Delhi District Court
Dri vs . Vipan Sehgal on 28 June, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 39964/16
U/s : 132 & 135(1)(a) Customs Act, 1962
DRI Vs. Vipan Sehgal
Unique ID No. : 39964/16
Date of institution of case : 15.05.1996
Date of reserving the judgment : 27.05.2019
Date of pronouncement of judgment : 28.06.2019
JUDGMENT
1. S. No. of the Case : 36/1/96
2. Date of Commission of Offence : In August 1994
3. Name of the complainant : Sh. S K Chatterjee,
Intelligence Officer,
Directorate of Revenue
Intelligence, Nepal Division,
New Delhi.
4. Name,parentage & address of accused : Vipan Sehgal
S/o Late Sh. R L Sehgal,
Director of M/s Sangeeta
Jewels Pvt Ltd., at M7,
Greater KailashI, Market,
New Delhi and R/o E352, 2nd
Floor, Greater Kailash,
New Delhi.
CC No. 39964/16 DRI Vs. Vipan Sehgal 1/21
5. Offence complained of : u/s 132 & 135(1)(a) Customs
Act, 1962
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that DRI officers gathered intelligence that accused and his firm i.e M/s Sangeeta Jewels Pvt Ltd at M7, Greater KailashI Market, New Delhi in which accused Vipan Sehgal was one of the Directors, was indulged in smuggling of gold by committing fraud in export of gold jewellery under Jewellery Export Promotion Scheme of Ministry of Commerce, Govt. of India (para 88C of the Exim Policy, 1992
97). It is alleged that in August, 1994 the abovesid firm exported four consignments from IGI Airport, New Delhi, declared to be of gold jewellery to Dubai vide different Airway Bills in discharge of its export obligation towards which the accused and his firm have been allotted 10kg of primary gold at International price value of Rs. 39 lacs approximately by M/s MMTC Ltd, New Delhi. It is further alleged that the abovesaid consignments remained uncleared at Dubai Airport and were reimported after one and a half year at IGI Airport, New Delhi and on 14.03.1996 the abovesaid consignments were examined and on examination the consignments were found to be containing jewellery of silver which was coated with gold colour and imitation jewellery. It is further alleged that the accused and his firm were making false declaration in respect of the contents of the export consignments and thereby accused Vipan Sehgal committed offence punishable u/s 132 and 135(1)(a) Customs Act, 1962.
2. Cognizance of the offence was taken and the accused was supplied with CC No. 39964/16 DRI Vs. Vipan Sehgal 2/21 the copies and matter was adjourned for pre charge evidence in which five witnesses namely PW1 H S Swami, PW2 S K Chatterjee, PW3 Vijay Pal, PW4 Rajesh Verma and PW5 R K Johar were examined. After hearing arguments on charge, the detailed orders on charge dated 27.09.2012 was passed by Ld Predecessor vide which charge u/s 132 & 135(1)(a) of the Customs Act, 1962 was ordered to be framed against the accused Vipan Sehgal.
3. During post charge evidence, the department examined as many as 13 witnesses.
4. PW1 H S Swami, Sr. IO, DRI deposed that he was working as Sr. IO, DRI since September 1993 and he recorded the statement of accused Vipan Sehgal on 16.03.1996 and 15.03.1996 which he tendered before his Assistant Director running into 06 pages bearing signatures of the accused and his signatures at point A and B respectively which is Ex.PW1/B. He also stated that before recording the statement he issued the summons to the accused Ex.PW1/A. He further stated that he also issued summons to Sh. R K Johar Ex.PW1/C and recorded his statement u/s 108 of Customs Act which is Ex.PW1/D. He further stated that he also recorded the statement of Sh. Vijay Pal, Dy. General Manager, MMTC Ltd u/s 108 Customs Act which is Ex.PW1/F. During his cross examination he stated that he recorded the statement of accused and that he was also present at the time of examination of four consignments at IGI Airport Cargo Complex which was done on 14.03.1996 and the said consignments were subject matter of reimport from Dubai which was started by MMTC. He stated that accused Vipan Sehgal had not participated in any activity of reimport of the consignments. He stated that he did not have any idea if the consignment had reached India on re import almost a month prior to their examination on 14.03.1996. He CC No. 39964/16 DRI Vs. Vipan Sehgal 3/21 denied that the consignments were opened by Dubai Customs before they were reexported from Dubai. He stated that he had not seen the file pertaining to the reimport of the consignment. He also stated that the name of the exporter was MMTC Ltd and the name of M/s Sangeeta Jewels Pvt Ltd was written in account. He also stated that the accused was not summoned at the airport at the time of examination of the consignments. He stated that all the four consignments were examined by the examination officers and they were found to be correct. He stated that the exchange control copy of the export documents was signed by the representative of MMTC and by the appraiser. He also stated that in the consignments the exporter was MMTC Ltd and the payments was to come in the account of MMTC Ltd as per exchange control policy. He denied that the accused was falsely implicated in this case to save the customs officers and the officers of MMTC Ltd.
5. PW2 S K Chatterjee deposed that in the year 1996 he was posted in Commercial Intelligence Branch of DRI, Delhi and he filed the present complaint Ex.PW2/A alongwith list of witnesses and before filing of the complaint, the sanction and authorisation for prosecution was given by the then Commissioner of Customs, New Delhi Sh. R K Chakraverty which is Ex.PW2/B bearing his signatures at point C. He stated that he also conducted the search of residential premises of the accused and seized certain documents vide panchnama Ex.PW2/C. He identified the accused and the documents seized which are Ex.PW2/D to Ex.PW2/G12. During his cross examination he stated that he was given all the documents pertaining to the procedure adopted for recall of the four consignments which were reimported by MMTC. He stated that the documents regarding the consignments were handed over to Sh. Sandeep Kumar, Assistant Director, DRI and the name of MMTC was mentioned CC No. 39964/16 DRI Vs. Vipan Sehgal 4/21 in all the four documents as exporter and that was why MMTC was competent to recall the said four consignments. He stated that he had not filed the documents pertaining to recall of four consignments from Dubai. He stated that he was not present at the time of inspection of the consignments and he did not see the condition thereof when the consignments arrived back from Dubai. He could not tell as to whether the seals on the recalled consignments were intact or tempered with. He stated that in the file given to him by Sandeep Kumar the documents also contained few photographs taken during the search proceedings and said photographs were not filed alongwith present complaint nor the same were placed before Sh. R K Chakraverty, the sanctioning authority. He denied that the accused was falsely implicated and that the consignments were opened and checked before allowing the reexport from Dubai.
6. PW3 Vijay Pal deposed that in the year 1996 he was posted as Dy. GM, MMTC, Jewellery Division in Finance & Accounts Department and in response to the summons issued to him which is Ex.PW1/E, he appeared in the DRI office and tendered his statement u/s 108 Customs Act Ex.PW1/F before H S Swami, Sr. IO, DRI who was conducting investigation of this case. He further stated that on 20.03.1996 he gave certain clarifications and details about this case vide his letter Ex.PW3/A. He stated that the attested photocopies of the document/agreement between MMTC and M/s Sangeeta Jewels Pvt Ltd is Ex.PW3/B13. He stated that the said agreement was signed by the Director of M/s Sangeeta Jewels namely Vipul Sehgal and on behalf of MMTC Sh. V Chandermoli. He stated that the document Ex.PW3/C15 is the attested photocopy of loan of gold application dated 15.04.1994 of M/s Sangeeta Jewels and the documents Ex.PW3/1 to Ex.PW3/10 are collectively the CC No. 39964/16 DRI Vs. Vipan Sehgal 5/21 attested photocopies for two applications for loan of gold of M/s Sangeeta Jewels and Ex.PW3/E is the attested photocopy of shipping bill no. 58075 and Ex.PW3/F and Ex.PW3/G are the invoice and airway bill pertaining to the abovesaid shipping bill. He stated that Ex.PW3/H is the insurance copy and Ex.PW3/J is the order pertaining to shipping bill no. 58075 mentioned above. He further stated that vide the abovesaid documents M/s Sangeeta Jewels had purportedly exported 3kg approximately of gold jewellery and vide attested photocopy of the shipping bill no. 058574 Ex.PW3/K and attested photocopy of invoice Ex.PW3/L, airway bill Ex.PW3/M and attested photocopy of order Ex.PW3/N, attested photocopy of insurance cover is Ex.PW3/O related to shipping bill Ex.PW3/K M/s Sangeeta Jewels accused had purportedly exported about 2 kg of gold jewellery. He further stated that vide attested photocopy of shipping bill no. 58074 Ex.PW3/P, attested photocopy of invoice Ex.PW3/Q, attested photocopy of insurance cover Ex.PW3/R, attested photocopy of order Ex.PW3/S, attested photocopy of airway bill Ex.PW3/T which all related to shipping bill Ex.PW3/P, M/s Sangeeta Jewels Ltd had purportedly exported approximately 2 kg gold jewellery. He further stated that vide shipping bill no. 057553 (attested photocopy) M/s Sangeeta Jewels had purportedly exported 3kg approximately of gold jewellery Ex.PW3/U, attested photocopy Ex.PW3/V, attested photocopy of order Ex.PW3/W, attested photocopy of insurance cover Ex.PW3/X, attested photocopy of airway bill Ex.PW3/Y are all documents related to shipping bill Ex. PW3/U vide which the accused purportedly exported 3 kg approximately of gold jewellery. He further stated that all the abovesaid consignments were exported to Dubai by air by M/s Sangeeta Jewels Ltd to the respective buyers selected and identified by them. He further stated that original shipping bill no. 057553, 58074, 58574 and 58075 have been CC No. 39964/16 DRI Vs. Vipan Sehgal 6/21 placed on record alongwith their original respective invoices related to all the abovesaid four consignments and have also been marked as Ex.PW3/U1, Ex.PW3/V1, Ex.PW3/P1, Ex.PW3/Q1, Ex.PW3/K1, Ex.PW3/L1, Ex.PW3/E1, Ex.PW3/F1 and the abovesaid original shipping bills are Ex.PW3/U to Ex.PW3/E1. He stated that on 04.06.1996 vide letter Ex.PW3/Z, he gave further information and clarification regarding the relation between M/s Sangeeta Jewels and MMTC to Sh. Sandeep Kumar, the then Assistant Director, DRI. This witness was cross examined at length by Ld defence counsel during which he admitted that under the scheme of Exim Policy, 199297 MMTC was designated agency for import of gold and supply to jewellery exporters. He admitted that for the release of gold on loan the accused had given collateral security to MMTC. He stated that the parcels were recalled by MMTC in consultation with DRI and that he was not aware as to in which month and year the process of recalling of consignments took place. He admitted that the panchnama of the consignment was made at the time of its opening in March 1996 and at that time he was present alongwith DRI officers and officers of MMTC. He stated that he did not know if the accused Vipan Sehgal was present at that time. He admitted that in all the four shipping bills name of MMTC Ltd was written in the exporter column. He stated that it is the matter of record that all the four consignments have been checked and sealed by the appraiser before they were exported and that in all the four consignments exchange control declaration prepared by Sangeeta Jewels Ltd were presented before MMTC for counter signatures and accordingly the same were signed by Sh. I S Sidhana, Dy. Manager, MMTC. He admitted that the payment against the export was to come to MMTC's bank account. He stated that he reached at the spot before the examination of consignments started in CC No. 39964/16 DRI Vs. Vipan Sehgal 7/21 the strong room of Airport Authority, IGI Airport and that he had physically examined the consignments and all customs seals were intact. He did not remember as to whether there were seals of Dubai customs on the packages. He could not tell as to whether the accused was contacted by MMTC or DRI before 15.03.1996 and he could not tell as to when the consignments were received back in India. He denied that after fabricating the jewellery the same was given to MMTC for export and export was made by MMTC and that the name of Sangeeta Jewels Pvt Ltd was mentioned in the export documents for the purpose of giving the fabrication charges to the said company.
7. PW4 Rajesh Verma deposed that on 14.03.1996 he was working as Jewellery Expert Appraiser Customs and on 14.03.1996 he was called by the department at the Air Cargo Complex in the strong room of import shed at IGI Airport and his two colleagues jewellery appraiser Mr. Ali Mustafa and Mr. M A Chauhan were present. He stated that he was called to witness the jewellery parcels reimported vide airway bills and after strict examination it was found that the original customs seals were present and intact. He stated that each parcel was opened for examination during which it was found containing silver jewellery coated with golden colour and imitation jewellery and the said parcel was consigned by M/s Sangeeta Jewels Pvt Ltd to their overseas buyers M/s Danat Albahar and M/s Hunaidi Jewellers. He stated that the detailed description of jewellery was mentioned in the examination report Ex.PW4/A and on completion of the examination jewellery was kept in the respective container alongwith original packing material which was sealed with custom seals. He stated that the examination report Ex.PW4/A was prepared by Sh. S N Verma, Inspector Air Cargo, Customs who also witnessed the proceedings and examination. He stated that the CC No. 39964/16 DRI Vs. Vipan Sehgal 8/21 said report was also attested by one DRI official namely Sh. H S Swami and the surveyor Sh. H R Chaudhary. He further stated that Sh. M S Chauhan and Ali Mustafa, Appraisers, Sh. H K Sehgal, Inspector Import Cargo, IGI Airport, Arun Chandra and Vijay Pal, officials of MMTC were also present there who also signed the said report. The case property was produced which is Ex.PW5/A1 to Ex.PW5/A21, Ex.PW5/B1 to Ex.PW5/B27, Ex.PW5/C1 to Ex.PW5/C20 and Ex.PW5/D1 to Ex.PW5/D21 When the case property was produced before the Court, the Court observed that there is no Sutli around the box nor the paperslip with laak seal on it. He further stated that his statement u/s 108 of Customs Act was recorded by Sh. S Kumar, the then Assistant Director, DRI Which Ex.PW4/F. During his cross examination by Ld defence counsel he admitted that in all the four parcels produced in the Court there was no sutli around the parcels with laakh seals and that in all the hand stitched portion of cloth cover there was no laakh seal of customs and he also admitted that key to the lock of the parcels inside the cloth cover was found inside the cloth cover itself. He stated that neither the lock or the key thereto was sealed in any cloth wrapping with seal of customs. He denied that the parcels were opened and interpolated in customs before they were produced in the Court. He stated that the name of exporter was written as MMTC in the document and that MMTC used to enter into an agreement with manufacturing exporter to manufacture and export the jewellery on its behalf. He admitted that the payment of consignment goes into the account of which signs GR1 form as exporter and that the MMTC was to receive the invoice value of the consignment and after receipt of the same MMTC would pass on labour charges to M/s Sangeeta Jewels Pvt Ltd. He admitted that all the four consignments at the time of export were appraised by him as was produced before him by accused CC No. 39964/16 DRI Vs. Vipan Sehgal 9/21 Vipan Sehgal for the appraisement and that at the time of appraisment all the four consignments were of .930 fine gold jewellery and that the appraisement and sealing of parcel was done at FPO and after the examination of gold jewellery repacking in the box stitching, getting the same sealed and carrying it to Air Cargo Complex was the responsibility of the exporter i.e Vipan Sehgal under custom escort alongwith CHA. He denied that consignment once passed the appraisement is accepted by the customs and the exporter or any other person had no access to the same. This witness did not give the straight answer to the question put to him by Ld defence counsel regarding the fact of having seen accused Vipan Sehgal substituting the material in any of the consignment and he stated that accused used to come at FPO and the substitution of gold jewellery must have been done by him after appraisement of the gold jewellery and before sealing the same. He denied that the consignment once appraised by the appraiser is accepted for export and nobody including exporter had the access thereto. He denied that the accused was made a scapegoat to save officers of MMTC and officers of customs as all the four consignments there was .930 fine gold.
8. PW5 R K Johar stated that his statement was recorded u/s 108 Customs Act by the IO on 15.03.1996 and on 03.04.1993 which are Ex.PW1/H and Ex.PW1/D. This witness was shown the shipping bills Ex.PW3/P1, Ex.PW3/A1 and Ex.PW3/E1 and he identified his signatures thereupon. During his cross examination by Ld defence counsel he stated that he is a clearing house agent (CHA) and fully conversant with the procedure and documentation of export. He stated that the four consignments were re imported by MMTC and nobody else except the exporter can reimport the consignment. He admitted that in all the four said consignments MMTC is the exporter and GR1 form was also stamped and signed by CC No. 39964/16 DRI Vs. Vipan Sehgal 10/21 MMTC and payment was also to come in the account of MMTC. He did not remember that at the time of examination of abovesaid four consignments, he was present at FPO or not. He stated that the appraiser used to assess the consignment at FPO and he used to put his stamp with date about the examination having been conducted by him and simultaneously he would put his seal on the consignment as well. He stated that the custom seal is affixed by the customs officials on the examined parcel and as per the procedure the examined and sealed packet of consignment was accompanied by custom escort whose name is mentioned in the duplicate copy of the escort document/shipping bill. He stated that he had not seen any replacement being done by any representative of Sangeeta Jewels. He stated that he was called by DRI on 15.03.1996 and he was not shown the consignment which was re imported and he only appeared before H S Swami to tender his statement.
9. PW6 Ali Mustafa stated that on 14.03.1996 he was called by the department at Air Cargo Complex in the strong room of import sheds at IGI Airport where examination reports of parcels were prepared which are already Ex.PW4/A, Ex.PW3/D4, Ex.PW3/D1, Ex.PW3/D2 and Ex./PW3/D3 bearing his signatures at point A. He stated that the parcels were in sealed condition and opened in his presence. During his cross examination by Ld defence counsel he did not remember as to how many packets were opened and examined or that he was given information that the packet under examination were reimported from Dubai. He did not remember having seen any export documents regarding the said packets.
10. PW7 Kuldeep Rai, SIO DRI stated that no documents in the present case was signed by him.
11. PW8 M S Chauhan stated that he was posted as Jewellery Expert CC No. 39964/16 DRI Vs. Vipan Sehgal 11/21 Appraiser in Customs Department and on 14.03.1996 he was called by the department at Air Cargo Complex in the strong room of import sheds at IGI Airport where examination reports of parcels were prepared which are already Ex.PW4/A, Ex.PW3/D4, Ex.PW3/D1, Ex.PW3/D2 and Ex.PW3/D3 bearing his signatures at point A. He stated that the parcels were in sealed condition and opened in his presence. During his cross examination by Ld defence counsel he deposed that consignments were reimported from Dubai. He denied that the goods and materials were changed at the time of opening of consignment by Dubai Customs before allowing reimport to India. He denied that the Sangeeta Jewels Pvt Ltd was not the exporter of the said consignment.
12. PW9 Kapil Sood deposed that Airport Authority of India was Incharge of the strong room import shed and in the year 2009 his company Celvi Delhi Cargo Terminal Management India Pvt Ltd took over the charge of Cargo Terminal and at present there is no strong room Incharge of Airport Authority of India. This witness was not cross examined by Ld defence counsel.
13. PW10 H K Sehgal deposed that at the relevant period he was posted as Inspector at Air Cargo Import, New Delhi and he was called by Assistant Commissioner of Import Shed to remain present with the examination team for the examination of parcels which was conducted on 14.03.1993 and the examination report of good/parcel dated 14.03.1996 was prepared which are already Ex.PW4/A, Ex.PW3/D4, Ex.PW3/D1, Ex.PW3/D2 and Ex.PW3/D3 bearing his signatures at point A. He stated that the parcels were in sealed condition and opened in his presence. During his cross examination by Ld defence counsel he stated that he was not told about the background of the case/consignments under examination. He did not know as to who was the exporter and under what circumstances the CC No. 39964/16 DRI Vs. Vipan Sehgal 12/21 consignments were reimported from Dubai.
14. PW11 I. S. Sidana, Retd. Manager, MMTC stated that the invoice/shipping bill no. 58075 was presented before him which was signed by him and the same is Ex.PW3/H bearing his signatures at point B. He stated that the attested copy of invoice dated 08.08.1994 is Ex.PW11/A bearing his signatures at point B. This witness was cross examined by Ld defence counsel.
15. PW12 Sandeep Kumar deposed that during the relevant period he was posted as Assistant Director, DRI, Delhi and on 15.03.1996 he issued the summons u/s 108 of Customs Act Ex.PW1/E to Vijay Pal, DGM, MMTC and on 15.03.1996 Sh. Rajesh Verma, Jewellery Appraiser appeared before him and tendered his volutary statement u/s 108 Customs Act Ex.PW4/F. He further stated that on the same day, accused Vipan Sehgal also appeared and tendered his statement u/s 108 Customs Act which is Ex.PW12/A bearing his signatures at point A. He stated that on 15.03.1996 he issued summons Ex.PW12/B to Vipan Sehgal and that on 14.03.1996 accused Vipan Sehgal addressed one letter to him Ex.PW2/C and he marked the same to SIO. He further stated that on 15.03.1996 he issued another summons u/s 108 Customs Act which is Ex.PW12/D to accused. He further stated that on 04.06.1996 and 20.03.1996 two letters were addressed to him by DGM, MMTC which are Ex.PW3/I and Ex.PW3/A. This witness was cross examined by Ld defence counsel in which he denied that the accused was falsely implicated in this case to save the jewellery appraiser and the officers of MMTC Ltd as the accused was neither the exporter of the consignment nor was he under any duty to bring the payment to India.
16. PW13 S N Verma deposed that during the relevant period he was posted as Inspector at Air Cargo Import, New Delhi and in the present case the CC No. 39964/16 DRI Vs. Vipan Sehgal 13/21 consignment was examined by him and the examination report was drawn in his handwriting on 14.03.1996 which is already Ex.PW4/A bearing his signatures at point A1. He stated that other four reports dated 14.03.1996 are already Ex.PW3/D1 to Ex.PW3/D4 bearing his signatures at point A1. He stated that before the examination the parcels were found in sealed condition and thereafter the examination was conducted in his presence and he prepared the examination report. During his cross examination by Ld defence counsel he stated that the seals on the parcels were of Indian Customs and not of Dubai Customs. He denied that the packages had the seals of Dubai Customs as all the packages were opened and examined by Dubai Customs before they were allowed to be sent back to India. He admitted that at the time of opening of consignment and examination of the same, accused Vipan Sehgal was not present at the spot. He could not tell that the examination of the export documents revealed that the contents of the invoices at the time of export were verified by the appraiser and found to be correct. He stated that the jewellery which was reimported was examined by Sh. Ali Mustafa, Jewellery Appraiser. He stated that as per shipping bill the goods were exported by MMTC. He denied that he was deposing falsely or that the consignments were opened and checked by Dubai Customs and the seals of Dubai Customs were not saved by the officials in the panchnama.
17. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
18. I have heard Ld SPP for DRI and Ld counsel for the accused and also carefully gone through the record.
CC No. 39964/16 DRI Vs. Vipan Sehgal 14/21
Finding of the Court
19. Allegation against the accused are that DRI officers gathered intelligence that accused and his firm i.e M/s Sangeeta Jewels Pvt Ltd at M7, Greater KailashI Market, New Delhi in which accused Vipan Sehgal was one of the Directors, was indulged in smuggling of gold by committing fraud in export of gold jewellery under Jewellery Export Promotion Scheme of Ministry of Commerce, Govt. of India (para 88C of the Exim Policy, 199297). It is alleged that in August, 1994 the abovesid firm exported four consignments from IGI Airport, New Delhi, declared to be of gold jewellery to Dubai vide different Airway Bills in discharge of its export obligation towards which the accused and his firm have been allotted 10kg of primary gold at International price value of Rs. 39 lacs approximately by M/s MMTC Ltd, New Delhi. It is further alleged that the abovesaid consignments remained uncleared at Dubai Airport and were reimported after one and a half year at IGI Airport, New Delhi and on 14.03.1996 the abovesaid consignments were examined and on examination the consignments were found to be containing jewellery of silver which was coated with gold colour and imitation jewellery. It is further alleged that the accused and his firm were making false declaration in respect of the contents of the export consignments and thereby accused Vipan Sehgal committed offence punishable u/s 132 and 135(1)(a) Customs Act, 1962.
20. The complainant department has alleged that the accused was one of the Directors of M/s Sangeeta Jewels Pvt Ltd and was indulged in smuggling of gold by commiting fraud in export of gold jewellery under Jewellery Export Promotion Scheme.
21. In the present case, the complainant department has relied upon various invoices vide which the gold was exported and perusal of the aforesaid CC No. 39964/16 DRI Vs. Vipan Sehgal 15/21 invoices reveal that the name of the exporter was mentioned as MMTC India Ltd. Ld counsel for the accused relied upon the notification no. 144/1993 and its amendment vide notification no. 37/1995CUS dated 16.03.1995 in support of his contention vide which MMTC was allowed to import duty free gold with an undertaking that it shall export the equivalent quantity of gold with value addition for earning foreign exchange for the country. It is pertinent to mention that PW1 H S Swami, Sr. IO, DRI who conducted the investigation of the present case deposed during his testimony that the name of the exporter was MMTC Ltd and the name of the company i.e M/s Sangeeta Jewels Pvt Ltd was written in account for column. He categorically stated that in the consignments, the exporter was MMTC Ltd and even the payment was to come in the account of MMTC Ltd as per exchange control policy. Even PW4 Rajesh Verma also stated that the payment of consignments exported goes into the bank account of which signs GR1 Form as exporter and in the present case MMTC was to receive the invoice value of the consignments and after receipt of the same MMTC would pass on labour charges to M/s Sangeeta Jewels Pvt Ltd. Further, PW5 R K Johar who was part of the investigation deposed that he was clearing house agent (CHA) and was fully conversant with the procedure and documentation of export and he categorically stated that all the four consignments in the present case were reimported by MMTC and that nobody else except the exporter could reimport the consignments. During his cross examination he admitted that in all the four said consignments MMTC was the exporter and GR1 Form was also stamped and signed by MMTC and payment was to come in the bank account of MMTC.
22. In the judgment of Sea Pearl Industries & Ors Vs. Commissioner of Income Tax, Cochin, AIR 2001 SC 590, Hon'ble Supreme Court decided CC No. 39964/16 DRI Vs. Vipan Sehgal 16/21 the question as to whether the appellant was the exporter and Hon'ble Supreme Court observed that the exporter is the person/entity in whose bank account the payment is receivable. Hon'ble Supreme Court observed that the export house may have chosen to transfer the foreign exchange to the third party under some independent arrangement but the same would not make the third party an exporter.
23. The evidence produced by the complainant department clearly reveals that MMTC was the exporter of the four consignments which were re imported later on from Dubai. Further, the complainant department has alleged that the abovesaid four consignments which were exported from IGI Airport, New Delhi to Dubai in the month of August 1994 were declared to be of gold jewellery and that the abovesaid consignments remained uncleared at Dubai Airport and were reimported after the gap of 1 ½ years to India and were received at IGI Airport, New Delhi on 14.03.1996 and after examination of said consignments the same were found to be containing imitation jewellery and jewellery of silver coated with gold colour and thereby the accused and his firm M/s Sangeeta Jewels Pvt Ltd made false declaration in respect of contents of export consignments and thereby committed the offence punishable u/s 132 & 135(1)(a) of Customs Act.
24. Therefore, as per the allegations the accused Vipan Sehgal and his company Sangeeta Jewels Pvt Ltd made the false declaration of the jewellery exported vide abovesaid consignments, however, the evidence led by the complainant department does not prove the allegation of any false declaration by the accused. Even PW4 Rajesh Verma who was the jewellery appraiser at the time of export of the consignments categorically admitted during his examination that all the four consignments were appraised by him at the time of export as produced CC No. 39964/16 DRI Vs. Vipan Sehgal 17/21 before him by accused Vipan Sehgal for appraisement and at that time all the four consignments were containing .930 fine gold jewellery and that the appraisement and sealing of parcel after that was done at FPO (Foreign Post Office). Perusal of testimony of PW Sh. R K Johar who explained the procedure for export and documentation clearly reveals that the appraiser used to assess the consignment at FPO and the appraiser used to put his stamp with date about the examination having been conducted and simultaneously the appraiser put his seal on the consignment as well. He also clarified that the custom seal is also affixed by the custom officials on the examined parcels and as per procedure the packet of consignment used to be accompanied by custom escort whose name is mentioned in the duplicate copy of escort document/shipping bill.
25. Therefore, as per evidence on record, .930 fine gold jewellery was produced by the accused before PW4 Rajesh Verma, Jewellery Expert Appraiser Customs, at the time of appraisement and export thereof to Dubai in four consignments and the said gold jewellery was duly appraised and found fit as per the description mentioned in the invoices and the said consignments were accordingly sealed by the appraiser and custom officials and were exported to Dubai. Therefore, even as per evidence brought on record by the complainant department, no false declaration by the accused Vipan Sehgal or by the company M/s Sangeeta Jewels Pvt Ltd was found to be made in the invoices at the time of export of the consignments to Dubai so as to attract the penal provisions u/s 132 & 135(1)(a) of Customs Act.
26. The complainant department has alleged that the aforesaid four consignments remained uncleared at Dubai Airport and the same were reimported by MMTC to India after a gap of 1 ½ year and when the said consignments were opened, these were found containing imitation CC No. 39964/16 DRI Vs. Vipan Sehgal 18/21 jewellery and silver jewellery coated with gold colour and therefore, it should be presumed that the accused Vipan Sehgal exported the silver and imitation jewellery instead of find gold jewellery as mentioned over the invoices and shipping bills.
27. It is pertinent to mention that PW1 H S Swami, Sr. IO, DRI who conducted the investigation of this case admitted during his cross examination that the accused was not summoned at the Airport at the time of examination of consignments. PW13 Sh. S N Verma who was the then Inspector at Air Cargo (Import), Delhi admitted during his examination that at the time of opening of consignments and examination of the same, the accused Vipan Sehgal was not present at the spot. PW2 S K Chatterjee who was posted as Commercial Intelligence, DRI stated during his cross examination that he could not say as to whether the seals on the reimported consignments were intact or tempered with at the time of their examination at the airport. He further stated that the file of this case was given to him by another official namely Sandeep Kumar and the same contained certain photographs taken during the search proceedings, however, the said photographs were not filed alongwith present complaint nor the same were placed before Sh. R K Chakraverty, the sanctioning authority for prosecution. In the judgment of Ashutosh Verma Vs. CBI, 2015 I AD (Delhi) 708, it was observed by Hon'ble Delhi High Court that deliberate withholding of important evidence is fatal to the case of prosecution.
28. Here it is pertinent to mention that criminal liability cannot be fastened upon any person on the basis of presumption as alleged by the complainant department. As per the evidence brought on record by the complainant department, no proof could be brought on record by the complainant department to establish beyond doubt that the accused CC No. 39964/16 DRI Vs. Vipan Sehgal 19/21 made the false declaration in the invoices and shipping bills regarding the contents of four consignments which were exported to Dubai.
29. As discussed above, the aforesaid consignments were reimported to India without knowledge or consent of the accused and surprisingly the same were opened and checked in the absence of the accused. The manner in which the consignments were reimported, checked and examined at IGI Airport, New Delhi creates a doubt over the role of officials involved in the examination of reimported consignments. On the one hand it is alleged by the department that the consignments were exported by the accused and he was liable for the same whereas on the other hand the accused was not even intimated or called at the time of reimport of the said consignments and their examination.
30. Ld counsel for DRI heavily relied upon the statement of accused Vipan Sehgal u/s 108 Customs Act to substantiate the case put forth by the department, however, in the given facts and circumstances, the case of the department cannot be said to have been proved merely on the basis of statement of accused u/s 108 Customs Act. Further, even perusal of the statement of the accused Vipan Sehgal u/s 108 Customs Act recorded by the IO nowhere reveals that he changed the gold jewellery with silver and imitation jewellery in the consignments. It is also pertinent to mention that the statement of accused u/s 108 Customs Act was recorded on 15 16.03.1996 which was retracted by him immediately on 16.03.1996.
31. In the case in hand, the accused has been charged for the offence of false declaration of value and contents of the four consignments which were exported, however, no evidence could be brought on record to substantiate the abovesaid allegations and the accused cannot be convicted on the basis of the bald allegations of the department that when the aforesaid consignments were reimported to India from Dubai the same were found CC No. 39964/16 DRI Vs. Vipan Sehgal 20/21 containing imitation and silver jewellery instead of fine gold jewellery as neither the reimport was done under intimation to the accused nor the accused was present at the time of examination of aforesaid consignments at the Airport.
32. It is also pertinent to mention that in the case in hand, as per the allegations the four consignments were exported by MMTC on behalf of M/s Sangeeta Jewels Pvt Ltd, however, the said company namely M/s Sangeeta Jewels Pvt Ltd is not an accused in the present case.
33. In the judgment of Aneeta Hada Vs. God Father Travels & Tours Pvt Ltd, MANU/SC/2118/2008, Hon'ble Supreme Court of India observed that when the offence is committed by the company, the Director could not have been held liable if the company was not arraigned as an accused.
34. In view of the abovesaid totality of facts and circumstances, I am of the considered opinion that the complainant department has misearbly failed to prove its case against accused Vipan Sehgal beyond reasonable doubts and the accused is entitled to be acquitted in the present case.
35. Accordingly, accused Vipan Sehgal stands acquitted of the offence u/s 132 & 135(1)(a) Customs Act, 1962.
Announced in the open court Today on 28.06.2019 (Manish Khurana) CMM/ND/Patiala House Courts New Delhi/28.06.2019 CC No. 39964/16 DRI Vs. Vipan Sehgal 21/21