Delhi High Court
Customs vs Dina Aruna Gupta on 22 July, 2011
Author: Suresh Kait
Bench: Suresh Kait
$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.L.P. No.344/2011
% Judgment delivered on:22nd July, 2011
CUSTOMS ..... Petitioner
Through:Mr.P.C.Aggarwal & Mr.Sunder
Lal, Advocates.
versus
DINA ARUNA GUPTA ..... Respondent
Through: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment? Yes.
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be reported
in the Digest? Yes.
SURESH KAIT, J.(Oral)
CRL.M.A.8398/2011(condonation) For the reasons explained in the application, the same is allowed and the delay in filing the appeal is condoned.
Criminal M.A. stands disposed of.
CRL. L.P. No.344/2011
1. Petitioner, the Customs Department, has assailed the impugned order dated 04.06.2010 passed by learned Additional Sessions Judge, Dwarka Courts, New Delhi Crl.L. P. No.344/2011 Page 1 of 18 whereby the respondent Ms.Dina Aruna Gupta was acquitted.
2. The facts of the case are that:-
On 14.03.2001, accused Dina Aruna Gupta, respondent herein who is holder of Indian Passport bearing No.ZI366659, working as On-board courier, went to Singapore on duty and on her return on 15.03.2001 at IGI Airport, New Delhi from Singapore by Air Indian flight No.A1477, she reported at customs courier counter to finish her official duty. Her hand baggage was consisting of one black colour stroller bag and one black colour ladies hand bag. Having completed the other formalities, at the custom courier counter, when she walked through the green channel, was intercepted on suspicion by the custom officer at the exit gate of the arrival hall.
3. At this stage, two independent panch witnesses were called, in the presence of witnesses, customs officer asked the respondent, whether her baggage or person contained any contraband goods, like gold or electronic, to which she replied in the negative.
Crl.L. P. No.344/2011 Page 2 of 18
4. The customs authority served a notice under Section 102 of the Customs Act, 1962 (hereinafter referred as to the 'said Act'). The baggage of the respondent was examined and 10 pieces of gold biscuits of 10 Tolas, each from inside her black colour ladies purse were recovered. The recovered gold biscuits bearing foreign markings, collectively weighing 1166.4 Grams of 999 purity, valued collectively at `5,01,552/-.
5. Personal search of the respondent was conducted, but nothing incriminating was recovered. The respondent could not produce any other documentary or otherwise in support of legal import of the recovered gold and the same was seized under the provisions of the said Act under the reasonable belief that the same were smuggled into India, hence, liable to be confiscated.
6. As alleged, during the course of the inquiry, the respondent tendered her voluntary statement under Section 108 of the said Act, which is admissible in evidence, wherein she admitted the recovery and seizure of the aforesaid gold and other incriminating facts.
Crl.L. P. No.344/2011 Page 3 of 18
7. After investigation, a complaint under Section 132 and 135 (1) (a) of the said Act was filed. The prosecution had examined PW1 Smt.Suchi Goyal, Air Customs Officer(ACO), the seizing officer; PW-2 Shri S. K. Mohanty, Superintendent of Customs, who recorded the statement of the respondent under Section 108 of the said Act.
8. After recording pre-charge evidence, vide order dated 13.09.2001 charges under Section 132 & 135 (1) (a) of the said Act against the respondent was framed, to which she pleaded not guilty and claimed trial. The aforesaid PWs were tendered for their cross examination after charge. Their cross examination was conducted after charge. The statement of the respondent under Section 313 Criminal Procedure Code was recorded and the entire evidence against the respondent was put to her.
9. The respondent herself appeared in the witness box and was examined as DW1. The Trial Court after hearing the arguments convicted the respondent and sentenced her for a period of six months under Section 132 of the said Act Crl.L. P. No.344/2011 Page 4 of 18 and three years under Section 135 coupled with a fine of `80,000/- vide order dated28.08.2002.
10. Respondent preferred an appeal against the aforesaid conviction order dated 28.08.2002 before the Sessions Court and learned Additional Sessions Judge, had remanded back the case for further trial.
11. After remanding back of the case, on 05.07.2003, PW3 Shri Ramesh Chander Aggarwal, who has tested the recovered gold was examined. On 17.09.2003, statement of the accused under Section 313 Cr. P. C. was recorded.
12. After hearing the arguments, respondent was again convicted, vide order dated 31.05.2006 by the Court of learned ACMM; New Delhi and sentenced for a period of six months under Section 132 of the said Act and three years under Section 135 coupled with a fine of `80,000/-.
13. Being aggrieved against the aforesaid conviction order dated 31.05.2006, respondent has preferred an appeal before the Court of Additional Sessions Judge, New Delhi and the said appeal was decided vide order dated 04.06.2010, whereby the respondent was acquitted.
Crl.L. P. No.344/2011 Page 5 of 18
14. The custom department, being aggrieved by the aforesaid order dated 04.06.2010 passed by the learned Additional Sessions Judge, has assailed by filing the instant revision petition.
15. Learned counsel for the petitioner submits that learned Additional Sessions Judge has gone wrong while not appreciating the deposition of PW1 Mrs.Suchi Goyal, ACO, PW2 Shri S. K. Mohanty, Superintendent, who recorded the statement of the respondent under Section 108 of the aid Act and PW3 SHri Ramesh Chander Aggarwal, gold smith and the valuer.
16. On perusal of the impugned judgment dated 04.06.2010, it is seen that learned Additional Sessions Judge has come to the conclusion, on the basis of that statement of the accused recorded under Section 108 of the said Act is admissible in evidence, against the accused unless it is proved that it was forcibly extracted from the accused. No doubt, as per the provision, the statement under Section 108 of the said Act cannot be doubted as it is admissible, however, at the same time, cannot be made sole basis of Crl.L. P. No.344/2011 Page 6 of 18 the conviction particularly if the same is retracted immediately thereafter. Besides, it is also to be seen the circumstances in which the said statement was made and at what time.
17. Learned Additional Sessions Judge noted in the present case, as pointed out by the learned defence counsel that the prosecution did not prove on record the arrest memo of the accused. Further, pointed out that the photocopies of the arrest memo which is on the judicial record and as per the time of arrest is shown as .05hours which in her opinion, amounts to 12.05hours. This fact has not been properly appreciated by the learned Trial Judge and had held that .05hours amounts to 5:00AM. The reasons given by the learned Trial Court was that in the panchnama it was stated that the proceedings started at 23:00 hours on 15.03.2001 and concluded at 03:00 AM on 16.03.2011, shows that panchanama proceedings was over at 12:30AM, hence the claim that the accused was arrested at 12:05 AM, is discarded as it was not based on the arrest memo. In the arrest memo, the time is mentioned as .05hours, which by no stretch of imagination can be termed as 05:00AM, thus if Crl.L. P. No.344/2011 Page 7 of 18 the time of the panchnama proceedings is mentioned 23:00 hours to 00:03 hour, the time mentioned on the arrest memo as 05:00 AM, cannot be ignored.
18. Learned Additional Sessions Judge has observed that arrest memo is to be read independently as a separate document, prepared during the investigation and according to it, time of arrest is clearly mentioned as .05 hours. Had it been that the time of arrest was 05:00 AM it would have been mentioned as 05:00 hours instead of .05 hours.
19. Indisputably, as per the photocopies of the arrest memo, the accused was arrested on 12:05AM whereas statement under Section 108 of the said Act admittedly recorded at 01:00 AM. At that time, the accused/ respondent was already arrested and under the influence of the customs officers for which reasons she could not have made any voluntary statement in her own handwriting.
20. Besides, she retracted from the aforesaid statement at the earliest opportunity available to her. Admittedly, when she was produced in the Court for the first time, after her arrest, she moved an application retracting from the Crl.L. P. No.344/2011 Page 8 of 18 statement on the ground that she was forced to make the statement.
21. Thus, in the circumstances, learned Additional Sessions Judge observed that the statement of the respondent under Section 108 of the said Act was not recorded voluntarily, and has come to the conclusion that the prosecution has failed to prove the statement of the respondent under Section 108 of the said Act, cannot be used against the accused to corroborate the case of the prosecution.
22. As is observed by learned Additional Sessions Judge, prosecution has failed to prove on record that the baggage and person of the respondent was searched on 15.03.2001 as there is interpolation of the dates on the said notice at two places i.e below the signature of PW-1 Smt.Suchi Goyal and below the signature of the accused. The date appears to have been mentioned originally as '16.03.2001' at both the places and thereafter it was interpolated as '15.03.2001'. No explanation has been given by the prosecution for the aforesaid interpolation. This leads to the inference that no notice under Section 102 of the said Act was served upon Crl.L. P. No.344/2011 Page 9 of 18 the respondent/accused, before baggage and person was searched. Rather the inference can also be drawn to the effect that no such search was conducted as claimed by the prosecution.
23. The prosecution, as is observed by the learned Additional Sessions Judge, has not produced the Panch witnesses to prove the alleged recovery of the gold biscuits from the possession of the accused.
24. It was further observed from the learned Trial Court's order that since accused had admitted in her statement under Section 108 of the said Act, the recovery of the gold from her possession, as such non-production of the panch witness not fatal to the case of prosecution.
25. Further, learned Additional Sessions Judge did not agree with the aforesaid view of the learned Trial Court and was of the view that onus is always on the prosecution to prove its case. As it is already observed above that the statement of the accused under Section 108 of the said Act, in the present case is of no help to the prosecution, since it was recorded after the arrest of the accused, therefore, it Crl.L. P. No.344/2011 Page 10 of 18 was necessary on the part of the prosecution to examine the panch witness to prove the alleged recovery of the gold bars from the possession of the accused.
26. It was also seen by the learned Additional Sessions Judge from the record that the intercepting officer has also not been examined by the prosecution nor even has cited as a prosecution witness. The prosecution has not even brought on record as to who was the officer who had intercepted the accused on the basis of the suspicion. The only witness examined by the prosecution on record regarding the alleged recovery of gold bars from the possession of the accused is PW-1 Smt.Surchi Goyal, Air Custom Officer, who in her examination in chief claimed that she had intercepted the accused on suspicion, whereas, in her cross examination she testified that the accused was intercepted for the first time by the gate officer and not by her, she could not tell the name of the gate officer. Further, in her examination in chief, she stated that she had searched the hand purse of the accused, which was found to contain ten gold biscuits of 10 Tolas each, which were wrapped in white colour handkerchief and the biscuits were Crl.L. P. No.344/2011 Page 11 of 18 bearing foreign markings as "THE PERTH MINT AUSTRALIA - TEN TOLAS 999". Whereas, in her cross examination dated 11.10.2001, she testified that when she was called for further proceedings in the matter the gold was lying in the bag wrapped in the handkerchief of white colour. The witness has not explained as to when she had left the proceedings and when she had again joined the proceedings. Neither she could give the description of bag nor it has been mentioned in panchnama.
27. It was further noticed that PW1 in her entire testimony even did not disclose the name of the panch witness and from where they were called and who had called them. She categorically testified that she has not told as to whether the name of the officer, who had called the panch witness, nor they were cited in the list of witnesses, as she had not called the witnesses.
28. Regarding the sanction, PW1 Smt.Surchi Goyal, testified in her cross examination, that she had not obtained the sanction for prosecution in this matter and she had simply put to the file. Thus, the prosecution has even failed Crl.L. P. No.344/2011 Page 12 of 18 to file on record that the sanction Ex.PW1/N granted by the Commissioner of Custom was applied by PW-1 or any other officers and that the same was granted by the Commissioner of Custom after applying its mind on the facts of the present case. As per the testimony of PW-1 it appears that, as was observed by learned Additional Sessions Judge, had simply put to the complaint before the Commissioner of Customs and had gathered sanction for the prosecution of the accused in mechanical manner without due application of mind. The provision envisaged in Section 137 of the said Act are mandatory. As per the same, no Court shall taken cognizance of any offence under Section 132, 133, 134 of 135 of the said Act, except with the previous sanction of the Commissioner of Custom.
29. Thus, the sanction was granted by the Commissioner of Customs in mechanical manner without applying the mind to the material placed before him by the investigating officer and then to decide whether the prosecution of the accused was required or not. Though, PW1 Mrs.Surchi Goyal has claimed that she was not the IO of the case, but in her cross examination, testified that she had put up the complaint for Crl.L. P. No.344/2011 Page 13 of 18 sanction for prosecution. She has nowhere testified that she has produced all the documents such like panchnama, summons under Section 102, 108 of the said Act and the statement of the accused besides the other documents for his perusal to facilitate him to take a decision on sanction.
30. Recovery of the gold bars of 24^ from the possession of the accused was also to be proved by the prosecution. At the time the prosecution was to prove the time of the recovery of gold from the possession of the accused and it was of foreign origin.
31. The prosecution has examined PW3 Shri Ramesh Chand Aggarwal, the gold smith and the valuer who had tested the gold bars allegedly recovered from the possession of the accused. Whether PW3 Shri Ramesh Chand Aggarwal was possessed of any qualification in the matter of testing gold was liable to be proved by the prosecution. The certificate issued by the PW3 Shri Ramesh Chand Aggarwal i.e. Ex.PW1/F does not disclose the method on the basis of which he had tested the gold and had reached to the conclusion that it was gold of 24^ purity. Crl.L. P. No.344/2011 Page 14 of 18
32. Normally, the test applied for testing gold is furnace test but the same was not applied or resorted to in the present case. There is no evidence on record that PW3 Sh.Ramesh Chand Aggarwal was possessing any proficiency in the matter of testing gold. The certificate/report Ex.PW1/F does not contain any data. Whereas the certificate must contain actual data and not mere opinion. Further, the gold of foreign origin has to be proved by the authentic manner. Law is well settled that mere marking cannot be taken as a proof of the gold for origin of the gold as markings and labels. In such a situation, the statement of the accused under Section 108 of the said Act has no consequences.
33. As per prosecution, the value of the gold as on 15.03.2001 was not taken into consideration, while giving the value of the alleged recovered goods. Learned Additional Sessions Judge found no evidence on record to show that as to what was the market rate of gold or international rate of gold as on 15.03.2001 or even on 16.03.2001 so as to say that the recovered gold was correctly valued. As per the testimony of PW3 Sh.Ramesh Crl.L. P. No.344/2011 Page 15 of 18 Chand Aggarwal, he did depose correctly the value of the gold as mentioned in the certificate Ex.PW1/F. As per his examination in chief, the value of the gold was `5,01,500/- whereas as per the certificate Ex.PW1/F, the value of the gold is mentioned as `5,01,552/-.
34. The visits at the airport of the PW3 Sh.Ramesh Chand Aggarwal has also not been proved. There is no documentary evidence on record about the arrival of the PW3 Sh.Ramesh Chand Aggarwal at IGI Airport. PW3 Sh.Ramesh Chand Aggarwal has admitted in his cross examination that no entry pass was made for him. It is only during the testimony of PW3 Sh.Ramesh Chand Aggarwal, it has come on the record that that PW3 Sh.Ramesh Chand Aggarwal, did not come alone to the airport but was accompanied by his assistant Shri Hitender Gupta and he also testified that the certificate Ex.PW1/F was not in his own handwriting but was prepared by his assistant, referred above. The prosecution has neither cited nor examined him as a prosecution witness. Since the certificate Ex.PW1/F was in the handwriting of Shri Hitender Gupta, it was more necessary that he was to be cited as witness, and should Crl.L. P. No.344/2011 Page 16 of 18 have been examined as a witness to prove that gold bars were tested by the PW3 Sh.Ramesh Chand Aggarwal in his presence and certificate Ex.PW1/F was prepared by him under the direction of PW3 Sh.Ramesh Chand Aggarwal.
35. In his cross examination, he has deposed that he was paid `500/- for the professional charges and the said amount was given to him in cash by Shri O N Sharma, Superintendent of Customs and the aforesaid Superintendent, Custom did not issue any receipt for the said amount. At the same time, he claimed that he used to pay `1,250/- per One lac and he has not given any explanation as to why he accepted `500/- in place of the rates mentioned above.
36. In view of the above discussion, I am of the opinion that the prosecution has failed on account of arrest of the accused, testing of the gold, the value of the gold and the visit of PW3 Sh.Ramesh Chand Aggarwal and the sanction issued by the Commissioner of Customs. On these issues, the prosecution could not prove, I note, all the issues raised have been dealt with by learned Additional Sessions Judge. Crl.L. P. No.344/2011 Page 17 of 18
37. I find no infirmity in the order passed by the learned Additional Sessions Judge; therefore, I am not inclined to interfere with the order passed by learned Additional Sessions Judge.
38. In view of above, Criminal L.P. No.344/2011 is hereby dismissed.
39. No order as to costs.
SURESH KAIT, J JULY 22, 2011 Mk Crl.L. P. No.344/2011 Page 18 of 18