Delhi District Court
Customs vs . Ramesh Chander & Anr. Page 1 Of 11 on 24 January, 2013
IN THE COURT OF SH. GAUTAM MANAN
ADDL. CHIEF METROPOLITAN MAGISTRATE01
PATIALA HOUSE COURTS, NEW DELHI
Sh. Ashok. Sharma,
Air Custom Officer,
IGI Airport, New Delhi. ..................... Complainant
Versus
1. Ramesh Chander,
s/o Sh. Dhuni Chand,
r/o B192, Khanpur Devli Road,
New Delhi (Proclaimed Offender)
2. Naveen Kumar Kapoor,
s/o Sh.Kashi Ram Kapoor,
r/o E28, GKII, New Delhi ..................... Accused
Unique ID No. 2403R0000171989
CC No. 47/1/89
U/s 132/135(1)(a) of the Customs Act,1962
Customs Vs. Ramesh Chander & Anr. Page 1 of 11
JUDGMENT U/S 355 Cr. P.C.
a) S. No. of the case 2403R0000171989
b) Date of commission of offence 05.01.1989
c) Name of the complainant As in memo of parties.
d) Name, parentage & address of As in memo of parties.
accused
e) Offence Complained of or Section 132/135(1)(a) of
proved Customs Act, 1962
f) The plea of the accused and In his statement under section
his examination 313 Cr.P.C, the accused no. 2
stated that his statement was
recorded by the Customs Officer
in a language not known to him
and since he has returned from
Afganistan and he only knew
Persian language and he
retracted the statement by way
of his bail application and the
statement recorded by the
Customs Officers was
involuntarily and untrue.
g) The Final order Accused Naveen Kumar Kapoor
is acquitted U/s 135(1)(a) of The
Customs Act, 1962
h) The date of such order 24.01.2013
Date of institution of case : 02.02.1989
Date of reserving judgment/order : 17.01.2013
Date of Pronouncement : 24.01.2013
BRIEF FACTS OF THE REASONS FOR THE DECISION :
1. Accused are facing trial on the allegations of the prosecution that on 05.01.1989 the officers of Air Customs, Delhi intercepted the accused no.1 Ramesh Chander at IGI Airport, New Customs Vs. Ramesh Chander & Anr. Page 2 of 11 Delhi, while he was going to Dubai by Emirates Flight No. EK703 and he did not declare the foreign currency of US $ 85000 in shape of Traveler Cheques equivalent to Indian Rs.12,70,750/. The accused no.1 stated that Traveler Cheques were handed over to him by accused no.2 who was standing in the visitor's gallery in the Departure Hall. The accused no.1 pointed towards the accused no.2 and then the accused no.2 was intercepted by the Air Custom Officials. Both the accused could not produce any document for lawful export of the foreign currency and hence it is alleged that they have committed an offence punishable under Section 132/135(1)(a) of The Customs Act, 1962.
2. The complaint was filed by Sh. Ashok Sharma, Air Customs Officer against the accused on 02.02.1989 upon which the then learned ACMM took cognizance of the offences and accused were summoned.
3. Vide orders dated 24.11.1999 the accused no.1 was declared proclaimed offender. After the precharge complainant evidence, the learned predecessor of this Court framed the charge against the accused no.2 Naveen Kumar under section 135(1)(a) of the Customs Act, 1962 on 17.08.2002 to which the accused pleaded not guilty and claimed trial.
Customs Vs. Ramesh Chander & Anr. Page 3 of 11
4. The complainant has examined three witnesses in support of its case. PW1 Ashok. Sharma, (Complainant), PW2 Rampal Singh, PW3 NK Rana.
5. In his statement under section 313 Cr.P.C, the accused no. 2, denied of having any concern with the accused no.1 He further stated that it is a false, fabricated and concocted complaint case and nothing was recovered from his possession. He also stated that he was made to sign a statement in a language not known to him and he had retracted the statement attributed to him. The accused preferred not to lead defence evidence.
6. I have heard the ld Counsels for the parties and I have gone through the written submissions filed on behalf of the parties.
7. As mentioned above, the prosecution in support of its case has examined total three witnesses. PW1 Ashok Sharma is the complainant of the case who proved the complaint filed by him as Ex.PW1/A. on basis of the sanction Ex.PW1/B. The witness deposed that he intercepted accused no.1 and proved the seizure of Traveler Cheques from the accused no.1 on 05.01.1989 at IGI Airport, New Delhi, while he was going to Dubai by Emirates Flight No. EK703 as Ex.PW1/C. The Air Ticket of accused no.1, tag, stub & boarding pass Customs Vs. Ramesh Chander & Anr. Page 4 of 11 has been proved as Ex.PW1/D, E, F & G. The Visitor's Gallery pass recovered from accused no.2 is Ex PW1/H and it has been deposed that on the reverse of it the address of the accused no.2 was also written. The recovered currencies were sealed in a wooden box and on 15.01.1989, the wooden box was opened and in presence of panch witnesses the Traveler Cheques were photocopied and duplicate set of Traveler Cheques were attested. a panchnama in this regard is proved as Ex PW1/J. The Traveler Cheques were photocopied under orders Ex PW1/K of the then Collector of Customs. The paper slip dated 15.01.1989 on the seal is Ex PW1/L & paper slip over wooden box dated 05.01.1989 is Ex PW1/M. The photocopies of Traveler Cheques are Ex P1. The paper in which photocopied Traveler Cheques were packed are Ex PW1/N1 to N11.
8. PW2 Rampal Singh deposed that at the relevant time he was posted as Superintendent and he recorded the statements of accused persons as Ex.PW2/A & B dated 05.01.1989 u/s 108 of The Customs Act, 1962.
9. PW3 NK Rana, deposed that on 15.01.1989 he was posted as Senior airport Manager, IGI Airport. He along with Airport Manager RK.Sharan were called at Ground Floor and were shown a wooden box. The box was opened in their presence which was containing Traveler Cheque which were counted and a document Customs Vs. Ramesh Chander & Anr. Page 5 of 11 ExPW1/J was drawn in his presence.
10. The case of the prosecution is that on 05.01.1989 the Air Custom Officers intercepted the accused no.1 at IGI Airport, New Delhi, while he was going to Dubai by Emirates Flight No. E703 and he did not declare the Traveler Cheques of US $ 85000 equivalent to Indian Rs.12,70,750/ which was later on recovered and seized concealed in his bag.
11. PW1 Ashok Sharma was the person responsible for intercepting the accused no.1. Admittedly, there is no seizure from the accused no.2. The case against accused no.2 is that accused no.1 in his statement has named him and accused no.2 in his statement u/s 108 Customs Act himself admits having the concern with the seized Traveler Cheques.
12. PW1 intercepted accused no.1 and proved the seizure of Traveler Cheques from him. The witness deposed the photocopies of the Traveler Cheques and the receipt dated 15.01.1989 through which the Traveler Cheques were deposited with SBI, IGI Airport were taken into possession vide panchnama Ex.PW1/J. The witness during his crossexamination deposed that the recovered Travelers Cheque from the possession of accused no.1 could not produced by the complainant in the Court because the same were deposited with the Customs Vs. Ramesh Chander & Anr. Page 6 of 11 Bank on direction of Collector of Customs. The witness admitted that permission of Court was not taken before depositing the cheques with the Bank. The witness further admitted that at the time of seizure or preparation of panchnama the serial number of Traveler cheques were not recorded. The witness testified that photocopies of seized Traveler cheques were done but he does not remember whether the accused were present at that time or not. Nor he could say that the inventory of deposit of seized cheques was got signed from the accused.
13. It has been contended on behalf of the complainant that the complainant has proved that original Traveler Cheques were deposited by the complainant with SBI, IGI, Airport and thus there was no further requirement for the complainant to produce the case property in the Court. It is contended that the production of case property is merely a mode to prove the case against the accused and the physical presence of the same is not fatal to the case of the prosecution. In this regard, the complainant has relied upon Ladha Ram Vs. State of M.P. 2003 (86) ECC (MP) and Balraj Singh Vs. State 1982 Cr.L.J 1374.
14. The Hon'ble Supreme Court in Noor Aga Vs. State of Punjab AIR 2009 SC (Supp) 852 while stressing the need physical evidence in respect of the case property during the Trial in the Court Customs Vs. Ramesh Chander & Anr. Page 7 of 11 has held in para 124 that;
"......... a certificate issued under Section 110(1B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for disposal would require a clear direction of the Court in terms of Section 52A of the Act. Thirdly, the High Court failed and/or neglected to consider that physical evidence being the property of the Court and being central to the trial must be treated and disposed of in strict compliance of the law."
15. The panchnama of seizure of Traveler cheques does not mention the serial numbers of the cheques. Admittedly no permission was taken from the Court for depositing the Traveler Cheques with the Bank. Merely photocopies of the seized Traveler cheques has been produced in the Court but the signatures of accused were not obtained on the photocopies of the so called seized Traveler cheques. The Hon'ble Apex Court in para 130 supra has held that:
Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Nonproduction thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant.
16. The very fact that the serial number of Traveler Cheques are not mentioned in the panchnama Ex.PW1/C creates a doubt as to whether the photocopied Traveler Cheques were same which were Customs Vs. Ramesh Chander & Anr. Page 8 of 11 recovered from the possession of the accused no. 1 or not. Even the witness PW3 NK Rana during his examination categorically deposed that the Traveler Cheques were not photocopied in his presence and testified that the facts mentioned in panchnama ExPW1/J (wherein the Traveler Cheques being photocopied is recorded) were not told to him. Thus, a doubt is created as to whether photocopied Traveler Cheques were seized or not from the accused no.1. Once there is a cloud over the identity of the Traveler cheques then the seizure cannot be stated to be proved beyond reasonable doubt in absence of prove of lawful disposal of the case property without the information of the Court or notice to the other party.
17. The Ld. SPP for the complainant has vehemently argued that the complainant has not only proved the statement of accused no. 1 recorded under the provisions of section 108 of the Customs Act but also has proved the statement of accused no. 2, wherein the accused persons have admitted their concerned with the seized Traveler Cheques. The complainant has contended that the statements so given by accused persons are voluntary in character and there is nothing on record to show that the accused no. 2 is falsely implicated in the present matter. The statements of accused wherein they have admitted their guilt is enough a prove of the guilt of accused no.2 and he is liable to be convicted on the basis of the same.
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18. PW2 Rampal Singh deposed that on 05.01.1989, the accused no.1 tendered his voluntary statement Ex.PW2/A to him in his own handwriting and the statement of accused no. 2 Ex.PW2/B was reduced into writing by one Ram Kishan. The statement had been read over to the accused no. 2 after writing the same and the accused no. 2 admitted the same to have been correctly recorded.
19. From the testimony of PW2, it is evident that the accused no.1 had given a statement in his own hand writing, whereas for PW2, one Ram Kishan wrote statement Ex.PW2/B. PW2 during the course of his crossexamination was unable to tell the time when the statements were recorded by him nor he could tell whether it was in morning, afternoon, evening or during the night. The witness testified that he asked accused no. 2 to write his statement but as per PW2 the accused told the PW2 that he can not write the statement and the same will be written by Ram Kishan. The PW2 during the course of his crossexamination could not throw any light as to who was Ram Kishan and how the said person managed to enter the restricted area of Customs. The PW2 also did not record anything to suggest whether the accused no. 2 knew the Hindi language (in which Ex.PW2/B is written) or not.
Customs Vs. Ramesh Chander & Anr. Page 10 of 11
20. It is matter of record that the accused no. 2 had filed a bail application dated 10.01.1989 wherein the accused had submitted that his statement was involuntary and was written in a language which was not known to him. As stated above, the PW2 has absolutely failed to throw the light on the presence and identity of Ram Kishan who as per the prosecution had recorded the statement of the accused no. 2. It has also not been established by the complainant on record that the accused no. 2 did understand the language in which Ex.PW2/B was written. Moreover the statement stood retracted by the accused no.2 through his bail application. A retracted statement that too in a language which is not understood by the person making it cannot be held to be of voluntary character. Thus, the same can not be relied upon to hold the accused guilty.
21. Accordingly, in the light of the aforesaid discussions, the accused Naveen Kapoor is acquitted in the present case under Section 135(1)(a) of The Customs Act, 1962. The surety of the accused is discharged.
File be consigned to record room till accused Ramesh Chander who is a proclaimed offender is apprehended. Announced in the open court on 24th January 2013.
(GAUTAM MANAN) ACMM01: NEW DELHI Customs Vs. Ramesh Chander & Anr. Page 11 of 11