Delhi District Court
Cc No 76/1/2012 Customs vs . Kishore Kumar Page 1 Of 7 on 19 February, 2014
IN THE COURT OF SH. SANJAY KHANAGWAL, CHIEF
METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS,
NEW DELHI
Sh. Neeraj Garg,
Superintendent of Customs,
IGI Airport,
New Delhi. ..................... Complainant
Versus
Kishore Kumar
s/o Sh. Hari Kishan,
R/o A-3, Ist Floor,
Vishnu Garden,
New Delhi
also r/o
D/193, West Patel Nagar,
New Delhi ..................... Accused
Unique Case ID No. 02403R034652011
CC No. 73/1/12
U/S 172/174/175 IPC
JUDGMENT U/S 355 Cr. P.C.
a) Sr. No. of the case 02403R034652011
b) Date of commission of offence 29.3.2011
c) Name of the complainant Sh. Neeraj Garg,
Superintendent of Customs,
IGI Airport,
New Delhi.
d) Name, parentage & address of Kishore Kumar
accused s/o Sh. Hari Kishan,
R/o A-3, Ist Floor,
Vishnu Garden,
New Delhi
also r/o
D/193, West Patel Nagar,
New Delhi
e) Offence Complained of or proved Under Section 172/174/175 IPC
CC no 76/1/2012 Customs Vs. Kishore Kumar Page 1 of 7
f) The plea of the accused and his The accused in his statement
examination under section 313 Cr.PC he
stated that he went to Dehradun
on 24.3.2011 and came back on
26.4.2011 and came to Delhi only
for a day during third week of
April, to sign affidavit and other
documents. He further stated that
no summons was served upon him
and he himself appeared before
the concerned authority and there
is no disobedience of the
summons. He further stated that
he appeared before the concerned
Customs officers for at least seven
times and he already exonerated
by the Commission of Customs
(Appeals), New Delhi.
In his statement under Section
313 Cr.P.C the accused
preferred not to lead defence
evidence.
g) The Final order Accused Kishore Kumar is
acquitted under Section
172/174/175 IPC.
h) The date of such order 19/02/2014
Date of institution of case : 23.04.2011
Date of reserving judgment/order : 19.02.2014
Date of Pronouncement : 19.02.2014
BRIEF FACTS/ STATEMENT OF THE REASONS FOR THE
DECISION :-
1. As per brief facts of the case, the present complaint has been filed by Sh. Neeraj Garg, Superintendent of Customs, IGI Airport, New Delhi in discharge of his officials duties. On 24/25.3.2011 from the possession of one Sanjay Nangia video cameras were seized and inquiries initiated under CC no 76/1/2012 Customs Vs. Kishore Kumar Page 2 of 7 Section 108 of the Customs Act, 1962. Complainant stated to be a competent officer for the purpose of inquiries under Section 108 of The Customs Act, 1962 and summoned the accused vide summon dated 29.3.2011 issued by the complainant for his (accused) appearance on 30.3.2011, another summons dated 03.4.2011 issued by the Sh. Uman Chopra for his (accused) appearance on 04.4.2011 and another summons dated 07.4.2011 issued by the complainant for his (accused ) appearance on 09.4.2011. The said summons could not be served upon the accused at his premises since it was found locked, therefore, it was pasted upon his premises and proper panchanamas were also drawn to this effect by the Customs officers but despite the same accused did not appear or explained the reasons of his absence.
Thereafter, the department confirmed address of the accused from his employer and also obtained his second address, on which summon dated 07.4.2011 for his appearance on 09.4.2011 was issued, again the premises was found locked and on visiting the second address of the accused for the purpose of service of one Kaushal Kumar claiming to be cousin brother of accused met and he refused to accept the summons on account that accused is not residing at the said address.
2. In view of the evidence of non his appearance, the present complaint has bee filed for the offence punishable under Section 172/174/175 IPC read with Section 108 of The Customs Act, 1962.
3. On 17.10.2012 after hearing arguments, notice was framed against the accused under Section 172/174/175 IPC and he pleaded not guilty.
4. To prove its case the prosecution examined total three witnesses. CC no 76/1/2012 Customs Vs. Kishore Kumar Page 3 of 7
5. PW-1 Sh. Uman Chopra deposed that he issued issued summons dated 03.4.2011 to accused for his appearance on 04.4.2011 and summons was handed over to Parvesh Kumar, Air Customs Officer. Copy of the summons has been proved as Ex.PW1/A and panchnama drawn with respect to the pasting of summons is dated 03.4.2011.
PW-2 Sh. Neeraj Garg, Superintendent, Customs, New Delhi is the complainant and proved the complaint Ex.PW2/A and he stated that the accused failed to join the investigation in connection with inquiry in case of recovery of video cameras and summon Ex.PW2/B dated 29.3.2011 was issued to him and the said summons was handed over to the officer on duty and the concerned officer pasted the summons on the premises of accused and prepared the panchnama Ex.PW2/C. He further stated that another summons dated 07.4.2011 is Ex.PW2/D issued to the accused and report regarding the same submitted by Sharmender Chhabra is Ex.PW2/E. PW-3 Rahul Juneja is the witness to the panchnama proceedings and identified his signatures at point A.
6. The accused in his statement under section 313 Cr.PC he stated that he went to Dehradun on 24.3.2011 and came back on 26.4.2011 and came to Delhi only for a day during third week of April, to sign affidavit and other documents. He further stated that no summons was served upon him and he himself appeared before the concerned authority and there is no disobedience of the summons. He further stated that he appeared before the concerned Customs officers for at least seven times and he already exonerated CC no 76/1/2012 Customs Vs. Kishore Kumar Page 4 of 7 by the Commission of Customs (Appeals), New Delhi.
In his statement under Section 313 Cr.P.C the accused preferred not to lead defence evidence.
7. Arguments heard and record perused.
8. In the present case, offence alleged against the accused under Section 172/174/175 of IPC. As per Section 172 a public person can issue summons only if he is legally competent and so far question of legal competency is concerned Section 108 of The Customs Act, 1962 that says "any Gazetted officer of Customs 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 in this Act." It means to qualify the condition of Section 172 IPC the person must be a Gazetted Officer of Customs and in the present case as per the case of the complainant several summons were issued by the complainant, one is issued by Sh. Uman Chopra and another by Sh. Neeraj Garg but no where in its evidence complainant has proved this fact whether these officers who issued summons were actually the Gazetted officer in terms of Section 108 of The Customs Act, 1962. It is unclear from the evidence of the complainant that the said issuing officer are public servant legally competent to issue summons. Mere writing in the summons or in the complaint that the said officer is empowered under Section 108 of The Customs Act, 1962 to issue summons is not sufficient. To prove competency before the Court complainant was required to bring some documents or notification to establish the competency of the officer.
CC no 76/1/2012 Customs Vs. Kishore Kumar Page 5 of 7
In the cross examination of PW-2 it was observed by the ld. Predecessor that Panchnama proved Ex.PW2/C is not proved by the person who prepared the same and it is a well established law that only executant or author of a document can prove the same and so far as other Panchanama dated 07.4.2011 Ex.PW2/E is concerned, the same is not proved by the officer who prepared it.
PW-1 also stated about the Panchanama regarding summons dated 03.4.2011 Ex.PW1/A that the same was prepared by one Parvesh Kumar but no such person is examined to prove the Panchanma, even Panchanama of that date is not come under the evidence.
So far as witness Sh. Rahul Juneja is concerned in his cross examination he stated that some paper was got signed by the officers of Customs, he is not aware of the contents of the documents Ex.PW2/C but he has only identified his signatures on the same. He is not sure whether it was pasted on the gate or wall of the premises of the accused. It is not proved that that the officer who issued the summons was competent person to issue the same. It is also not proved whether summons were actually pasted on the premises of the accused since Panchnama remained unproved and the witnesses of the Panchnama is also not confident about the proceedings.
9. All these facts and circumstances and evidence adduced by complainant of the case creates doubt against its genuineness. Prosecution is required to prove its case beyond reasonable doubts to secure conviction.
CC no 76/1/2012 Customs Vs. Kishore Kumar Page 6 of 7
In view of this the case of prosecution not proved and the accused Kishore Kumar is entitled to acquittal in the present case . Hence, accused is acquitted from the charges under Section 172/174/175 IPC.
File be consigned to Record Room.
Announced in the open court on: 20.02.2014 (Sanjay Khanagwal) Chief Metropolitan Magistrate, Patiala House Courts, New Delhi 20.02.2014 CC no 76/1/2012 Customs Vs. Kishore Kumar Page 7 of 7