Delhi District Court
Sh. H.S.Swamy vs Raghubir Singh on 6 September, 2012
IN THE COURT OF SH. GAUTAM MANAN
ADDL. CHIEF METROPOLITAN MAGISTRATE 01
PATIALA HOUSE COURTS, NEW DELHI
Sh. H.S.Swamy
Intelligence Officer,
Directorate of Revenue Intelligence,
Delhi Zonal Unit,
New Delhi ..................... Complainant
Versus
1.Raghubir Singh
S/o Sh. Pilluram,
R/o 112, Savitri Nagar, New Delhi
2.Phool Singh
S/o Bharat Ram
R/o c/o Ishwar Singh
Village - Rangapuri
P.O. Mahipalpur, New Delhi
(Proclaimed Offender)
3. Avtar Singh Bedi
S/o Sh. J.S.Bedi,
R/o No. 1901B, Tilak Nagar, New Delhi
4.J.P.Sharma
S/o Sh. M.C.Sharma
R/o Flat No. 17, Maya Apartments
Plot No. 7, Badela PhaseII, New Delhi
5.M.K.Arora
R/o E37, Greater Kailash,New Delhi
(Proclaimed Offender)
CC No. 277/1/93 Page 1 of 15
6.Dinesh Kumar
R/o Q.No. 9091, Palam Part - II
Manglapuri, New Delhi
(Proclaimed Offender)
7.Rohtas
S/o Raj Singh
R/o Village - Rangapuri
P.O. Mahipalpur, New Delhi
..................... Accused
Unique Case ID No. 02403R0002261993
CC No. 277/1/93
U/s 135(1)(a) of the Customs Act,1962
JUDGMENT U/S 355 Cr. P.C.
a) Sl. No. of the case 02403R0002261993
b) The date of commission of the 08.08.1991
offence
c) Name of the complainant Sh. H.S.Swamy
Intelligence Officer,
Directorate of Revenue
Intelligence,Delhi Zonal Unit,
New Delhi
d) Name, parentage & address of As detailed in memo of parties
accused
e) Offence Complained of Section 135(1)(a) of The Customs
Act, 1962
f) The plea of the accused and The accused pleaded not guilty and
their examination stated that they have been falsely
implicated in the case.
g) The Final order Accused No. 1, 3, 4 & 7 are Acquitted
U/s 135(1)(a) of The Customs Act,
1962
h) The date of such order 06/09/12
Date of institution of case : 03.01.1994
Date of reserving judgment/order : 18.08.2012
Date of Pronouncement : 06.09.2012
CC No. 277/1/93 Page 2 of 15
BRIEF FACTS OF THE REASONS FOR THE DECISION :
1. The present complaint has been filed alleging that accused no. 1 to 7 are involved in fraudulent evasion/ attempt at evasion of prohibitions imposed on import of goods and appeared to have committed offences punishable U/s 135 (1)(a) of the Customs Act.
2. The allegations against the accused persons are that acting on an information, the officers of the Directorate of Revenue Intelligence on 08.08.91 visited Air Cargo Complex of IGI Airport, New Delhi and they intercepted ten packages covered under Airway Bill was consisting of 10 packages landed on 28.07.1991 by flight SQ 408 which were supported by House Airway. All the packages were examined in the presence of two independent witnesses and found to contain goods of foreign origin such as car spares, cassettes, records, video camera, fax machine etc. It was noticed that one gate pass was issued against House Airway Bill consisting of six packages. On scrutiny it was noticed that the house Airway Bill number was amended to 0026353 instead of 0026352 on two packages which crossed the delivery gate against the gate pass, while rest of the packages were in the process of delivery. The CC No. 277/1/93 Page 3 of 15 goods of foreign origin such as VCRs, video camera, fax machine were in three wooden crates covered under House Airway Bill and the goods were about to be taken away without payment of duty.
3. After seizure of goods, the statement of accused no. 1 Raghubir Singh was recorded U/s 108 of the Customs Act on 09.08.1991 wherein he stated that he was working as Fork Lift Operator with M/s Sea Hawk Cargo Carriers at Air Cargo Complex, IGI Airport for past 4 years and he is getting salary of Rs. 1230/ per month. He had stated that the nature of his job is that, he lifts heavy packages from the locations and facilitate movement of cargo from godown to Exit Gate, that about 1012 days back one person by name M K Arora met him at Air Cargo complex and introduced to him a person by name Ashwani and informed him that some goods of Ashwani would be coming from abroad and that he should help him getting out the same without payment of customs duty and that he would given him Rs. 5,000/ for this job. He was told that one loader will help him to take out the goods along with some other goods.
4. On inquiry he stated that on 05.08.1991 Dinesh, loader went to him and told him that Ashwani's goods have come and showed him a CC No. 277/1/93 Page 4 of 15 big wooden crate in a location and told him that other goods are near by only and that if packages cannot be removed today the same have to be removed on his day of duty i.e. on 08.09.1991. Avtar Singh informed him that gate pass has been prepared and loader has been allotted to remove the goods.
5. Accused no. 2 in his statement dated 09.08.1991 tendered under Section 108 of Custom Act stated that he is working as loader with M/s Sea Hawk Cargo Carriers for the last 5 ½ years and he is getting wages of Rs. 32 per day; that his duty hours are 8 hours and works on shift; that he was on duty between 2pm to 10 pm on 08.08.1991. In connection with the goods under seizure he has stated that the numbers shown on the three packages from where the goods of foreign origin were recovered and seized were written by him i.e. Airway Bill. Senior Supervisor of M/s Sea Hawk Cargo Carriers that he was promised Rs. 2,000/ for this job after these goods were removed. He has further stated that after these goods were moved out, he can identify Ashwani Kumar as he visits Air Cargo Complex Office; that he does not know the address of Ashwani Kumar; he had changes the numbers on 2 packages on the earlier occasio about 1 ½ months back as per the direction of Rohtas. CC No. 277/1/93 Page 5 of 15
6. Sukhram in his statement dated 09.08.1991 stated that he was working as loader with M/s Sea Hawk Cargo Carriers since three years on a daily wages basis of Rs. 32.50 per day. That on 08.08.1991 he was on duty from 10am to 6pm at page no. 3 of Airport Cargo; that he was issued the gate pass on which Airway Bill number, house airway bill and no. of packages were written; and he made an attempt to locate the goods in the said location; that he saw on which the above said airway bill, house airway bill and lot Nos. were written as shown in the gate pass. He has stated that he took out these two packages with the help of fork lift and reached the exit gate and off loaded the goods.
7. Accused no. 3 Avtar Singh Bedi, in his statement dated 09.08.1991 stated that he was working as a Manager looking after customs clearance work with M/s Yankee Air Cargo. Accused no. 4 J.P.Sharma was the proprietor of M/s Yankee Air Cargo. As per the statement of accused no. 3, he met with Mr. M.K.Arora at Air Cargo Complex on 08.08.1991 while he was clearing the goods. As per the complaint, the accused no. 3 narrated his role in getting the goods cleared which were belonging to Mr. M.K. Arora (accused no. 5).
8. As per the complaint the accused no. 6 was involved in removal of CC No. 277/1/93 Page 6 of 15 goods by identifying the goods in association with accused no. 1 and accused no. 7 was involved in clearance of goods as he had instructed the accused no. 2 to change the numbers on packages under seizure.
9. It is alleged that all the accused persons were attempting evasion of payment of duty of the goods belonging to accused no. 5 and during the course of investigation all the relevant copies such as bill of entry, gate pass, airway bill along with house airway bill were recovered from the Customs Authorities, Air Cargo Complex New Delhi.
10.All the accused persons were summoned to face the trial, however, accused no. 2, 5 & 6 remained absent and vide orders dated 24.05.2001, they were declared Proclaimed offenders.
11.In precharge evidence the complainant examined 3 witnesses and on the basis of the material against the accused persons, the charges were framed against accused no. 1, 3, 4 & 7 for the offences punishable U/s 135 (1) (a) of the Customs Act vide orders dated 31.07.2007.
CC No. 277/1/93 Page 7 of 15
12. In order to prove its case the complainant has examined only two witnesses in post charge evidence, PW1 HS Swamy & PW2 U K Mishra.
13.In his testimony, PW1 deposed that in the year 199192 he was posted as IO DRI DZU. Complaint Ex. PW1/A has been filed by him on the basis of a sanction Ex. PW1/B which bears his signature at point A and B. Acting on an information he along with the other officers of DRI visited Air Cargo Complex, on 08.08.1991 where they intercepted 10 packages covered under AWB number of which he did not remember. In the presence of custom house agent and 2 independent witnesses they examined the packages which were found to contain huge quantity of video cassette recorders and other car accessories, car parts, etc. It was noticed that in one gate pass (the number of which he does not remember) the packages and the house airway bill number had been tampered with. They had information that it contained contraband goods. Since, as per the PW1 it was not licit import of goods and which had been misdeclared in the bill of entry, the goods valuing Rs. 59 lacs were seized and a panchnama Ex. PW1/C was drawn in this regard which in his hand writing and signed by him at point A and signatures of the two witnesses & custom house agent at point B to CC No. 277/1/93 Page 8 of 15 D respectively. The goods were handed over to Airport Authority for the safe custody as per the endorsement point E in the panchnama. The Annexure to panchnama is Ex. PW1/D. Two labels of Singapore Airlines which were found pasted on two wooden crates were also seized and same are Ex. PW1/E & F. Two labels were pasted on a paper Ex. PW1/G. He had made inquiries from DL Sharma who tendered his voluntarily statement U/s 107 of Customs Act in his own hand which is Ex. PW1/H. The panchnama of affixing the summons is Ex. PW1/I. The report in respect of regarding movement of Rohtas is Ex. PW1/J. The carbon copy of the inventory of the seized goods is Ex. PW1/ L & M. The Ld. MM, New Delhi certified the correctness of panchnama. A panchnama drawn by PW1 regarding the summons of J.P. Sharma is Ex. PW1/N.
14.PW2 U K Mishra has deposed that during the year 1991, he was working as an Intelligence Officer in the Directorate of Revenue Intelligence, Delhi Zonal Unit. On 89.09.1991 officers of Delhi Zonal Unit imported VCRs and other items valued at an around of Rs. 59,00,000/ from consignments which arrived from Singapore. In that connection on the directions of his superior people connected to the above said seizure. The verification report in this regard is Ex. PW2/A which bears his signature at point A. CC No. 277/1/93 Page 9 of 15
15.In their statement recorded U/s 313 Cr.P.C., the accused persons denied to have been involved in committing the offences. It has been stated that they have falsely implicated in the case. The accused persons preferred not to lead any evidence in defense.
As per the complaint
16.Case against Accused no. 1 Raghubir Singh:
the case against accused no. 1 Raghubir Singh is that he being fork lift operator of M/s Sea Hawk Cargo Carriers is involved in clearing the goods under seizure clandestinely on the instance of importer M.K.Arora (accused no. 5). In his examination in chief the PW1 has not deposed anything in respect of the role of accused no. 1 in commission of the offence. The testimony of PW2 is also silent in respect of the allegations made against the accused no. 1 in the complaint. In absence of any proof to link the accused no. 1 with the recovery of goods, the accused no. 1 cannot be held to be guilty in the commission of the offence as alleged by the complainant.
The case against the
17.Case against Accused no. 3 Avtar Singh Bedi:
accused no. 3, Avtar Singh Bedi is that in his voluntarily statement he admitted his acquaintance with accused no. 5 (M.K. Arora) who was earlier introduced to him by one person Ashwani Kumar. As CC No. 277/1/93 Page 10 of 15 per the case of the complainant the accused no. 3 admitted that he assisted accused no. 5 in the clearance of goods vide bill of entry no. 236187 dated 30.07.1991 and he knew the driver of the vehicle of Sh. M.K.Arora as Sanjay who has taken the delivery order in respect of goods under seizure on behalf of M.K.Arora from M/s Nishad Frieght Forwarders, New Delhi.
18.It has been argued on behalf of the prosecution that the statement of accused A.S.Bedi was recorded U/s 108 of the Customs Act wherein he has admitted to have known accused M.K.Arora after the accused M.K. Arora got the goods examined by the preventive staff and gave the accused A.S.Bedi, the bill on entry on 08.08.1991 to attend the clearance of goods through IAAI. The accused A.S.Bedi prepared the challan to pay damage charges and send accused M.K.Arora to bank for payment. The accused A.S.Bedi got prepared the gate pass after obtaining signatures of accused M.K.Arora on the same and gave the other papers and gate pass for clearance of goods and when the goods were stopped on suspicion by security staff, the accused M.K. Arora ran away in presence of accused A.S.Bedi. It has been argued that the accused A.S.Bedi has further admitted that the accused M.K.Arora had given him Rs. 10,000/ and after taking his share of Rs. 1000/ as charges of CC No. 277/1/93 Page 11 of 15 clearance, the remaining amount was returned to accused M.K. Arora after paying all the duty, fine and penalty on the good cleared by him. The prosecution submits that it is evident from the statement of accused no. 8 which is self incriminating that the accused A.S. Bedi has aided the accused no. 5 in evasion of duty and thus has committed the offence punishable U/s 135(1) (a) of the Customs Act.
19.Although the prosecution has alleged that accused no. 3 A.S.Bedi was aiding in clearance of goods without custom examination, however, the PW1 during his cross examination admitted that the accused A.S.Bedi stated before him that, he does not know anything about accused M.K.Arora and in no way he is connected with the goods recovered and seized from packages. There is no document on record to link the accused no. 3 with the seized goods. Moreover, no witness has been examined by the complainant in post charge evidence to prove the statement of accused A.S. Bedi recorded U/s 108 IPC . As such, the prosecution has failed to prove its case against the accused no. 3.
The case against accused
20.Case against accused no. 4 J.P.Sharma:
no. 4 J.P.Sharma is that as a proprietor of M/s Yankee Air Caro CC No. 277/1/93 Page 12 of 15 Agent, New Delhi, he was asked to join the investigation as accused no. 3 A.S.Bedi was working with M/s Yankee Air Caro Agent, New Delhi. The accused no. 4 did not appear for investigations. It has been submitted on behalf of complainant that since accused no. 3 A.S.Bedi in his statement recorded U/s 108 Customs Act, stated that he was working as Manager of M/s Yankee Air Caro Agent, New Delhi, therefore the said firm was involved in getting the goods cleared without the payment of the duty, therefore, being the proprietor of M/s Yankee Air Caro Agent, New Delhi, the accused no. 5 has also aided in evasion of duty.
21.Neither in the testimony of PW1 or PW2, anything incriminating has come against the accused no. 5 J.P.Sharma nor the prosecution has been able to link the accused no. 5 with the commission of the offence. Even the statement of accused no. 5 was not recorded under the provisions of 108 Customs Act and there is absolutely no evidence against him in respect of the evasion of Customs duty. Accordingly, the case against him stands not proved.
As per the complaint the case
22.Case against accused no. 7 Rohtas:
against accused no. 7 Rohtas is that being a supervisor of M/s Seahawk Carriers, he was involved in clearance of the goods under CC No. 277/1/93 Page 13 of 15 seizure, the accused no. 7 Rohtas instructed the accused no. 2 to change the number on the packages under seizure and about 1 ½ months prior to the date of incidence the accused no. 7 had got number changed on some packages on earlier occasions by giving Rs. 2,000/ to accused no. 2. It is stated that accused no. 7 did not join investigations inspite of repeated summons.
23.Neither in the testimony of PW1 or PW2, anything incriminating has come against the accused no.7, Rohtas nor the prosecution has been able to link the accused no. 7 with the commission of the offence. Even the statement of accused no. 7 was not recorded under the provisions of 108 Customs Act and there is absolutely no evidence against him in respect of the allegations led he changed the numbers of the packages which was seized by the complainant. Accordingly, the case against him stands not proved.
24. Thus, in the light of the aforesaid discussions, it is held that the prosecution is unable to bring home the guilt of the accused persons 1,3,4 & 7 for the commission of the offence U/s 135 (1) (a) of the Customs Act. The accused persons accordingly stands acquitted. Their personal bond/ surety bond stands canceled. Ordered accordingly.
CC No. 277/1/93 Page 14 of 15
25.File be consigned to Record Room till the accused no. 2, 5 & 6, who are proclaimed offenders, are apprehended. Announced in the Open Court on 06th Of September, 2012.
Gautam Manan ACMM01/New Delhi CC No. 277/1/93 Page 15 of 15