Delhi District Court
Customs vs . Naresh Kumar Jain & Ors. Page 1 Of 11 on 5 December, 2013
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IN THE COURT OF SH. AMIT BANSAL, CHIEF
METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS,
NEW DELHI
Sh. R.S. Dhattarwal,
Air Custom Officer,
IGI Airport,
New Delhi. ..................... Complainant
Versus
1. Naresh Kumar Jain
2740,Roshanpura, Nai Sarak,
Delhi.
( Proceedings against him have been abated
vide order dated 11.01.1985 )
2. Abdul Aleem
112, Dadu House,
Ramganj Bazar,
Jaipur.
3. Abid Saghier,
Proprietor,
M/s House of Arts,
112, Dadu House, Ramganj Bazar,
Jaipur.
4. Suleman
s/o Sh. Ismail Khan,
M/s Arts Gallery,
Subhash Chownk,
Jaipur.
( Proceedings against him have been abated
vide order dated 08.03.2013)
5. Azzruddin ( Ajju Nawab ),
E-69, Ambawadi,
Jaipur. ..................... Accused
Unique Case ID No. 02403R0002501994
CC No. 19/1/94
U/s 135(1)(a) of the Customs Act,1962
Customs Vs. Naresh Kumar Jain & Ors. Page 1 of 11
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JUDGMENT U/S 355 Cr. P.C.
a) Sl. No. of the case 02403R0002501994
b) The date of commission of the 24.06.1993
offence
c) Name of the complainant Sh. R.S. Dhattarwal,
Air Custom Officer,
IGI Airport,
New Delhi.
d) Name, parentage & address of 1. Naresh Kumar Jain
accused persons 2740,Roshanpura, Nai Sarak,
Delhi.
( Proceedings against him have been
abated vide order dated 11.01.1985 )
2. Abdul Aleem
112, Dadu House,
Ramganj Bazar,
Jaipur.
3. Abid Saghier,
Proprietor,
M/s House of Arts,
112, Dadu House, Ramganj
Bazar, Jaipur.
4. Suleman
s/o Sh. Ismail Khan,
M/s Arts Gallery,
Subhash Chownk,
Jaipur.
( Proceedings against him have been
abated vide order dated 08.03.2013)
5. Azzruddin ( Ajju Nawab ),
E-69, Ambawadi,
Jaipur.
Customs Vs. Naresh Kumar Jain & Ors. Page 2 of 11
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e) Offence Complained of or Under Section 135(1)(a) of The
proved Customs Act,1962
f) The plea of the accused In their separate statements under
persons and their examination section 313 Cr.P.C, accused persons
denied all the material incriminating
circumstances appearing in the
prosecution evidence against them
and stated that their statement was
recoded at their back, the
sanctioning authority has granted the
sanction mechanically and without
due application of mind. The
accused persons also stated that it is
a false case and they have been
falsely implicated in the present
case.
In their statement u/s 313 Cr.P.C the
accused persons preferred not to lead
defence evidence.
g) The Final order Accused Abdul Aleem, Abid
Saghier and Azzruddin ( Ajju
Nawab ) are acquitted u/s 135(1)
(a) of The Customs Act, 1962.
h) The date of such order 05.12.2013
Date of institution of case : 17.02.1994
Date of reserving judgment/order : 05.12.2013
Date of Pronouncement : 05.12.2013
BRIEF FACTS/ STATEMENT OF THE REASONS FOR THE
DECISION :-
1. The accused Abdul Aleem, Abid Saghier and Azzruddin @ Ajju Nawab are facing trial on the allegations of the prosecution that on Customs Vs. Naresh Kumar Jain & Ors. Page 3 of 11 4 24.06.1993 the officers of Customs intercepted and seized certain goods under the reasonable belief that the same were antiques from one Hussain Khalaj holder of Iranian Passport No. 3504938 at IGI Airport, New Delhi who was to leave for Dubai by flight no. EK 701 and during the course of inquiries in respect of the goods seized from him and also on the basis of opinion from Archaeological Department it was revealed that out of 160 items recovered from Hussain Khalaj 89 items were antiques which were being attempted to be exported out of India illegally by the said Hussain Khalaj and on further inquiries made in this behalf it was revealed that the accused were concerned in illegal export of the said antiques in violation of the restrictions / prohibition on the export thereof as the same was being exported after purchasing the same from them and thereby they committed an offence punishable u/s 135(1)(a) of The Customs Act, 1962.
It is pertinent to mention here that during the trial the proceedings against the accused Naresh Kumar Jain were abated vide order dated 11.01.1985 and proceedings against the accused Suleman were abated vide order dated 08.03.2013.
2. The complaint was filed by Sh. R.S. Dhattarwal, Air Custom Officer, IGI Airport, New Delhi against the accused persons on 17.02.1994 upon which the then learned ACMM vide order dated Customs Vs. Naresh Kumar Jain & Ors. Page 4 of 11 5 17.02.1994 took cognizance of the offences and accused persons were summoned. Copy of complaint and documents were supplied to the accused free of costs.
3. After the pre-charge complainant evidence, the learned predecessor of this Court framed the charge against the accused Abdul Aleem, Abid Saghier, Suleman ( Since expired) and Azzruddin @ Ajju Nawab under Section 135(1)(a) of the Customs Act, 1962 on 29.01.2007 to which they pleaded not guilty and claimed trial.
4. The complainant has examined total five witnesses in support of its case i.e. PW-1 Sh. S.R. Diwan, PW-2 Sh. R.S. Dhattarwal (Complainant), PW-3 Sh. V.C. Sharma, PW4 Sh. Rajvir Singh and PW-5 Sh. Niranjan.
5. In their separate statements under section 313 Cr.P.C, accused persons denied all the material incriminating circumstances appearing in the prosecution evidence against them and stated that their statement was recoded at their back, the sanctioning authority has granted the sanction mechanically and without due application of mind. The accused persons also stated that it is a false case and they have been falsely implicated in the present case.
Customs Vs. Naresh Kumar Jain & Ors. Page 5 of 11 6
In their statement u/s 313 Cr.P.C the accused persons preferred not to lead defence evidence.
6. I have heard the final arguments and carefully perused the record.
7. As per record, the prosecution has examined total five witnesses in support of its case.
PW-1 Sh. S.R. Dewan deposed to the effect that in August, 1993 he was posted at IGI Airport and Hussain Khalaj tendered before him his voluntarily statement u/s 108 of The Customs Act, 1962 which has been proved as Ex PW1/B. PW-1 in his cross examination inter alia deposed that he did not remember whether Hussain Khalaj was got identified by him through some person and also did not remember if he had made any inquiry before starting the statement u/s 108 of Khalaj Hussain if he properly understood English and Hindi language. He also admitted that he was not an expert in antiquity ( old things ). He further admitted that he did not tally or made any inquiry regarding the goods mentioned in the panchnama.
PW-2 is the complainant of the case and the complaint as filed in this case has been proved as Ex PW1/A. The sanction for prosecution has been proved as Ex PW1/B. He deposed to the effect that Customs Vs. Naresh Kumar Jain & Ors. Page 6 of 11 7 on 24.06.1993 he intercepted Hussain Khalaj at IGI Airport while he was going to Dubai and the search resulted in seizure of some antiquities vide panchnama proved as Ex PW1/C. He further deposed that on 29.06.1993 the photography of the seized items was conducted by Archaeological department, Janpath for further proceedings, however, the same could not be completed and the seized items were again seized vide panchnama proved as Ex PW1/D. He deposed that on 30.06.1993, the photography of the remaining seized goods was completed and panchnama drawn in this regard has been proved as Ex PW1/E. He further deposed that on 22.04.1993 the objects / items contained in grey colour suit case( of Hussain Khalaj ) were examined by the DG, ASI in his office at Janpath and panchnama in this regard has been proved as Ex PW1/F. PW-2 deposed that the accused no. 2 ( Abdul Aleem ) appeared on 29.09.1993 before Supdt. (P) and identified 16 books from the seized items which were sold to Hussain Khalaj on 22.06.1993 for a consideration of Rs. 15,000/- a panchnama in this regard has been proved as Ex PW2/G. One large Holy Quran book has been proved as Ex P-1 and the 88 pieces of antiques have been collectively proved as Ex P-2.
As per record, the prosecution examined Mr. V.C. Sharma, Mr. Rajveer Singh and Mr. Niranjan as PW-3, PW-4 and PW-5 in support of their case, however, none of the said witnesses were examined after the framing of charge i.e in post charge evidence. In these Customs Vs. Naresh Kumar Jain & Ors. Page 7 of 11 8 circumstances, the testimony of PW-3 to PW-5 as recorded in pre charge evidence can not be read in evidence at all either in favour of the prosecution or against the accused persons as the accused persons did not get the opportunity to cross examine the said witnesses after charge. It is pertinent to note that the accused persons at the stage of framing of charge gave their consent for cross examination of the witnesses, as earlier examined in pre charge evidence, during post charge evidence. My views are substantiated by judgment of Hon'ble Delhi High Court in case titled as Ripen Kumar Vs. Department of Customs 2001(1) JCC(Delhi) 47.
8. The case of prosecution against the accused persons is that 89 antiques items were recovered and seized from one Hussain Khalaj which were being attempted by him to be exported out of India illegally and the accused persons facing trial in this case were concerned in illegal export of the said antiques.
Perusal of the testimony of PW-1 shows that the said witness has not deposed even an iota against the accused persons facing trial in this case. It is further pertinent to note that said Hussain Khalaj is neither an accused in this case nor has been examined as a witness by the prosecution in support of its case. As far as PW-2 is concerned he has Customs Vs. Naresh Kumar Jain & Ors. Page 8 of 11 9 only deposed against the accused no. 2 Abdul Aleem to the effect that he appeared on 29.09.1993 before Supdt. (P) and during the course of inquiry he inter alia identified 16 books from the seized items which were sold to Hussain Khalaj on 22.06.1993 for a consideration of Rs. 15,000/- and a receipt was issued on the letter head of his firm. In this regard it is pertinent to note that the said Supdt. (P) has not been examined by the prosecution and hence the said testimony of PW-2 carries no value and can not be relied upon. Further, as mentioned above, Hussain Khalaj is neither an accused in this case nor has been examined as a witness by the prosecution in support of its case. It is also pertinent to note that the prosecution has filed to prove on record any statement u/s 108 of The Customs Act, 1962 of any accused facing trial in this case and it is also not the case of prosecution that any antiquity item was recovered or seized from any such accused facing trial in the court in the present case. In these circumstances, the prosecution has miserably failed to prove any circumstance against the accused persons to prove beyond reasonable doubt that they were concerned in illegal export of the above said antiques as recovered from Hussain Khalaj. The benefit of doubt in these circumstances goes in favour of the accused persons who are entitled to acquittal in the present case.
Customs Vs. Naresh Kumar Jain & Ors. Page 9 of 11 10
9. PW-1 inter alia deposed in cross examination that he was not an expert in antiquities ( old things ) and PW-2 also deposed in his cross examination that he had no knowledge with regard to the antiquity. PW-2 further deposed in cross examination that there is no letter showing the opinion of the antiquity and admitted that there was no letter from the Archaeological department on the judicial file. In this regard, the ld. Counsel for accused persons during final arguments referred to the judgment of Hon'ble Delhi High Court in case tilted as Directorate of Revenue Intelligence vs. Girish Dhawan 2006(2) JCC 805 and argued that there can not be any prosecution under the Customs Act for violation of The Antiquities & Art Treasures Act, 1972.
I find merit in the submissions of ld. Counsel of the accused persons as in the above said case { 2006(2) JCC 805 } the Hon'ble High court of Delhi while referring to one other decision of Hon'ble Delhi High Court in Dr. V.J.A. Flynn Vs. S.S. Chauhan & Another : 1996 JCC 424 held inter alia as under :-
"4............................................................................................ ..................Unfortunately, upon a bare reading of the said decision in the case of Dr. V.J.A. Flynn ( supra ) I find that, after dealing with the provisions of Antiquities and Art Treasures Act, 1972 quite extensively, this Court came to the conclusion in para 6 of the said decision that Customs Vs. Naresh Kumar Jain & Ors. Page 10 of 11 11 provisions of the Customs Act, 1962 after the introduction of Antiquities and Art Treasures Act, 1972 (in replacement of older Act of 1947) are now applicable for confiscation and penalty and not for prosecution whenever export of antiquities is in issue. The Court came to the clear conclusion that "[A bare reading of section 25 clearly shows that the prosecution is not permitted under the Customs Act for any violation of the provisions of the Antiquity Act for which a separate machinery is provided under the Antiquity Act itself. "
In the present case also, the issue of antiques is concerned and in view of the above said judgment of Hon'ble Delhi High Court, the prosecution is not permitted under The Customs Act, 1962. The accused persons are thus entitled to acquittal in the present case.
10. In view of the above said discussion, it is held that the prosecution has failed to prove the charge against the accused persons and therefore, the accused Abdul Aleem, Abid Saghier and Azzruddin ( Ajju Nawab ) are acquitted u/s 135(1)(a) of The Customs Act, 1962 in the present case. File be consigned to record room. Announced in the open court on: 05.12.2013 ( AMIT BANSAL) Chief Metropolitan Magistrate, Patiala House Courts, New Delhi 05.12.2013 Customs Vs. Naresh Kumar Jain & Ors. Page 11 of 11