.15,000/- under section 135(1)(a) of The Customs Act, 1962 and in default of payment of fine to SI for seven days . Total fine of Rs. 25,000/- paid by the convict.
Order accordingly.
File be consigned to record room.
( GAUTAM MANAN ) ACMM-01: NEW DELHI 21.08.2012 DRI Vs. Dalip Kumar Dass Page 10 of 8