Delhi District Court
Complainant vs Shri Prit Pal Singh on 11 June, 2010
1
IN THE COURT OF Ms. GEETANJLI GOEL, MM, NEW DELHI.
CC.No.1299/3
DATE OF INSTITUTION: 30.04.2009
DATE RESERVED FOR
JUDGMENT :28.05.2010 DATE OF JUDGMENT : 11.06.2010 IN THE MATTER OF:
SHRI C.B. SINGH SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE NEW DELHI COMPLAINANT VERSUS SHRI PRIT PAL SINGH D-15/83, SECTOR 7 ROHINI DELHI - 110085 ACCUSED JUDGMENT
1. The present is a complaint filed by the complainant in discharge of his official duties against the accused on the averments that the complainant is a competent person as required under Section 108 of the Customs Act, 1962.
2. It is averred that the officers of Directorate of Revenue Intelligence were investigating cases of mis-declaration in the imports of worn clothing/ electronic goods/ electrical goods in the garb of assorted printed books leading to substantial evasion of Customs duty. In the said connection the accused was summoned. The complainant, a competent officer, vide summons dated 12.2.2009 summoned the accused for his appearance on 16.2.2009. The said summons were received by the daughter of the accused. However instead of appearing for enquiry the accused sent a 2 letter stating therein that due to death in his family he had to rush to Punjab and may be busy for a fortnight in Amritsar for social formalities and requested for another date after 15 days. It is averred that in the said circumstances the complainant issued yet another summons dated 20.2.2009 for the appearance of the accused on 25.2.2009.
The said summons were sent through speed post which had not been received back from the postal authorities presuming thereby that the same had been served upon the accused. However neither the accused appeared nor explained his absence.
3. It is averred that the complainant issued yet another summons dated 4.3.2009 for the appearance of the accused on 9.3.2009. The said summons were also sent through speed post which had been served upon the accused as was evident from the reply of the accused dated 6.3.2009 stating therein that due to hypertension he was under treatment and sent the certificate of doctor and requested for 15 days time. The complainant issued yet another summons dated 12.3.2009 for the appearance of the accused on 19.3.2009. The said summons were sent through speed post which had been duly served upon the accused as was evident from the letter dated 17.3.2009 of the accused stating therein that he was under medical treatment and yet had not fully recovered to attend on the date and requested to forgive his absence for another 15 days. The complainant issued yet another summons dated 19.3.2009 for the appearance of the accused on 25.3.2009. The said summons were sent through speed post which had not been received back presuming thereby that the same had been served upon the accused. However the accused again failed to appear.
4. It is averred that the complainant issued yet another summons dated 26.3.2009 for the appearance of the accused on 3.4.2009. The said summons were sent through speed post which had been received back from the post with the remarks 3 'despite repeated visits, the addressee was not available'. The complainant issued yet another summons dated 13.4.2009 for the appearance of the accused on 21.4.2009. The said summons were sent through speed post which had not been received back presuming thereby that the same had been served upon the accused. However the accused again failed to appear. It is averred that from the said facts it was clear that the accused had not appeared for enquiries under Section 108 of the Customs Act, 1962 despite service of summons upon the adult members of the family and/ or upon the accused issued by the public servant legally competent to do so.
5. The accused was summoned for the offence under Section 174 IPC vide order dated 14.5.2009. Thereafter the accused appeared before the court and was admitted to bail. Vide order dated 29.10.2009 notice under Section 251 Cr.P.C. for the offence under Section 174 IPC was served on the accused to which the accused pleaded not guilty and claimed trial.
6. On behalf of the complainant Shri C.B. Singh appeared as PW1 and deposed that the present complaint was filed by him Ex.PW1/A on the allegations that the summons u/s 108 of the Customs Act were issued by him which were delivered upon the daughter of the accused. Despite the service of the summons, the accused had not appeared but sent a letter. He again issued the summons dated 20.2.2009 which was sent through Speed Post and the same was not returned from the Postal Authorities. He again issued the summons dated 4.3.2009 for the appearance of the accused which was sent through speed post but the accused did not appear before the department to join the inquiry and sent a letter requesting issuance of another summons. He again issued summons for the appearance of the accused to join inquiries which was also sent through speed post but the accused did not appear 4 before the department and sent a letter without any enclosure to support the plea taken in the letter. He again issued summons dated 19.3.2009 for the appearance of the accused to join inquiries and it was also sent through speed post which was not returned by the postal authorities and the accused did not appear. He again issued the summons dated 26.3.2009 for the appearance of the accused on 3.4.2009 before the competent officer of the department and the same was also sent through speed post which was returned back by the postal authorities with the remark mentioned on the envelope. He again issued the summon dated 13.4.2009 for the appearance of the accused to join inquiries for his appearance on 21.4.2009 which was also sent through speed post which was not returned back by the postal authorities. Despite the service of the summons Ex.PW1/B1 to B7, the envelope returned by the Postal Authorities is Ex.PW1/C, the copies of the speed post booking list for sending the summons are collectively marked A, the accused did not appear before the competent officer to join the inquiries and he stated that he was competent for issuing the summons u/s 108 of the Customs Act. He stated that the present complaint had been filed by him in discharge of his official duty.
7. After prosecution evidence was led statement of the accused was recorded under Section 313 Cr.P.C. wherein all the incriminating material existing on record including exhibited documents were put to the accused to which the stand of the accused was of general denial. He stated that he had never been served any summons issued by the investigating agency. As and when the summons were given to his wife or to his daughter, they appeared with sufficient evidence showing about his illness and he never avoided intentionally to appear before the investigating agency. He stated that 5 he did give response to the summons dated 4.3.2009 and he sent a request letter on 6.3.2009 as he was sick and he also sent a certificate. He was never served with any summons issued by the investigating agency personally. He never received any summons either by registered post or by speed post or by any other postal mode. The investigating agency in fact manufactured false evidence against him and filed the present case against him. He stated that he had every respect and honour for the process of law. He undertook to abide by all the orders issued by the Court as well as by the investigating agency. He stated that he had otherwise not violated any process of law and always honoured the same issued either by investigating agency or by the Court. I had also sent a request letter on 14.2.2009 to the investigating agency. He had otherwise replied to all the letters received by his wife or his daughter. He stated that it is a false case. He stated that the witness is an interested witness and in order to support his department, he had given a false statement. He stated that he is innocent. He had not avoided any service of the summons on him. As and when the summons were served on his wife or his daughter, the same was duly replied and the department was duly informed for his non-appearance. He had never been served with any summons from DRI personally. However the accused has not led any evidence in defence.
8. I have heard the learned counsel for the complainant and the accused and perused the record. The learned counsel for the complainant has argued that the summons were duly served on the accused several times but the accused failed to 6 appear before the concerned officer and the accused is guilty of the offence under Section 174 IPC. The accused had sent letters admitting that he had received the summons. The summons were once received by his daughter and it cannot be said that there was no service. He sent the reply that he was unwell so clearly he was served. It is argued that there is presumption of service if the envelope was not returned. It is argued that offence under Section 172 IPC was also made out against the accused. It is argued that the accused himself had sent letters which meant that he was served and he had deliberately avoided to appear before the authorities.
9. The learned counsel for the accused has argued that the present is a complaint by DRI that the accused intentionally avoided to appear. Reference is made to Section 62(2) Cr.P.C. on how process is to be served. The complainant had admitted that the accused was not served personally and the summons were not even affixed. The postal authorities were not produced in the witness box. One summon was served and the accused requested for 15 days but the complainant did not wait. It is argued that the service through speed post was not proved. Whenever the summons were received the accused sent a request so he was not a defaulter. It is argued that the complainant had filed a false complaint to put pressure on the accused.
10. At the outset it is the contention of the learned counsel for the accused that the summons were not issued by a competent officer. During cross-examination CW1 stated that the inquiry of the present case was assigned to him on 3.1.2009. He was working as Senior Intelligence Officer at that point of time. He denied the suggestion that he was not having power to issue the summons to the accused. The accused has not produced anything to show that CW1 is not Senior Intelligence Officer. Section 108 of the Customs Act 1962 provides that: 7
"any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary ...."
11. There is no dispute that the summons were issued by CW1 the Senior Intelligence Officer and CW1 also stated so during cross-examination. As Senior Intelligence Officer he was authorized to issue summons under Section 108 of the Customs Act as he was a Gazetted Officer and as such there cannot be any dispute that CW1 had powers or authority to issue summons under the said Section.
12. In the instant case summons were sent seven times. The first time the summons were received by the daughter of the accused upon which the accused sent a letter stating about death in his family; on the second occasion the summons were sent through speed post which had not been received back from the postal authorities; on the third occasion the summons were sent through speed post which were served upon the accused as he also sent reply dated 6.3.2009 stating about being unwell; on the fourth occasion the summons were sent through speed post which were served upon the accused as he sent a letter dated 17.3.2009 stating that he was under medical treatment; on the fifth occasion the summons were sent through speed post which had not been received back; on the sixth occasion the summons were sent through speed post which had been received back from postal authorities with remarks; and on the seventh occasion the summons were sent through speed post which had not been received back.
13. During cross-examination CW1 admitted that which ever summons were sent or issued had never been served personally on the accused. He had never deputed 8 any of his staff to get the accused personally served with the summons of the inquiry vol. he had visited the house of the accused once and thereafter the process was sent by speed post. He admitted that he had sent the summons by speed post and out of that summons one envelope was received back with the remark that the 'accused is not available in the house' and he had not obtained any certificate from the postal authorities justifying the said remarks given by the postal authorities. He admitted that they had not verified the contents given in the letter sent by the accused. He had not affixed the summons outside the premises of the accused. He admitted that he had only filed the postal receipts in respect of five envelopes sent by the speed post but he had not filed any certificate obtained from the postal authorities verifying about the service of the said 5 envelopes sent through speed post. He denied the suggestion that the accused had never been served with those envelopes. He denied the suggestion that he had filed a false and frivolous complaint in order to pressurize the accused so that he may come under their pressure.
14. CW1 admitted that the accused did make response to the summons dated 4.3.2009 whereby he was directed to appear on 9.3.2009 and the accused sent a request letter on 6.3.2009 showing his non-availability for non appearance on 9.3.2009 because of his sickness and he also sent a certificate. He admitted that the certificate of doctor sent by accused with a request letter dated 6.3.2009 was not got verified by him from the concerned doctor. He admitted that he without waiting for 15 days as requested by accused vide letter dated 6.3.2009 supported by a certificate of doctors did not wait for 15 days and again issued summons on 12.3.2009 giving directions to accused to appear on 19.3.2009. He denied the suggestion that no summons on 19.3.2009 were sent through speed post or that that the said summons were not served on the accused or that he presumed the service on the accused 9 wrongly. He denied the suggestion that no summons were sent on 26.3.2009 by speed post or that no summons were sent on 13.4.2009 through speed post or that he had cooked up the story of his own as alleged in his statement on that day in order to create pressure on the accused. He denied the suggestion that he was not having power to issue the summons to the accused. He denied the suggestion that the summons were never sent through the speed post. He had seen letter dated 6.3.2009 and it was the same which was received by him and is Ex.PW1/DX1 and the same was his reply to the letter dated 17.3.2009 sent by accused to him in response to the summons Ex.PW1/DX2. He stated that he had also seen letter dated 14.2.2009 which was sent by accused to him for postponement of inquiry to some other date and the same is Ex.PW1/DX3. He admitted that he had not gone personally to get the envelopes of the speed post dispatched from the post office. He denied the suggestion that he had framed the accused in the present case by concocting a false story against him. He denied the suggestion that accused was not having any intention to appear before him during the course of inquiry being conducted by him.
15. Thus CW1 admitted that which ever summons were sent or issued had never been served personally on the accused and he had never deputed any of his staff to get the accused personally served with the summons of the inquiry. He volunteered that he had visited the house of the accused once and thereafter the process was sent by speed post. Thus on one occasion CW1 had visited the house of the accused and thereafter on 6 occasions the summons were sent through speed post and no staff had gone to personally serve the accused. It was argued on behalf of the accused that service is to be effected in terms of Section 62 Cr.P.C. i.e. personally but Section 62(2) uses the words 'the summons shall, if practicable, be served personally on the person summoned' and as such it is not essential that the accused be served in each 10 case personally. Other modes of service are also prescribed under Sections 64 to 69 of Cr.P.C. CW1 stated that he had not affixed the summons outside the premises of the accused as is provided under Section 65 Cr.P.C. but service by other modes is also prescribed. CW1 had admitted that once the envelope was received back with the remark that the 'accused is not available in the house' and the said envelope has been placed on record. It is true that the complainant had not obtained any certificate from the postal authorities justifying the said remarks given by the postal authorities. However the endorsement of the postal authorities was there.
16. Regarding the other five occasions CW1 admitted that he had only filed the postal receipts in respect of five envelopes sent by the speed post but he had not filed any certificate obtained from the postal authorities verifying about the service of the said 5 envelopes sent through speed post. It is seen that on two occasions reply was received from the accused whereas on other 3 occasions the envelope was not received back nor any certificate was obtained from the postal authorities verifying about the service. The learned counsel for the complainant had argued that once the envelope was not received back there was presumption of service. While that may be so ordinarily but where an offence would be made out on the basis that the accused had not appeared in response to the summons there would be requirement of something more than merely raising a presumption and it was incumbent on the complainant to produce evidence to the effect whether the summons were indeed served on the accused or not. As such the summons dated 20.2.2009 for appearance on 25.2.2009; summons dated 19.3.2009 for appearance on 25.3.2009 and summons dated 13.4.2009 for appearance on 11 21.4.2009 cannot be said to be served on the accused. Thus on 3 occasions the summons were clearly not served on the accused and in respect of one occasion the endorsement of the postal authorities was there on the envelope.
17. On 3 other occasions reply was sent by the accused. On the very first occasion the summons were served on the daughter of the accused. It was contended on behalf of the accused that in terms of Section 64 Cr.P.C. the service has to be on an adult male member whereas the service was on the daughter and as such it cannot be said to be due service. However the accused had sent a reply stating that there was a death in the family. CW1 had admitted that they had not verified the contents given in the letter sent by the accused. But nothing much turns on the same as the fact remains that the accused had not appeared even after the expiry of 15 days. It is true that the second summons were sent before the expiry of 15 days which were not received back but the third summons were sent only on 4.3.2009 that is much after the expiry of 15 days from the first summons but the accused chose not to appear before the authorities. It is not in dispute that the accused did make response to the summons dated 4.3.2009 and sent a request letter on 6.3.2009 showing his non-availability because of his sickness and he also sent a certificate. It is true that the said certificate was not got verified by CW1 but that is neither here nor there as it is not the case of the accused that he had appeared before the authorities subsequently. It may be mentioned that the letter dated 6.3.2009 was sent from Delhi whereas the medical certificate which 12 was attached and dated 5.3.2009 was of Civil Hospital Patti (Tarn Taran) and advised bed rest for only 7 days. If the accused was indeed in need of bed rest he could not have traveled from Tarn Taran to Delhi while the office of the complainant where he was called for inquiry was in Delhi itself. Further the medical certificate advised bed rest for 7 days and the accused himself wrote 15 days in the request letter which showed that he was avoiding to appear.
18. CW1 admitted that he without waiting for 15 days as requested by accused vide letter dated 6.3.2009 again issued summons on 12.3.2009 giving directions to accused to appear on 19.3.2009. However it is pertinent that 19.3.2009 was at least 13 days after the letter of the accused but again it is not the case of the accused that he did appear before the authorities on the expiry of 15 days and the medical certificate advised rest for 7 days and 19.3.2009 was after seven days from 5.3.2009. Even the complainant did not lodge any case against the accused immediately but issued yet another summons dated 19.3.2009 for the appearance of the accused on 25.3.2009. The said summons were not received back but it is not the case of the accused that after expiry of 15 days from 6.3.2009 he contacted the authorities himself and appeared before the authorities. In fact the accused chose to send another letter dated 17.3.2009 stating therein that he was under medical treatment and had not yet fully recovered but did not annex any medical certificate. He had again requested for 15 days. There is no documentary evidence to support the same. According to the complainant they had sent 13 another summons on 26.3.2009 for appearance of the accused on 3.4.2009 which was returned with the remarks of the addressee being not available and further summons were sent on 13.4.2009. A suggestion was put to CW1 that no summons were sent through speed post but it is not in dispute that the accused had sent letters dated 6.3.2009 and 17.3.2009 which would clearly be in response to some summons. Further CW1 admitted that he had not gone personally to get the envelopes of the speed post dispatched from the post office but that is not significant as the letters of the accused dated 6.3.2009 and 17.3.2009 are on record.
19. It is thus seen that on 3 occasions out of 7 it cannot be said that the accused was served in absence of any cogent evidence in that regard and on another occasion the envelope was received back with the remarks 'despite repeated visits, the addressee was not available'. On one occasion the summons were served on the daughter of the accused and while the said service may not be in accordance with provisions of Cr.P.C. but the accused himself had sent request letter pursuant to the same. On two occasions i.e. summons dated 4.3.2009 for appearance on 9.3.2009 and summons dated 12.3.2009 for the appearance on 19.3.2009 were duly served upon the accused in response to which again he sent request letters. It was argued on behalf of the accused that as request letters were sent by the accused sufficient time ought to have been given to him to attend and he cannot be said to be a defaulter but the accused could not have kept buying time and avoiding to appear moreso as 14 the medical certificate advised bed rest only for seven days. Thus on 19.3.2009 the accused deliberately remained absent in spite of sufficient notice. As such out of seven notices, at least in case of one the accused had disobeyed the direction under Section 108 of the Customs Act given to him and he willfully avoided to attend.
20. In view of the above discussion the complainant has proved its case against the accused beyond reasonable doubt. Accordingly the accused is convicted for the offence under Section 174 IPC.
To come up for arguments on the point of sentence on
Announced in open court
On this 11th day of June 2010 (GEETANJLI GOEL)
MM, NEW DELHI
15
IN THE COURT OF Ms. GEETANJLI GOEL, MM, NEW DELHI.
CC.No.1299/3
SHRI C.B. SINGH
SENIOR INTELLIGENCE OFFICER
DIRECTORATE OF REVENUE
INTELLIGENCE
NEW DELHI
COMPLAINANT
VERSUS
SHRI PRIT PAL SINGH
D-15/83, SECTOR 7
ROHINI
DELHI - 110085 ACCUSED
ORDER ON SENTENCE:
Present: Convict in person
None for complainant.
I have heard the convict on the point of sentence.
The convict has prayed for a lenient view to be taken and has prayed for being released on probation. The convict has submitted that he has already remained in JC for more than one month.
I have given my thoughtful consideration to the submissions made by the convict. Looking to the nature of offence the present is not a fit case to release the convict on probation. The convict has already remained in custody in this case for 10 days. On the basis of the material on record the convict is given the benefit of Section 428 Cr.P.C. and sentenced to the period already undergone by him during the trial of the case.
16
Copy of the order on sentence be supplied to the convict free of cost immediately. File be consigned to record room.
Announced in open court
On 11th June, 2010 GEETANJLI GOEL
MM, NEW DELHI.