Delhi District Court
Dri vs . Mohd. Jamil @ Wasim @ Bhura on 28 October, 2020
IN THE COURT OF SH. PAWAN SINGH RAJAWAT,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 39144/16
U/s : 132/135(1)(a) Customs Act, 1962
DRI Vs. Mohd. Jamil @ Wasim @ Bhura
Date of institution of case : 07.11.2007
Date of reserving the judgment : 28.10.2020
Date of pronouncement of judgment : 28.10.2020
JUDGMENT
1. S. No. of the Case : 152/1/07
2. Date of Commission of Offence : 28.02.2007
3. Name of the complainant : Sh. Jyothimon Dethan
Intelligence Officer
Directorate of Revenue
Intelligence
New Delhi.
4. Name,parentage : Mohd. Jamil @ Wasim @
& address of accused Bhura
S/o Mohd. Ibrahim
R/o. 214, Mohalla
Madarasa Sadat, near
Sikander Gate Police
chowki, Purana Bazar
Hapur, Distt. Ghazaibad,
U.P.
5. Offence complained of : u/s 135(1)(b)
Customs Act, 1962
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 1/29
Case of the Complainant
1. The brief facts of the case are that accused Mohd. Jamil is concerned in smuggling and dealing with 2000 numbers of Rs. 500/- denomination of Fake Indian Currency Note (FICN) with the total face value of Rs. 10 lacs which were recovered from a lady passenger Mrs. Laiqan arriving from Lahore to Delhi by PIA Flight No. PK-270 on 28.02.2006 and thereby committed offence punishable u/s 135(1)(b) Customs Act, 1962.
2. Cognizance of the offence was taken on 20.12.2007 and after supplying with the copies of complaint and matter was adjourned for pre charge evidence. After hearing arguments on the basis of pre-charge evidence led by the complainant the charge u/s 135(1)(b) of the Customs Act, 1962 was be framed by Ld Predecessor on 11.10.2012 against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case complainant examined 21 witnesses namely Sh. B.K. Banerjee as PW-1, Sh. Jyotimon Dethan Intelligence officer, DRI as PW-2, Sh. S.D. Sharma Intelligence Officer, DRI as PW-3, Sh. D.P. Saxena as PW-4, Insp. Ramesh Lamba as PW-5, Sh. Alok Aggarwal OSD Customs as PW-6, Sh. D.B. Shrma, Superintendent, Central Excise as PW-7, Sh. R.K. Singh Nodal Officer Bharti Airtel as PW-8, Sh. Amarnath Singh Nodal Officer Idea Cellular Ltd. as PW-9, Ms. Poonam Aggarwal Sr. Tax Assistant as PW-10, Sh. Satish as PW-11, Ms. Indu Grover Superintendent Central Excise Appeal as PW-12, Ram Kanwar Tax Assistant as PW-13, Sh. Sanjay as PW-14, Mohd. Sajid as PW-15, Mohd. Irfan Shakir as PW-16, Ms. Akila Begum CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 2/29 as PW-17, Sh. Soni as PW-18, Sh. Daya Chand LDC DRI as PW- 19, PW-20 Sh. Roshan Lal as PW-20 and Sh. Rajeev Kumar Sharma Superintendent Customs & Central Excise as PW-21.
4. PW1 stated that during the year 2007 he was posted as Appraiser in DIR Headquarters and during the course of investigation in the seizure of fake Indian currency of face value of Rs. 10 lacs by DRI, he issued summons to Ms. Liaqan (accused in case of DRI Vs. Liaqan & Ors.), Shan Mohd and Liquat Ali who tendered their voluntarily statements U/s 108 of the Customs Act before him. He further stated that during the course of investigation Shah Mohd. stated in his statement that he. was working for accused Bhura in further distribution of fake Indian currency and accused Bhura was arrested subsequently by Delhi Police special Cell in connection with the seizure of fake Indian currency of Rs. 33 lacs. PW-1 also stated that accused Bhura tendered himself his voluntarily statement U/s 108 of Customs Act in his presence which was reduced in writing by Sh. Ram Kanwar, Tax Assistant and accused identified the photographs of accused Shan Mohd. Witness correctly identified the accused in the Court. He then proved photocopies of various documents which are Ex. PW- 1/A to Ex. PW-1/Y. He also stated about recording statement of Mohd. Sajid of M/s Sajid Tours and Travels Ex. PW1/S. During cross examination he stated that he issued summon to accused Liaqan at IGI Airport at around 11.15/11.30 pm and at that time there were two other persons namely Shan Mohd. And Liaqat Ali were present alongwth DRI Officers. He also stated that he was informed by the IO that there was a seizure of fake currency at the airport. He also stated that he had taken only summon book to the airport CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 3/29 which was issued from the department in his name. He further stated that he had recorded the statement of Liaqan but she was not detained by the DRI officers and was also not in their custody. He also stated that Liaqan appeared before him in response to summons on 01.03.07 at 12.15 am at DRI office, I.P. Bhawan, I.P. Estate and after taking some rest she again appeared at about 6.00 am on 01.03.07. He also stated that he also issued summons to Shan Mohd. and accused Shan Mohd. appeared before him in DRI office at 9.30 am on 01.03.07. He denied the suggestion that the thumb impression of Liaqan was taken on blank papers and that Jothimon was present alongwith his service revolver at the time of recording the statement of Shan Mohd. He also denied the suggestion that the statement of Shan Mohd. was recorded at the gun point or it was no voluntary and that he had recorded the statement of Liaqan and Shan Mohd. according to the wishes of the IO. During further cross examination he stated that he was not present at the time of seizure of fake Indian currency. He denied the suggestion that statement of Smt. Liaquan was taken on blank papers and that she was forced to put thumb impression on blank papers. He also denied that he forced Shan Mohd. to make an involuntary statement. He admitted that accused Mohd. Jamil was in judicial custody when his statement was recorded. He denied that since accused Jamil was in custody, he was forced to sign some blank papers, which were filled up later on by concerned DRI officials. He volunteered that accused Mohd. Jameel refused to sign the last page of his statement.
5. PW-2 stated that during the relevant year 2007 he was working as Intelligence Officer in DRI Head Quarter, New Delhi CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 4/29 and after completion of investigation relating to seizure of Indian fake currency of face value of Rs. 10,00,000/- on 28.02.2007 at IGI Airport, he placed all the relevant documents of the case file before Sh. Ajay Jain, Addl. Director General DRI, Headquarters who after going through the case file accorded sanction and authorization for prosecution of accused Mohd. Jamil for offence punishable U/s 135(1)(a) & 135(1)(b) of Customs Act . He further stated that on the basis of sanction he filed the present complaint Ex. PW-2/A alongwith list of witnesses Ex. PW-2/B. He proved sanction and authorization as Ex. PW-2/C & list of documents as PW-2/D. He further deposed that after completion of investigation, accused was arrested vide memo Ex. PW-2/E. During cross examination, he stated that he was the member of raiding party but admitted she didn't sign the seizure memo.. He denied that he was not present at the time of seizing of the case property of Case CC No. 58/1/07 titled as DRI Vs. Liaqan. On asking specific question he stated that he had not placed the documents/case file to Sh. Ajay Jain personally but the case file moved through all the senior officers. During further cross examination he stated that the sanction was not accorded in his presence. He also stated that he prepared the complaint Ex. PW-2/A on the basis of documents annexed with the complaint and sanction/authorization. He denied that he had made a false complaint against the accused as per the directions of his officials as he had not received any document/file. He admitted complaint was prepared on the basis of statement given by Shan MOhd Ex. Pw2/DA He admitted that they had mobile number of accused Mohd. Jamil @ Bhura @ Wasim on 01.03.07 but he personally not verified the address of the CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 5/29 accused Mohd. Jamil @ Bhura @ Wasim. He also admitted that he had not made any efforts to put the number 9891010537 for surveillance to trace out the whereabouts of accused Mohd. Jamil @ Bhura. HE denied that no statement of accused Shan MOhd. was recorded on 01.03.2007. He denied that the document Ex. PW-2/DA was a false document just to implicate the accused in this case. He further stated that Sh. B.K. Banerjee Appriser DRI recorded the statement of accused Mohd. Jamil @ Bhura @ Wasim and he was not present when the statement u/s 108 Customs Act was recorded. He also stated that sanction of arrest of accused Mohd. Jamil was not accorded in his presence by Sh. Ajay Jain Addl. Director General. He denied that he was deposing falsely at the instance of his Sr. Officers and that he prepared a false complaint against the accused. This witness was not further cross examined in post-charge evidence.
PW-3 stated that he was briefed with the Intelligence received by the department and was directed to take necessary action in pursuance of the information. He then deposed about the apprehension of lady passenger Liaqan with Fake Indian Currency Notes in her baggage. He also stated about the seizure of such FICN kept in cardbox and from possession of Liaqan her arrest alongwith Shan Mohd after recording their statements vide Ex. PW3/A, PW3/A1 to PW3/A15 PW3/C to PW3/I. He identified the alleged FICN recovered from Liaqan as Ex.P1 to P8 He also stated about sending the case property for expert opinion as well as search conducted at the residential premises of the accused persons. He identified both the accused and the case property. During cross examination he stated that the witnesses were called CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 6/29 from the airport and he does not know whether Universal Aviation is a company or Airlines or providing any services at the Airport. He also stated that he was not present at the time of recording of statement of accused Mohd. Jamil and he also do not know that nothing incriminating was recovered from the possession of Mohd. Jamil. He denied that nothing incriminating was recovered from Liaqan and Shan Mohd. This witness was not further cross examined in post-charge evidence.
6. PW-4 stated that in the year 2007 he was posted as Intelligence Officer, DRI, Head Quarters, New Delhi and on 02.03.2007 on the direction of Sh. Alok Aggarwal, the then Assistant Director, DRI, New Delhi, he deposited the case property i.e. 2 steel trunks duly sealed with the seal of DRI containing a fake Indian Currency Notes having face value of Rs. 10 lacs and concealing materials with the incharge, Valuable Godown, New Customs House, New Delhi in intact condition against an acknowledgement on the inventory/deposit memo Ex. PW-4/A. He also stated that during the time the case property remained with him, it was not tampered by anyone.
During cross examination in post charge evidence, he stated that he was not present at the time of seizure of Fake Indian Currency Notes and he had only deposited the same as per memo Ex. PW-4/A.
7. PW-5 stated that in the year 2007 he was posted as Inspector in Special Cell Lodhi Colony and he was the IO of the case FIR No. 52/07 PS Special Cell in which FICN worth Rs. 33 lacs were seized by him from accused Mohd. Jamil @ Wasim @ Bhura CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 7/29 and his associates Nadeem @ Nayeem and Mohd. Muslim. He also stated that sometime in July 2007 a letter Mark-A & Mark- A1 was received from Sh. Alok Aggarwal, Asstt. Director DRI to provide requisite documents and information of accused Mohd. Jamil and in response he sent photograph of Mohd. Jamil and his two disclosure statements made before him during investigation to the DCP office of Special Cell from where the same was forwarded to Sh. Alok Aggawal vide letter Mark-B. He also stated that letter Mark-C was sent by the then DCP Alok Kumar to Sh. Alok Aggarwal Asstt. Director, DRI furnishing information regarding the three accused persons in FIR No. 52/07 PS Special Cell,including arrest of accused Mohd. Jamil.
During cross examination he denied that nothing incriminating was recovered from the accused or that he has falsely implicated the accused. This witness was not further cross examined in post-charge evidence.
8. PW-6 stated that at relevant time he was posted as Asstt. Director DRI Head Quarters, Delhi at the relevant period. He stated about the investigation and the documents prepared with respect to accused Liaqan and Shan Mohd. He proved documents Mark-A to Mark-J. He also stated that he had also written a letter dt. 03.07.2007 Mark-K to Sh. Alok Kumar, Dy. Commissioner of Police, Special Cell, Lodhi Road to forward the details of case booked by them in respect of accused Jamil @ Wasim @ Bhura and therefore he got transferred and further investigation was supervised by his successor.
During cross examination he denied that he had falsely implicated accused Mohd. Jamil and that nothing incriminating was recovered from accused Mohd. Jamil. This witness was not CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 8/29 further cross examined in post-charge evidence.
9. PW-7 stated that at the relevant period he was posted as Inspector Customs Preventive Commissionerate Disposal Unit/incharge Valuable godown, New Customs House near IGI Airport, New Delhi and on 02.03.07 as per directions of the then Asstt. Commissioner Sh. B.B. Batra, he had received two sealed steel boxes containing 2000 FICN of Rs. 500/- denomination each and cardboard carton, 117 pieces of crockery and cell phone packets vide inventory Ex. PW-5/A from Sh. D.P. Saxena IO Del, H.Q. and checked the seal in intact condition and same remained in safe custody in valuable godown in seal condition. This witness was not cross examined by the accused.
10. PW-8 stated that letter Mark-H dt. 29.03.2007 was written by Sh. Alok Aggarwal, Asstt. GI to Major Surender Singh, Nodal Officer who gave reply giving details of cell phone numbers 9897724429 & 9897234020 vide letter Mark- 8 and the details of the calls are Ex. PW-8/A. This witness was also not cross examined by the accused.
11. PW-9 stated that in pursuant to letter dt. 29.03.2007 written by Sh. Alok Aggarwal Asstt. Director GI to Sh. Pawan Singh Nodal Officer, the call details of cell no. 9990598359 & 9891010537 Ex. PW-9/A was provided vide letter Mark A-9. This witness was also not cross examined by the accused.
12. PW-10 stated that on 01.03.07 while she was posted as Tax Assistant at DRI HQ, New Delhi , Ms. CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 9/29 Liaqan approached her alongwith summons U/s 108 of the Customs Act dt. 28.02.2007 issued by Mr. B.K. Banerjee and requested her to reduce the same into writing her statement as she cannot write. She statement statement of liaqan is Ex. Pw1/F and letter for surrendering of passport Ex. PW-3/A, arrest memo PW-3/C and MLC of liaqan as PW3/O. She also stated that on 11.10.2007 Ms. Akila Begum also approached her alongwith the summons U/s 108 Customs Act and requested her to reduce her statement Ex. PW-1/O into writing. During cross examination she stated that she wrote the statement of accused Liaqan on 01.03.07 and denied that no summons were issued to Smt. Liaqan and that she had not requested her to write her statement. She also stated that it took about 3-4 hours to write the statement of accused Smt. Liaqan. She denied that nothing incriminating was recovered from the accused Smt. Liaqan and that she never wrote the statement given by accused Liaqan and wrote statement as directed by DRI officers.
13. PW-11 stated that he was working as a helper with Universal Aviation Service Pvt. Ltd. and on the date of incident, he was working in Arrival hall of IGI Airport, Terminal II, New Delhi and was on duty on Pakistan Flight which was scheduled to arrive from Pakistan. He further stated that he removed the baggage of an old lady from the conveyor belt and put the same in the trolley and while he was going towards the exit gate alongwith the lady and her luggage, the custom officer who was standing stopped him and thereafter cut the two cartons from all the sides with a knife and bundle of notes fell down from the cartons. He also deposed that three/four officers checked the currency notes and the male person was locked up in a cell by the officials CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 10/29 and thereafter the officials prepared some documents in his presence which were signed by him He also identified his signatures in panchnama Ex. PW-3/A and annexures thereto Ex. PW-3/A-1 to PW-3/A-15. He also identified his signatures on Ex. P-3 and P-5.
14. During cross examination by Ld. SPP for the department, PW-11 stated that officers had contacted him to witness the proceedings and told him about the contents of the information when he reached the room alongwith the lady and her luggage. He denied that the information was given to him prior to the proceedings and that he was taking the luggage of that lady towards the exit gate. He also denied that the lady was identified by the officers of DRI at the time when she was collecting her baggage from the conveyor belt no. 3 of the arrival hall. He also denied that the lady cleared the green channel after depositing her gate pass. He also denied that the DRI officers intercepted the lady alongwith two young man. He also denied the suggestion that the DRI officials had asked the said lady whether she was carrying any FICN on her person for baggage which she replied in negative. He also denied that notice u/s 102 customs Act was served upon liaqan for search of her baggage. He admitted recovery of currency notes from checkin baggage of liaqan, but denied that those were FICN as same were checked by officers. He also denied that the lady with two young person were escorted to the Antl room of IGI Airport alogwith baggage of accused Liaqan. He further denied all the suggestions given by Ld. SPP and lastly admitted that all the FICN were taken into possession by the officers of Customs. The witness then identified his signatures on 3 baggage tags, air ticket alongwith 3 baggage stubs, custom CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 11/29 declaration form and passenger manifest available on the judicial file. He denied that the recovered currency notes were checked by the officers and the same were found fake. He stated that all the currency notes were seized and sealed by the officers. The witness also identified his signatures on Mark PW-11/A.
15. During cross examination by the accused, he stated that he cannot identify that lady if she appeared before him. He also stated that he was requested by the officers of customs at about 4.00-5.00 pm to become a witness after the lady was apprehended and taken to the room but denied that DRI officers told him about the information. He denied that nothing incriminating was recovered from the possession of the lady in his presence.
16. PW-12 stated that she was posted as Air Customs Officer, IGI Airport and on 28.02.2007 on receiving specific information, the DRI officer Sh. S.D. Sharma visited customs arrival hall and called two public witnesses from the nearby area. He also stated that the department had the information that a lady passenger was coming to Delhi from Lahore by Pakistan Airlines with FICN by concealing the same in her baggage. She also stated that the lady had met with two persons immediately after her exit from the airport. She also stated that the lady after collecting her baggage was going towards green channel and after that she met with two persons at the exit gate and thereafter, DRI officials apprehended the all the accused persons including accused Zameel and they were escorted to anti room of IGI Airport alongwith baggage of Liaqan. She further stated that she was present at that time CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 12/29 and service notice U/s 102 of Customs Act to accuse Liaqan. She then deposed about personal search of accused Liaqan and search of her baggage. She also stated that she was present at the time of panchnama proceedings and stated that the facts of the panchnama Ex. PW-3/A are true. This witness was not cross examined by the accused.
17. PW-13 stated that at the relevant period he was posted as Tax Assistant in DRI and on 26.03.2007 on the direction of Sh. S.K. Sharma the then SIO, he went alongwith Liaqat at building nearby Jama Masjid where in one room accused Zameel @ Bhura was residing and when he went to the room, he found the same was locked. He further stated that he frequently visited the said premises on 27.03.2007, 28.03.2007 & 29.03.2007 and the room on the building no. 3910 was found locked. He further stated that he again visited the said premises on 10.04.2007 and submitted the report Ex. PW-13/A in this regard to SIO Sh. S.K. Sharma. He also statement that on 16.08.2007, the statement of accused Zameel Ex. PW-1/J was recorded before Sh. B.K. Banerjee, the then Appraiser and the said statement was reduced into writing by him on the request of accused Mohd. Zameel. This witness was not cross examined by the accused.
18. PW-14 stated that on 28.02.2007 he was working as helper with Unviersal Aviation Services Pvt. Ltd. He then deposed about apprehension of accused Liaqan alongwith FICN which was concealed by her in her baggage and her meeting with the other two persons including accused Zameel near exit gate and detailed examination conducted at the anti room of IGI Airport. He stated liawan. He also stated that personal CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 13/29 search of the accused Liaqan was conducted by him but nothing incriminating was recovered from her personal possession but after the search of her baggage one cardboard having melamine dinner set "super"printed on it was recovered. He also stated that he was present during panchnama proceedings and the facts pf the panchnama Ex. PW-3/A are true to the best of his knowledge. This witness was not cross examined by the accused.
19. PW-15 stated that he was running a travel agency of M/s Sajid Tour & Travel and was proprietor of the firm and was working as sub agent and booking air tickets of IATA agents. He further stated that on 17.10.2007 he received summons Ex. PW1/S and appeared before Sh. B.K. Banerjee and tendered his voluntarily statement Ex. PW-1/T U/s 108 of Customs Act. He further stated that he also identified photo of Mr. Bhura Ex. PW-1/U who was his regular customer who purchased tickets eight times for Pakistan for different persons. He also stated that he had also booked air ticket on 31.01.2007 from Delhi to Lahore and Lahore to Delhi in the name of Liaqan, Akhila Begum through Mr. Bhura. He also stated that ticket of Ms. Liaqan and Akila Begum was collected by Shaan Mohd. after making cash payment. He further stated that he also sold sim cards and mobile phones to Mr. Bhura who submitted two application forms alongwith copies of passport of Vakila and Akhila Begum and therefore he issued two SIM cards to Mr. Bhura having numbers 9891010537 and 9990598359. He also stated that he had written a letter dt. 23.04.2007 Mark-1 to Addl. Director, DRI, New Delhi.
CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 14/29
20. During cross examination he stated that he does not remember the date when his statement was recorded but the same was recorded in the year 2007 and denied that he was forced to make a voluntary statement U/s 108 Customs Act. He also denied that Bhura never purchased any air tickets from him. He also stated that he does not know whether Bhura was known by some other name or not. He denied that he was deposing falsely to implicate Bhura.
21. PW-16 stated that during the relevant period he was working as Manager under ALMAS Travel Pvt. Ltd. and an inquiry was conducted regarding verification of AIR ticket no. 2142638277499 from Delhi to Lahore and Lahore to Delhi in the present case and he had written a letter Mark-A to Asstt. Director, DRI on 23.04.2007 informing that the said air ticket was issued on the instruction of sub agent M/s Sajid Tour & Travels, Jama Masjid, Delhi. During cross examination he denied that his agency had issued tickets for M/s Sajid Travels.
22. PW-17 stated that in the year 2007 she used to sell ice in summer days and stitch quilt in winter days and in the present case on receiving summon Ex. PW-1/O for 05.10.2007 she tendered her voluntary statement Ex. PW- 1/P before Sh. B.K. Banerjee which was reduced into writing by Ms. Poonam Aggarwal on his request. She also stated that during recording of her statement, Sh. B.K. Banerjee showed her form of passport in which her passport size photo and thumb impression were affixed which she identified. During cross examination she stated that she is illiterate and can only put thumb impression and denied the suggestion that she was CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 15/29 made to put his thumb impression on blank papers. She also stated that she does not know any person by the name of Jameel.
23. PW-18 stated that during relevant period he used to work as electrician and in response to summon Ex. PW-1/Q he tendered his voluntary statement Ex. PW-1/R before Sh. B.K. Banerjee on 23.10.2007 which was reduced into writing on his request by Sh.. Roshan Lal officer of DRI. During cross examination he stated that he can read Hindi but cannot write and do not know English language. He also stated that he does know accused Jamil and denied that he was made to put signatures on blank papers which was filled later on by DRI officials. He also stated that he does not know any person by the name of Jamil.
24. PW-19 stated that on the relevant period he was posted as Hawaldar in DRI head quarters and he handed over the summons Ex. PW-1/O and PW-1/V to Ms.Akhila Begum and Ajay Verma respectively issued by Sh. B.K. Banerjee and his report in this regard is at A-1 & A-2. During cross examination he denied that Mr. B.K. Banerjee never issued any summons to Ajay Verma and Akhila Begum and that he did not visit the premises of Ajay Verma and Akhila Begum to hand over the summons.
25. PW-20 stated that on the relevant period he was posted as Senior Tax Assistant in DRI Headquarters and in the present case on request of Sh. Soni he had written statement Ex. PW-1/R U/s 108 of Customs Act of Sh. Soni dt. 17.10.2007 which was voluntarily recorded CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 16/29 before Sh. B.K. Banerjee. During cross examination he denied that he wrote the statement of Sh. Soni at instance of Sh. B.K. Banerjee and not on the request of Sh. Soni.
26. PW-21 stated that during the relevant period he was posted as Superintendent Preventive, Central Excise Hapur Division UP and a letter was received in case of DRI Vs. Liaqan which was addressed to the then Assistant Commissioner. He then deposed about the search conducted at the premises of Shan Mohd and stated that nothing incriminating was recovered and panchnama Ex. PW-21/B was prepared. This witness was not cross examined by the accused.
27. Statement of accused was u/s 313 Cr.PC was recorded on 01.07.2019, during which all he incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. He also stated that he was innocent and has been falsely implicated in this case and he has not known as Bhura and nothing incriminating was recovered from his possession or from his residence and no mobile phone in his name has been recovered by the DRI officers. NO defence evidence was led and hence, final arguments were heard. Ld. Sr. SPP as well as Ld. Defence Counsel filed written submissions in support of their arguments.
28. I have also gone through the relevant provisions of Customs Act, 1962 and considered the written arguments filed by the parties. Relevant provision of Customs Act are reproduced below for reference:-
108. Power to summon persons to give evidence and produce documents.--3[(1) Any Gazetted Officer of customs CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 17/29 4*** 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 under this Act.] (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
135. Evasion of duty or prohibitions.--3[(1) Without prejudice to any action that may be taken under this Act, if any person--
is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 18/29 selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,--
in the case of an offence relating to,--
any goods the market price of which exceeds one crore of rupees; or the evasion or attempted evasion of duty exceeding 4[fifty lakh] of rupees; or such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds 1[fifty lakh] of rupees, with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.] 2[(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 19/29 an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than 3[one year].
(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than 3[one year], namely:--
the fact that the accused has been convicted for the first time for an offence under this Act;
(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;
(iv) the age of the accused.]
1. Ld. Sr. SPP for complainant had argued that the prosecution witnesses fully supported the case of the prosecution and relied upon judgment of Kanhiya Lal Vs. Union of India - AIR 2008 (SC) 1044 and submitted that the statements u/s 108 of Customs Act were not retracted, when the accused persons CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 20/29 had been produced before the Ld. ACMM, New Delhi and if a statement is not retracted at the first available opportunity that rather reinforces its voluntary character. He also drawn attention to the observations/law laid down by the Hon'ble Supreme Court in the case of D. Bhoormal- 1974 SCR (3) 833. He also argued that accused was also charged by Delhi Police for his role in FICN of Rs. 35 lakhs. He cited the call detail records as piece of evidence against the accused apart from statements u/s 108 customs Act. He also relied upon the judgment in the matter of Naresh J. Sukhwani vs. UOI, 1996 AIR 522.
2. He also cited various case laws on the point of reliance upon the testimony of official/police witnesses, Quantity not the deciding factor, absence of public witnesses, admissibility of statement u/s 108 Customs Act, discrepancies and testimony of hostile witness which only stated the settled position of law and has not specific relevance to the present case.
3. On the other hand, Ld Counsel for accused persons also filed detailed written arguments. She argued that nothing was recovered from the possession as well as residential premises of accused Mohd. Jamil. She further argued that the alleged voluntary statement of accused is already retracted and same is not corroborated by independent evidence. She relied upon judgment in the matter of Union of India Vs. Bal Mukund : JT 2009 (5) SC 45. She also relied upon judgment in the matter of DRI Vs. Moni : CRL LP No. 216/2007 decided on 02.12.2009 by Hon'ble Delhi High Court. She also placed on record copy of final judgment in FIR No. 52/2007 PS Special Cell wherein vide order dated 29.11.2017 all accuued including Mohd.
Jamil@Wasim@Bhura were acquitted. She prays for acquittal of accused Mohd. Jamil in the present case.
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4. The moot question before this court is to see whether the accused persons have violated the provisions of customs Act and whether accused Mohd. Jameel. has any role in transporting of FICN which was allegedly recovered from the possession of Liaqan (since deceased) in connected case.
5. Whether the statements u/s 108 Customs Act are sufficient enough to prove the charges: The complainant department has claimed that all the statement of accused recorded u/s 108 Customs Act were voluntary and therefore admissible piece of evidence and must be used against him. To support this Ld. Sr. SPP for complainant relied upon the judgement in the matter of Kanhiya Lal Vs. Union of India - AIR 2008 (SC) 1044 and submitted that the statements u/s 108 of Customs Act were not retracted, when the accused persons had been produced before the Ld. ACMM, New Delhi and if a statement is not retracted at the first available opportunity that rather reinforces its voluntary character. He also drawn attention to the observations/law laid down by the Hon'ble Supreme Court in the case of D. Bhoormal- 1974 SCR (3) 833. On the other hand Ld. Counsel for accused persons argued that the said statements were not voluntary and taken under duress and coercion. He also argued that same were retracted and cited the statement of accused persons recorded u/s 313 cr.pc.
6. The statement u/S 108 of Custom Act is to be taken into consideration with usual exceptions and precautions as contained in Section 24 to 27 of the Indian Evidence Act coupled with the attending circumstances in which it has been made to ascertain as to whether the same is voluntary, not made under any inducement, force or coercion and it must not to be believed perse . In any case, it is the CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 22/29 responsibility of the complainant to establish that such a statement u/S 108 of Customs Act was made voluntarily, and it becomes all the more important when retraction is the
7. In the matter of Vinod Solanki Vs. U.O.I, JT 2009 (1) SC 1, it has been held:
It is a trite to say that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded.
8. In K. I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721, relied upon by Ld SPP for complainant, in an appeal against conviction under Customs Act, 1962 and the Gold (Control) Act, 1968, the legal issue before the Apex Court was - "whether the confessional statement of the appellant made to the Customs Officers under Section 108 of the Customs Act, 1962 (for short "the Act"), though retracted at a later stage, is admissible in evidence and could form the basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence?" Relevant paragraphs of the judgment are:
CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 23/29 It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to initiate proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence Act.
20...................................... It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well-
settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 24/29 other person as was held in Bhagwan Singh v. State of Punjab (I) [AIR 1952 SC 214 : 1952 SCR 812] (AIR para 30).
..................................................... If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true.
9. The other aspect which is to be looked into as to whether the confessional statement recorded under Section 108 of Custom Act, can be read against the co-accused or not. In this context Section 10 of Indian Evidence Act also becomes relevant and the statement is to be measured, assessed and appreciated with the relevant provisions as aforesaid to come to any conclusion about its admissibility and credibility. In State of Maharashtra Vs. Akhtar Hussain Rehman Moson 1991(55) E.L.T. 327 (Bom.), it has been held as under :
"Turning to the evidence on record, it has been strenuously CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 25/29 urged by the ld. Prosecutor that the statements of the accused which are inculpatory statements and amount to confession of the guilt should have been accepted by the ld. Magistrate as providing sufficient evidence to hold the offence proved. These statements were retracted by the accused. Even though a statement recorded under Section 108 of Customs Act is admissible in evidence and would be relevant , yet it is a salutary rule that unless some amount of corroboration is available to it from some other independent evidence, it would not be safe to rely on it particularly when it is retracted by the person making."
10. The above discussion shows that statement u/s 108 customs Act alone wouldn't be sufficient to convict any person under customs Act unless there is some corroboration. The corroboration must be in the nature of evidence adduced by the complainant which shows that the averments in the statements stands corroborated by independent evidences. The retraction has been filed by accused Mohd. Jameel.
11. The accused Mohd. Jamil was arrested in the present case on the basis of statement of Shan Mohd. recorded u/s 108 Customs Act in connected case which has been duly retracted and also in view of arrest of accused by Delhi police in FIR 52/2007 PS. Special Cell. The said statement of Shan Mohd. had also been not relied upon on CC.08/2016 No. titled as DRI vs. Liaqan and others wherein accused Shan MOhd. was acquitted vide judgment dated 30.09.2020. Furthermore, vide judgment dated 29.11.2017 passed by Ld. Sessions Court in FIR no. 52/2007 PS. Special Cell also accused Mohd. CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 26/29 Jamil@Wasim@Bhura and others were acquitted. Despite availability of Shan Mohd. no attempts made by Complainant to either confront Shan Mohd. and Liaqan with accused Mohd. Jamil or get his Test Identification Parade from Shan Mohd, Liaqan of Mohd Sajid to show that indeed it was accused Mohd. Jamil who are arranging the travel of persons to Pakistan for transporting FICN.
12. The officials from Telecom operators were examined as PW8 and PW9. But both these witnesses have not stated that any of the mobile phone numbers 9897724429, 9897234020, 9990598359 and 9891010537were issued in the name of accused Mohd. Jamil or the Customer Application Forms(CAFs) for these numbers bears handwriting/signature of accused Mohd. Jamil. No attempt has been made by the complainant department to get handwriting/signature of accused Mohd. Jamil compared with the handwriting/signature available of CAFs of those mobile phone numbers. The basic links are missing to connect the usage of those mobile numbers by the accused and alleged handlers in Pakistan.
13. PW11 who is one of the public witnesses of the alleged recovery from Liaqan and Shan MOhd. has not supported the basic theory of the alleged raid and recovery. He categorically stated that he was with accused Liaqan with her luggage trolly whereas as per case of complainant, PW11 alongwith PW14 were called for joining the recovery after Liaqan and Shan Mohd. were apprehended. Despite detailed cross examination by Ld. SPP for complainant, PW11 denied all suggestions.
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14. PW15 who is Travel agent had not be asked to identify the accused Mohd. Jamil who was present when his testimony was recorded despite him saying that he don't know whether Bhura is also known by any other name. No witness from the residential locaility of accused was examined to show that accused Mohd. Jamil is also known by the name of Bhura or Wasim.
15. PW17 denied knowing any person by the name of Jamil and despite that she was not asked to identify the accused as the person who had made travel arrangement for her as allegedly she was also used for transporting FICN by accused Mohd. Jamil. Similarly PW18 also denied knowing anyone by the name of Jamil and no question put to him by Ld. Sr. SPP for the complainant challenging such testimony of PW17 and PW18.
16. The documents have been recovered from accused Shan Mohd. to show that he was aware about the arrival of the stated flight from which accused Liaqan came from Pakistan.
17. In the present case, the complainant alleged transportation of FICN by the accused. However, it has been admitted by all the witnesses that nothing was recovered from the possession of accused Mohd. Jamil. The only allegation is that he had made travel arrangements of Liaqan for her visit to Pakistan after getting the tickets booked through M/s Sajid Tours and Travels and further sent Shan Mohd. to pick her from the Airport. But no material has been placed alongwith the CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 28/29 complainant to corroborate such statement of Shan Mohd or Liaqat Ali also wherein he claimed that he had accompanied accused Shan Mohd. at his asking only.
18. The complainant has based its case on the statement of witnesses and documents which are filed on record but none of the documents or the witnesses have been able to prove that accused Mohd. Jamil had facilitated the transportation of FICN. The necessary links to connect accused Mohd. Jamil to the crime are missing.
19. Hence, in view of the above discussion and evidence on record, I am satisfied that complainant department has failed to prove the allegations against the accused Mohd. Jamil beyond reasonable doubt. Benefit of doubt must go to the accused. Accordingly, accused Mohd. Jamil S/o Sh. Mohd. Ibrahim stands acquitted of the charges u/s 135 (1)(b) Customs Act, 1962. Bail Bonds cancelled, surety discharged. Bail bonds u/s 437A Cr.P.C are already on record.
20. File be consigned to Record Room.
Announced in the Open court (Pawan Singh Rajawat) through Video Conferencing CMM/ND/Patiala House Courts, on 28th October, 2020. New Delhi CC No. 391144/16 DRI Vs. Mohd. Jamil @ Wasim @ Bhura 29/29