Delhi District Court
Ram Dass Chauhan S/O Sh.Tej Singh vs Customs on 29 September, 2010
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 04.09.2009
Date of judgment reserved on : 16.09.2010
Date of decision : 29.09.2010
Criminal Appeal No.40/09
IN THE MATTER OF :
Ram Dass Chauhan S/o Sh.Tej Singh
R/o 655/1, Paschim Puri,
Madipur, Delhi. ..... Appellant
Versus
Customs ..... Respondent
JUDGEMENT: Accused Ram Dass Chauhan convicted U/s 135 (1) (a) of the Customs Act is in appeal against conviction. On the point of sentence he was considered eligible to a sentence lesser than the minimum prescribed when the mitigating circumstances that he lost his job and had no other criminal case involvement and accordingly he was let off with a sentence for the period he had already undergone.
Legality of the conviction has been questioned on the grounds pleaded in Criminal Appeal No.40/09 page No.1 of 14 2 this appeal and then argued by ld counsel Sh.Akshay Anand and ld counsel argued basically that conviction of the appellant was entirely based upon the statement of appellant recorded in terms of Section 108 of the Customs Act. Accused had retracted from that statement and such a retracted statement could not be a basis to convict accused in absence of any other incriminating material brought by the prosecution. Likewise statement of coaccused Daya Ram recorded U/s 108 of the Customs Act also could not be used against the present appellant. There was even a delay of 4 to 5 hours in recording statement of Daya Ram as has been admitted by the witnesses and such a delay would create reasonable doubt for the manipulation of the story. Ld counsel further pointed out that this statement of Daya Ram was written by an official Bhanu Prakash and this scribe Bhanu Prakash has not been produced in evidence.
Another point argued by ld counsel was that sanction for prosecution in terms of Section 137 of the Customs Act could not be held to have been duly complied with and proved. Sanction was granted by the Additional Commissioner of Customs whereas Section 137 Customs Act placing bar in taking cognizance of an offence without the previous sanction and that sanction was required to be granted by Commissioner of Customs. Ld counsel further argued that sanction has been proved by the seizing officer only by identifying signatures of the authority and such a proof of sanction for the prosecution would not satisfy the requirement of the law that due application of mind was made before sanction for the prosecution was granted.
Criminal Appeal No.40/09 page No.1 of 14 3
Another point raised by ld counsel was that there was no evidence that contraband recovered and seized in this case was in fact gold. Prosecution has relied upon a certificate Ex.PW1/D purported to have been recorded by a jeweller/approved valuer but then only on a plain paper sheet to which no sanctity could be granted and more over the witness who recorded this certificate having not been produced in evidence, mere exhibiting of the documents by the seizing officer PW1 would not prove the factum of the articles seized in this case where gold with a purity of 24 carat as has been recorded in this certificate. Ld counsel relied upon Karnataka High Court judgment reported as 1980 Crl. L.J 533 and this judgment is on a point that burden is on the prosecution to prove that what had been seized from accused was gold. Mere certificate by a person that seized article was gold will not be sufficient in view of provisions of Section 45 of the Evidence Act. Another judgment by Karnataka High Court relied upon by ld counsel is 1980 Crl. L.J No.370. In that case though a Goldsmith had deposed that gold biscuits examined by him were of 24 carat purity but in the absence of any mark of identification or seal it was not possible to hold that commodity tested by the witness was the one seized from accused.
On the proposition that sanction for prosecution has to be proved and established by the prosecution to be a valid one, ld counsel relied upon Supreme Court judgment reported AIR 1979 SC 677. Counsel argued that with the evidence and material produced before ld ACMM by the prosecution could not be said to have proved the charge against the accused and conviction was bad Criminal Appeal No.40/09 page No.1 of 14 4 in law, liable to be set aside.
Ld special public prosecutor Mr.Kanojia argued that sanction for prosecution has been duly proved by the seizing officer PW1 by identifying signatures of the sanctioning authority, he being familiar with the signatures of the sanctioning authority and ld counsel relied on Delhi High Court judgment reported as AIR 1970 Delhi 102 on the point of sanction duly proved in the manner as has been proved by PW1. Counsel further argued that the requirement for grant of sanction for the prosecution was to avoid frivolous prosecution and i.e to be reflected from the contents of the sanction order that due application of mind was made by the sanctioning authority and where such a test before the grant of the sanction is found satisfied that sanction order cannot be considered suffering any illegality and on this point ld counsel relied upon Delhi High Court judgment reported as 2010 (1) JCC 342. He further argued that Additional Collector of Customs is a part of the definition of Collector Customs and thus competent to grant the sanction.
Mr. Kanojia further argued that it is a well settled proposition of law that statement of a person recorded in terms of Section 108 Customs Act is not a statement by an accused before a police officer and thereby it neither falls in the category of Section 161 Cr P.C nor in the definition of a confession before police officer and such a statement can be used as a substantive evidence against the person who gave such a statement. He further argued that mere retraction of statement in the absence of any ground justifying the retraction on a particular Criminal Appeal No.40/09 page No.1 of 14 5 reason or ground will not render statement inadmissible or liable to be excluded from consideration. In the present case the accused appellant has failed to point out any material from the record whereby any justification could be seen that statement was retracted on a valid ground or reason. Accused when arrested in this case had been got medically examined and there is no report of any kind of injury on his person and nor any such physical beating or torture has been alleged or proved by the accused. Statement of accused was liable to be taken in to consideration. Ld counsel referred to a Supreme Court judgment reported as 1972 Crl. L.J 759 on a proposition that confessional statement recorded by the officer of customs under the Customs Act is admissible in evidence and is not hit by Section 25 of the Evidence Act or by article 20 (3) of the Constitution.
On the point of validity of the sanction for the prosecution ld Prosecutor referring to above cited Delhi High Court judgment & pointed out that what the prosecution has to prove is that sanction was recorded with respect to the facts constituting the offence. Absence of facts may not lead to an inference of non application of mind though narration of facts in the order is desirable. I have considered both sides contentions.
Facts in brief where this prosecution came to be filed in the year 1985 are;
Present appellant accused Ram Dass Chauhan employed with Air India as a cleaner as per the document proved as Ex.PW2/C in this case and as had been submitted during arguments in this appeal that entitled to a complementary Criminal Appeal No.40/09 page No.1 of 14 6 air ticket once in a year to visit even a foreign country, happened to reach airport Delhi from Hongkong on the late evening/night of 15/7/1985. Certificate Ex.PW2/C further records that prior to his arriving by an international flight at international airport Delhi on 15/7/1985, he was reported absent from duty on th th th th 13 and 14 July 1985 and the 11 and 12 July 1985 as weekly off's. He was to continue to be in the plane as his destination in that journey was Bombay. Coaccused in this case Daya Ram ( who during pendency of the trial before Ld ACMM was reported to have died and prosecution was reported to have abated against him vide order dated 8/5/2008 and by that time that accused Daya Ram had even examined himself on oath as a defence witness and the case had reached final arguments stage ) he was a sweeper employed with Air India and was on duty on 15/7/1985. He reached the plane whereby present appellant accused had reached Delhi Airport for the cleaning/sweeping purposes. Both appellant accused deceased Daya Ram and accused being colleague and known to each other, two packets each containing 8 gold biscuits, each biscuit weighing 100 grammes, all biscuits bearing foreign marking and bearing 24 carat purity were given by appellant accused Ram Dass Chauhan to coaccused Daya Ram in a sick bag with a clandestine understanding to bring these gold biscuits out of the Customs limits of airport. Air Custom Officer Sh. V.K.Verma examined as PW1 in this case while on duty was keeping a surveillance on the movement of the cleaning staff and he suspected Daya Ram by his movements and chasing Daya Ram the officer intercepted him near IAC gate and frisked him and Criminal Appeal No.40/09 page No.1 of 14 7 recovered two packets containing gold biscuits from the Nepha pocket of pant of Daya Ram. Since accused Daya Ram was unable to explain any valid source for the possession and procurement of that gold that he was produced before Air Customs Superintendent and before the Superintendent PW2 R.L Lamba accused Daya Ram volunteered a statement which came to be recorded in terms of Section 108 Customs Act and has been now proved as Ex.PW2/A. Since accused Daya Ram disclosed and pointed out that those gold biscuits had been handed over to him by Ram Dass Chauhan who was still in the aeroplane for his further destination of Bombay, present appellant accused Ram Dass Chauhan was got deboard that AirIndia flight and was brought to the arrival hall customs and was interrogated. Accused Ram Dass Chauhan also came out with a statement U/s 108 of the Customs Act and that too was recorded by Air Customs Superintendent Sh. R.L. Lamba and witness Sh. Lamba proved this statement as Ex.PW2/C. Accused appellant Ram Dass Chauhan admitted in that statement that he reached Delhi Airport by AirIndia 301 flight on the early morning of 15/7/1985 from Hong Kong and had brought those gold biscuits and taking advantage of the situation that Daya Ram sweeper his colleague was there for cleaning the aeroplane, he handed over those gold biscuit packets in sick bag to Daya Ram. With these investigation formalities that both accused came to be prosecuted on a complaint filed by Sh.V.K Verma, Air Customs Officer.
It was a long drawn proceedings when evidence of the Criminal Appeal No.40/09 page No.1 of 14 8 complainant/prosecution came to be recorded at a precharge stage and after hearing arguments from both sides that charge for offence U/s 135 (1) (a) of the Customs Act was framed against both accused on 5/4/2003. Prosecution witnesses already examined at a precharge stage were called by the accused persons for their further cross examination but then complainant Sh. V.K Verma examined at precharge stage could not be produced for his further cross examination post charge since he was reported to have passed away. Now the evidence to prove charge against appellant accused comprises testimony of the air customs superintendent PW2 and evidence of sh. U.K Mishra PW3 who was the air custom officer(preventive) at airport on the night of the incident of this case.
This witness Sh.Mishra has deposed that accused deceased Daya Ram had been intercepted by Sh. V.K Verma and gold biscuits were recovered from the possession of Daya Ram and when Daya Ram interrogated, he disclosed that those gold biscuits had been handed over to him by Ram Dass Chauhan. Accused Daya Ram was produced before Superintendent Customs and accused volunteered his statement which was recorded U/s 108 Customs Act. Witness further deposed that as instructed by Sh. R.L.Lamba Customs Superintendent the present accused appellant was got deboard the aeroplane and he was then interrogated and he too gave a statement which was recorded U/s 108 of the Customs Act. Relevant document like the air ticket whereby accused appellant travelled from Hong Kong to India and was enroute destination Bombay was still Criminal Appeal No.40/09 page No.1 of 14 9 in plane till he was got deplaned. Identity cards of both the accused were also seized.
Admittedly there is no direct evidence that gold biscuits recovered from accused deceased Daya Ram had been given to Daya Ram by the present appellant accused but then we have the evidence that Daya Ram gave a statement before Superintendent Custom and that came to be recorded in terms of Section 108 of Customs Act and it disclosed as a spontaneity of the events that gold biscuits were given to him by the appellant accused. It did not come in controversy during trial that Daya Ram was a sweeper employed with AirIndia and had come to the aeroplane to clean it by which aeroplane appellant accused had reached Delhi Airport from Hong Kong.
As to the admissibility statement of a person who later on turned to be an accused when recorded U/s 108 of the Customs Act it came to be held by the Supreme Court in a case 1997 (3) SCC 721 that though the officer who recorded such statement was not a police officer but he would be an authority within the meaning of Section 24 of the Evidence Act but then a confessional statement recorded by reasons of statutory compulsion or given voluntarily by accused pursuant to his appearing on summons or on surrender, such a statement could not be said to have been obtained by inducement or promise and hence it would be admissible in evidence for the prosecution U/s 135 of the Customs Act. It has been further held that though such a confessional statement was subsequently retracted, if on the facts found voluntary and truthful it could form a basis for Criminal Appeal No.40/09 page No.1 of 14 10 conviction. It was not necessary that each detail in the retracted confession be corroborated by independent evidence. It was only a rule of prudence that court seeking assurance from other facts and circumstances to corroborate the retracted confession.
Again it has been held by Supreme Court in a case Hem Raj Vs State AIR 1954 S.C 642 that a mere bald assertion by accused that he was threatened, tortured or induced, such a plea cannot be accepted as truth without any material to support it. Mere retraction would not render the confession statement inadmissible has again been held and observed in AIR 1997 S.C 256. As regards statement/confession by person for its use against coaccused, it has been held in a case reported in 1992 CCR 1122 that the concept of confession in cases under Indian Penal Code cannot be extended to the statements of co accused U/s 108 Customs Act or U/s 67 NDPS Act.
Coming to the evidence and incriminating material against accused appellant, prior to his deboarding the plane whereby he had travelled from Hong Kong to Delhi airport, coaccused Daya Ram had already been apprehended and recovery of smuggled gold biscuits had already been effected from him and he volunteered a statement which was recorded before Air Customs Superintendent and now proved as Ex. PW 2/A. Accused Daya Ram came out with all the details as to how he came in possession of gold biscuits. Though later on in his 313 statement he denied recovery of the gold biscuits but then that explanation remained only an unsubstantiated material. There appear no reason Criminal Appeal No.40/09 page No.1 of 14 11 to not to accept the evidence of Air Customs Officer V.K.Verma who had specifically deposed on oath and after keeping a surveillance on these persons and doubting his conduct he intercepted him after he attended sweeping/cleaning duty in the aeroplane that gold biscuits were recovered. Though witness could be examined only at precharge stage and his cross examination was conducted by counsel for accused Daya Ram, defence suggested to witness was that in fact gold was found lying in the vehicle and then foisted on that accused Daya Ram, no reason at all was attributed to witness as to why he would depose falsely against accused Daya Ram. Witness Sh. V.K Verma could not be examined post charge trial stage in this case as he passed away and ld special prosecutor cited a judgment 1998 Crl. L.J 3494 that evidence of such a witness though not subjected to cross examination after charge because of his death his evidence was to be taken in to consideration. Evidence of Customs Officer V.K Verma PW1 appears to be entirely credit worthy and not impeached in the cross examination.
Likewise PW2 Air Customs Superintendent when cross examined on behalf of accused Daya Ram nothing could be pointed out by defence counsel from this cross examination if statement given by Daya Ram and recorded U/s 108 Customs Act was unacceptable. Ld counsel pointed out that PW2 deposed in cross examination that this statement of Daya Ram was recorded by around 8, 9 or 10 am and thereby after a long delay of time since Daya Ram had been apprehended. Witness was cross examined in 2005 i.e after 20 years of the Criminal Appeal No.40/09 page No.1 of 14 12 incident. How much precise a court can except a witness to be as regards such a point. No other reason or suggestion has been given to the witness whereby testimony of this witness qua recording of statement of Daya Ram could be doubted. It is a matter of record that statement came to be recorded after smuggled gold had been recovered from Daya Ram.
Statement of Daya Ram Ex. PW 2/A being spontaneous it revealed name of the present appellant accused who had handed over that smuggled gold to him to be brought out of the customs barrier. Present appellant accused was in the aeroplane where Daya Ram had attended cleaning work and both were colleagues known to each other. Present appellant accused after being deplaned also gave his statement now proved as Ex. PW 2/C. This statement and the earlier statement of Daya Ram is corroborated by circumstance that accused was in the aeroplane having traveled from Hong Kong. Nothing appears from the tenor or the text of the statement of this accused or from the cross examination of witness Sh. Lamba who had recorded this statement to render this statement inadmissible in evidence or unacceptable or any other account. PW2 was cross examined that he did not take up inquiries from appellant accused in the aircraft. It hardly has any meaning when the aeroplane was set for its further destination to Bombay and accused was got deboard plane and brought to the customs office. Another suggestion put to PW2 is that this appellant accused was forced to right his statement but then there is no other material to support this defence. Ld. defence counsel argued that this Criminal Appeal No.40/09 page No.1 of 14 13 statement was retracted by accused when he moved the bail application. It could not be pointed out from any such application or any other material that statement suffered any serious illegality and came to be retracted. Even otherwise mere retraction would not render the statement inadmissible unless valid reasons for retraction were brought before the court. In this statement Ex. PW 2/C accused Ram Dass Chauhan admitted to have smuggled those gold biscuits but then attributed that smuggled article to one P Singh @ Kukku Sardar. Trial court record is absolutely silent if any further investigation revealed any such connectivity of Kukku Sardar with smuggled articles. To my view trial court has committed no illegality in holding that statement given by accused U/s 108 Customs Act was admissible and it duly proved the charge.
As regards sanction for prosecution granted by the Additional Commissioner of Customs or that it has been proved by official witness by identifying signatures of the authority, there is no illegality in the sanction or the proceedure for its proof. A look at the sanction order Ex. PW 1/B shows that it incorporates entire relevant facts and shows that there was a due application of mind by the authority before sanction was granted.
Ld defence counsel argued that there was no satisfactory prove that smuggled articles were in fact gold. As observed above defence put to the seizing officer PW1 in the cross examination was that in fact this gold was found lying in the vehicle and later on planted upon accused. Issue put before court during trial was the false implication of accused rather than any dispute on the Criminal Appeal No.40/09 page No.1 of 14 14 nature, quantity or purity of the smuggled gold.
Conviction of the appellant as recorded by Ld ACMM by his conviction judgment dated 3/8/2009 suffers no illegality and it is liable to be upheld and confirmed. As regards sentence Ld ACMM has already shown sympathy which to my considered opinion was uncalled for. The court ought not to have ignored the circumstance that accused indulged in the smuggling activity by taking advantage of his being part of the system i.e., employed with Air India. Mere fact that he lost his job or that there was no earlier involvement in any criminal case could not be mitigating circumstance to award him a sentence less than the minimum prescribed. Offence was against the economy of the country and was a serious one. However in the absence of any appeal by the state against inadequacy of sentence this court cannot dwelve upon this issue further.
The seized property was required to be disposed off by the order of the court and the trial court record reveals that at one point of time the case property was reported no more traceable with the department and thus not produced before the court. Let Ld ACMM ought to take up this aspect of the case and to pass appropriate order.
Appeal filed by Ram Dass Chauhan is dismissed but the case is remanded to ld trial court only on the point of the disposal of the case property.
Announced in the Open (J. R. ARYAN)
court on 29/09/2010. ADDITIONAL SESSIONS JUDGE
Criminal Appeal No.40/09 page No.1 of 14
15
NEW DELHI.
Criminal Appeal No.40/09
Ram Dass Chauhan Vs Customs
29/09/2010
Present: Appellant in person with counsel
Vide separate judgment conviction judgment dated 3/8/2009 ld ACMM suffers no illegality and it is upheld and confirmed.
Copy of the judgment be sent to the trial court. Appeal file be consigned to record room.
(J. R. ARYAN) ADDITIONAL SESSIONS JUDGE NEW DELHI.
29/09/2010.
Criminal Appeal No.40/09 page No.1 of 14 16 Criminal Appeal No.40/09 page No.1 of 14