Delhi District Court
Gopal Gupta vs Dri on 14 December, 2020
IN THE COURT OF SH. DHARMENDER RANA,
ADDL. SESSIONS JUDGE-02, NEW DELHI DISTRICT
In Crl. Revision No.76/2019
Case No.317/2019
Gopal Gupta,
S/o Naresh Gupta,
R/o 36, 2nd Floor, Pocket-1,
Phase-1, Mayur Vihar,
New Delhi-110091. ... Revisionist
Versus
DRI,
Drum Shaped Building,
IP Estate, New Delhi-110002 ... Respondent
Petition received on allocation : 30.05.2019
Arguments on petition concluded : 27.11.2020
Date fixed for pronouncement : 14.12.2020
Date of pronouncement : 14.12.2020
ORDER
1. By way of the instant order, I propose to dispose off the revision petition filed on behalf of Gopal Gupta (hereinafter referred as revisionist) assailing the order dated 09.05.2019 whereby the application of revisionist moved U/s 110(4) of the Customs Act for seeking supply of documents was dismissed by the Ld. Trial Court.
2. Briefly stated: Revisionist was detained at IGI Airport while he was coming back from Dubai and was formally arrested on 26.04.2019 at 10:30 PM hrs for commission of offence punishable U/s 135 of Customs Act, 1962. He was produced before Ld. Duty Magistrate and was remanded to judicial custody on the application preferred by DRI/respondent seeking judicial custody. It is further submitted that respondent/DRI in the application for judicial remand dt. 27.04.2019 had relied upon certain documents which were seized from the personal Gopal Gupta Vs. State CR No. 76/2019 Page no. 1 of 8 custody of the revisionist when he was arrested at the IGI Airport.
On 06.05.2019, revisionist filed an application U/s 110(4) of the Customs Act, 1973 seeking copy of documents seized from him including the Panchnamas and annexures thereto. Vide order dt. 09.05.2019, Ld. Trial Court dismissed the said application of the revisionist.
3. Aggrieved by the said order dtd. 09.05.2019, the revisionist has now approached this court by filing the instant revision petition.
4. The grievance of the revisionist is that impugned order dt. 09.05.2019 is bad in law and is based on incorrect appreciation of law. It is further submitted that Ld. Trial Court has committed a manifest error on a point of law and facts resulting in miscarriage of justice and said order is void and illegal in the eyes of law as it goes against the fundamental principles of justice, equity and good conscience. It is further submitted that furnishing documents as mentioned in the application U/s 110(4) to the revisionist shall in no way hamper the trial and would not interfere with the investigation at all as the original documents are already in custody of respondent/DRI. It is further submitted that Ld. Trial Court has powers to direct the respondent to make available the copies of the documents however, Ld. Trial Court erred in holding that it does not have the power to direct the customs officer to provide copies of the documents seized.
Reliance has been placed upon Manish Lalit Kumar Bavishi Vs. Addl. Director General, DRI {2011 (272) ELT 42 (Bom)}, K. K. Patel & Anr Vs. State of Gujarat & Anr, (2000)6 SCC 195, Amar Nath & Others Vs. State of Haryana & Anr, (1977) 4 Supreme Court Cases 137 and Dina Mahabir Re-Rollers Pvt Ltd Vs. The Union of India {MANU/BH/0362/2009}.
5 Notice of the instant revision petition was served upon the respondent/DRI.
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6. Reply to the revision petition filed on behalf of the respondent/DRI. Sh. Satish Aggarvala, Ld. SPP for respondent/DRI has forcefully argued that the instant revision is not maintainable as it seeks to assail a purely interlocutory order. It is further argued that the instant revision is bereft of merits and deserves to be dismissed. It is further argued that revisionist has not quoted any provision of law under which the application has been moved before the Ld. CMM. It is further submitted that investigation is pending and copies of documents cannot be given to the revisionist particularly at this stage. It is further submitted that a copy of panchnama has already been shared and documents being material and crucial to the investigation cannot be shared till such investigation is completed. It is further submitted that judgment cited by the revisionist do not apply to the facts and circumstances of the present case. It is thus prayed that the revision is bereft of merits and deserves to be dismissed.
7. I have heard and considered the submissions made by Ld. Counsel for revisionist and also Ld. SPP for respondent/DRI and also gone through the material available on record.
8. The relevant portion of the impugned order dt. 09.05.2019 of Ld. Trial Court is reproduced herein for ready reference:-
"I have perused the abovesaid section of Customs Act, 1962 and it provides that the person from whose custody the documents are seized under sub-section 3 shall be entitled to take copies thereof or to take extract therefrom in the presence of the officer of customs. Section 110(4) Customs Act entitles the accused to make copies of the documents seized from him or to take extract therefrom in the presence of customs officer and it does not give jurisdiction to the Court to direct to custom authorities to provide the copies of the documents seized at this stage of investigation.
Hence, the abovesaid applications are accordingly dismissed and disposed of".
9. The respondent is resisting the claim of the revisionist primarily on following four counts:-
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(i) The revision petition is not maintainable as impugned order is purely an interlocutory order,
(ii) The revisionist has not quoted any provision of law under which the application has been moved before the Ld. CMM,
(iii) The investigation is still pending and supply of the documents sought by the revisionist would prejudice ongoing investigation,
(iv) Ld. CMM has no jurisdiction to direct for furnishing of the copies of the documents to the revisionist.
10. It would be apt to deal with the objections in seriatim :-
(i) The revision petition is not maintainable as impugned order is purely interlocutory order.
Before deciding the present revision petition, it would be relevant to reproduce the relevant provision of law which reads as under :
Section 397 : Calling for records to exercise powers of revision.--(1)The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situated within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by Gopal Gupta Vs. State CR No. 76/2019 Page no. 4 of 8 the same person shall be entertained by the other of them.
11. Hon'ble Apex Court in the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137 interpreting the provisions of Section 397(2) of Cr.P.C. held as under:-
"It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense.It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
12. Evidently, in the case at hand, the non-supply of documents to the revisionist substantially affects the right of the revisionist/accused. As per section 123 of the Customs Act, the onus lies upon the revisionist that the goods in question were not smuggled goods and the revisionist was well within his rights to resist the remand application of the complainant department and satisfy the Ld. Magistrate that no ground for remand is made out. Section 110(4) of the Customs Act entitles the revisionist for supply of the copies of the documents seized from the revisionist and in order to defend himself, revisionist was very much entitled to supply of the copies of documents seized from him. Any order which conclusively determines the statutory rights of the accused cannot be said to be an interlocutory order. Consequently, I cannot but disagree with the ld. Counsel for the respondent that the instant revision petition is not maintainable as impugned order is purely interlocutory.
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(ii) The revisionist has not quoted any provision of law
under which the application has been moved before the Ld. CMM.
13. It has already been observed above that the revisionist is entitled to the supply of the copies of the documents seized, U/s 110(4) of the Customs Act. Perusal of the application dt. 06.05.2019, upon which Ld. CMM passed the impugned order, reveals that in paragraph no.8 of the said application, the revisionist has specifically mentioned that in terms section 110(4) of Customs Act, 1962, the revisionist is entitled for supply of the copies.
(iii) The investigation is still pending and supply of the documents for the revisionist would prejudice ongoing investigation.
14. Except for a bald assertion the respondent department has failed to highlight as to how the supply of the copies of documents, which were seized from the revisionist, would prejudice the ongoing investigation. Further, Hon'ble Patna High Court in the matter of Dina Mahabir Re-Rollers Pvt Ltd Vs. The Union of India, MANU/BH/0362/2009 rejected the contention of the respondent department that supply of documents would prejudice the proper investigation and it has been observed herein as under:-
"10.We think that in view of the clear and categorical provision made in Section 110(4) of the said Act the above stand of the department cannot be accepted since while section 110(3) of the said Act gives authority to the proper officer to seize any document, Section 110(4) of the said Act entitles the person from whose custody the documents were seized, to gel copies of the documents seized or take extracts therefrom in the presence of an officer of customs department whereas the submission made by the learned Counsel for the respondents that it is only at the time of seizure that the petitioner could have taken Xerox copies of the documents seized is also not a practicable suggestion inasmuch us at the time of seizure the necessary facilities may not be available. More so because the intention of the Act is unambiguous that whenever a document is Gopal Gupta Vs. State CR No. 76/2019 Page no. 6 of 8 seized by the concerned authority, the authority is obliged to give copies of those documents and section 110(4) does not limit the demand to any period of time. The contention of the learned Counsel for the respondents that the investigation would be prejudiced if copes of the documents are given is also fallacious in view of the fact that if furnishing of copies of the documents seized at the time of actual seizure would not prejudice the investigation, it is not understood as to how the subsequently supply of copies of the documents by the Department would prejudice the investigation".
(iv) Ld. CMM has no jurisdiction to direct for furnishing of the copies of the documents to the revisionist.
15. Ld. Counsel for the revisionist has placed heavy reliance upon of observation of Hon'ble High Court of Bombay in the matter of Manish Lalitkumar Bavishi Vs. Addl. Dir. General, DRI, 2008 SCC Online Bom 1556. At the cost of repetition, it is once again observed that section 110(4) of Customs Act 1962 expressly confers a right upon the revisionist to seek copies/extracts of documents seized by the customs authority. Remanding the accused is a important judicial function and it is not a empty formality. The revisionist has every right to oppose the remand application of the respondent department and satisfy the Court that there is no sufficient ground justifying the remand of the revisionist to judicial or police custody. In the absence of material relied upon by the prosecution made available to the revisionists the right to oppose the remand application shall be rendered nugatory and otiose. It has been observed by Hon'ble Bombay High Court in the matter Manish Lalit Kumar Bavishi Vs. Addl. Dir. General, DRI (Supra) that:-
"6.From the language of the sub-section, it is clear that it is mandatory on the officer of Customs to make available the copies asked for. The choice of either asking for the document or seeking extract of the party concerned and not that of the officer. In other words, if any document is seized during the course of any action by an officer and relatable to the provisions of the Customs Act, that officer is bound to make available those documents. The action, therefore, of the respondents in communicating to the petitioner that documents would not be available, is clearly an act Gopal Gupta Vs. State CR No. 76/2019 Page no. 7 of 8 without jurisdiction. We fail to understand as to why statutory authority failed to discharge the duties according to law and driving the party to this Court for seeking relief" .
Ubi idi jus rendinum i.e where there is a right, there must be a remedy. The person in custody is well within his rights to bring to the notice of the Ld. CMM the infraction of his statutory rights. The Court acts as a custodian and sentinel of rights of a person in custody. "To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience" D. K Basu Vs. State of W.B. (1997) I SCC 416.
16. Consequently, I am of the considered opinion that Ld. CMM has failed to exercise the judicial powers vested in him to ensure that there is no arbitrary exercise of power by the respondent department. In my opinion, Ld. CMM was infact duty bound to ensure that statutory rights of the revisionist are not violated.
17. As a cumulative effect of the aforesaid discussion, I am of the opinion that the impugned order dated 09.05.2019 is bad in the eyes of law and is hereby set aside. The respondent department is directed to furnish copies of the documents seized from the revisionist and revision petition accordingly stands allowed.
18. Trial Court Record be sent back to the court concerned with a copy of this order.
19. Copy of the order be given dasti to all the concerned and the same may also be immediately uploaded upon the Court's website.
20. File of revision petition be consigned to the Record Room.
Announced in the open court
On 14h December 2020 (Dharmender Rana)
ASJ-02/NDD/PHC/ND
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