Delhi District Court
Customs vs . Imad Ali Hussain Ali Page 1 Of 11 on 18 October, 2012
IN THE COURT OF SH. GAUTAM MANAN
ADDL. CHIEF METROPOLITAN MAGISTRATE 01
PATIALA HOUSE COURTS, NEW DELHI
Mr. Pradeep Sharma,
Air Customs Officer,
IGI Airport,
New Delhi ..................... Complainant
Versus
1. Imad Ali Hussain Ali Jamil Ahmed,
s/o Ali Hussain
r/o Hay Fast Street,
Building no. 21, Flat no. 12,
Baghdad (Iraq)
(convicted vide order dated 29.04.1997)
2. Haythem M. Hassan Saffer,
s/o Mohd. Hassan,
r/o Mohalla 929, Zukat 16,
House 16, Baghdad (Iraq)
(convicted vide order dated 29.04.1997)
3. D. Rana @ Dharmesh Perill,
s/o Sh. Hari Chand,
r/o 756, Prem Gali Subhash Road,
Gandhi Nagar, Delhi ..................... Accused
Unique Case ID No. 02403R0005601996
CC No. 1/96
U/s 132 and 135 of The Customs Act,1962
Customs Vs. Imad Ali Hussain Ali Page 1 of 11
JUDGMENT U/S 355 Cr. P.C.
a) S.No. of the case 02403R0005601996
b) The date of commission of 04.04.1996
the offence
c) Name of the complainant Mr. Pradeep Sharma,
Air Customs Officer,
IGI Airport, New Delhi
d) Name, parentage & address As per memo of parties.
of accused
e) Offence Complained of or Under Section 132, 135(1)(a) and
proved 135 (1) (b)of The Customs Act,
1962
f) The plea of the accused and In his statement under section 313
his Cr.P.C, the accused no.3 stated
examination that nothing incriminating has
been effected from him and he has
no concern with accused persons.
g) The Final order Accused 1 & 2 are convicted and
accused no.3 D. Rana @ Dharmesh
Perill is acquitted
h) The date of such order 18.10.2012
Date of institution of case : 30.05.1996
Date of reserving judgment/order : 18.10.2012
Date of Pronouncement : 18.10.2012
BRIEF FACTS OF THE REASONS FOR THE DECISION :
1. Accused persons are facing trial on the allegations of the prosecution that on 04.04.1996 while leaving for Amman by Flight No. RJ193 accused no.1 Imad Ali Hussain Ali was found in possession of foreign and Indian currency equivalent to Rs.10.97 lacs (approx.) which he was attempting to illegally export out of India and which he had received from accused no.2 Haythem M. Hassan Saffer Customs Vs. Imad Ali Hussain Ali Page 2 of 11 on 27.3.1996 in Sun City Hotel Channa Market, New Delhi. The accused no.3 was knowingly concerned in violation of the prohibition imposed under Section 13(2) of FERA, 1973 read with Section 11 of the Customs Act, 1962 and thereby committed an offence punishable under Section 135(1)(a) of the Customs Act, 1962.
2. The accused D. Rana @ Dharmesh Perill is further facing trial on the allegation that on 27.3.1996 he had purchased 2.19 kgs of Gold from accused Imad Ali Hussain Ali and Haythem M. Hassan and prior to that he had purchased about 16 kgs. of Gold valued at Rs. 96 lacs from said Imad Ali Hussain Ali during the period 14.8.1995 to 12.3.1996 knowing and having reasons to believe that the said Gold brought by him was liable to confiscation u/s 111 (d) of the Customs Act, 1962 and thereby he committed an offense punishable under Section 135(1) (b) of The Customs Act.
3. The complaint was filed by Mr. Pradeep Sharma, Air Customs Officer, IGI Airport, New Delhi on 30.05.1996 upon which the cognizance of the offence was taken and accused was summoned.
4. The accused no.1 & 2 have already been convicted vide order dated 29.04.1997. After the precharge complainant evidence, Customs Vs. Imad Ali Hussain Ali Page 3 of 11 the charge against the accused D. Rana @ Dharmesh Perill under Section 135 (1)(a) and 135(1)(b) of The Customs Act, 1962 was framed on 03.02.1997 to which the accused pleaded not guilty and claimed trial.
5. The complainant examined five witnesses in support of its case.
6. In statement under section 313 Cr.P.C, the accused stated nothing incriminating was effected from him and he has no concern with accused persons. He claimed innocence.
7. I have heard the final arguments and perused the record.
8. PW1 Pradeep Sharma (Complainant) deposed that on 04.4.1996 he was posted as ACO preventive in the international departure hall, IGI Airport, New Delhi. He apprehended the accused no. 1 Imad Ali Hussain Ali. with US $ 1200. The baggage of the accused was examined which resulted in the recovery of foreign currency of various countries of various denomination, which was equivalent to US $32747 dollar and other foreign currencies like Iraqi Dinar, Yemen Dinars etc. all equivalent to Indian Rs. 10,97,000/ approximately. The said currency was therefore, seized along with Customs Vs. Imad Ali Hussain Ali Page 4 of 11 the documents vide Panchnama which has been proved as Ex.PW1/B. The three note books have been proved as Ex.PW1/C and Ex.PW1/E and the file containing the 80 loose sheet 1 to 80 have been proved as Ex.PW1/F. The case property has been proved as Ex. P1.
9. PW2 D.K. Sharma deposed that he was on duty in the International departure hall on the night of 3/4.4.96 and during interrogation the accused Imad Ali Hussain when asked as to from where he (accused no.1) has procured the currency to which the accused no. 1 replied that he had sold gold which he had smuggled on 26.3.1996 to accused no. 3 D.R. Rana and from where he had received the recovered foreign currency. He further gave details of his previous visits in India and the transaction made by him with accused D. Rana. Accused no.1 as a result of interrogation and having confronted with his account books and documents made his statement which has been proved as Ex.PW2/A. As a result of disclosure made by accused no. 1 about his companion, he issued summons u/s 108 of the Customs Act, 1962 to accused which was duly acknowledged by him. The summons have been proved as Ex.PW2/B. He also issued summons to accused no. 3 D. Rana which has been proved as Ex.PW2/C and deposed that the accused no.3 did not appear in compliance of summons.
Customs Vs. Imad Ali Hussain Ali Page 5 of 11
10. PW3 Madan Mohan deposed that on 04.04.1996 in the morning accused no.1 was apprehended while leaving for Amman and foreign currency equivalent to Indian Rs.10.97 lacs was recovered from h m. As a result of disclosure made by the accused no.1, accused Haythem was located who was staying in Sun City Hotel, Chana Market, Karol Bagh, New Delhi. Accused no.1 was summoned and interrogated and made a statement which has been proved as Ex.PW3/A. During interrogation accused Haythem voluntarily surrendered Indian Rs.6,150/ stating to be the sale proceeds of smuggled gold which was given to him and his companion by accused no. 3 D. Rana on 27.3.1996. The money was seized vide panchnama Mark X. In further investigation he issued 05 summons dated 10.4.1996, 18.4.1996 (two summons), 27.4.1996 and 08.5.1996 which were duly acknowledged by Sumit s/o Harbans Lal, Rajesh Kumar, Miss Rakhi d/o D. Rana, Veenu w/o D. Rana, the said summons have been proved as Ex.PW3/B to Ex.PW3/B4. He got the stay of accused no.1 verified from the record of Sun City Hotel, Chana Market, Karol Bagh S.K. Khanna, ACO Preventive. He also got the telephone number of accused no. 3 D. Rana verified from the telephone department. Accused no. 3 D. Rana did not comply with the summons sent by him and his colleague Sh. D.K. Sharma for which a separate complaint has been filed against him. Customs Vs. Imad Ali Hussain Ali Page 6 of 11
11. PW4 Manmohan Pal deposed that in the year 1996 he was Managing Director of Hotel Sun City, Apartment, 11A/34, Channa Market, WEA, Karol Bag, New Delhi. The witness proved his statement given during investigation as Ex PW4/A and the record of the stay of accused in Sun City Hotel 19.8.1995 to 26.8.1995 as Ex.PW4/A1. He further deposed that accused no.1 stayed in their hotel from 05.9.1995 to 13.9.1995, as per Ex.PW4/2 and accused no.1 stayed in their hotel from 28.11.1995 to 04.12.1995 as per Ex.PW4/3.
12. PW5 Gyan Chand, Section Supervisor from the office of MTNL testified that in response to an inquiry with regard to telephone no. 2212447, a reply was sent by the department as Ex. PW5/A. In reply to another inquiry with regard to telephone no. 3279618 as per the office note it was disclosed that this telephone stands in the name of Kulwant Singh at 2158, Dhobiwara , Kinari Bazar, Delhi 110006.
13. On conclusion of the evidence led on behalf of the complainant, the statement of accused no. 3 D. Rana was recorded U/s 313 Cr.P.C. wherein the accused no. 3 stated that he had no concern with accused no. 1 and 2 and their activities. The accused no. 3 denied to have any concern with the telephone numbers or the purchase of gold for foreign exchange. Although the accused stated Customs Vs. Imad Ali Hussain Ali Page 7 of 11 he will lead evidence in defence but no evidence has been led by accused no. 3.
14. I have heard the Ld. Counsels for the parties and I have gone through the record.
15. In the complaint it has been specifically alleged against the accused no. 3, that he was concerned with the gold illegally brought in India by accused no. 1 & 2 and accused no. 1 & 2 sold the gold to accused no.3 who gave them foreign and Indian currency. It has been alleged that scrutiny of note books and documents recovered from the possession of accused no.2 revealed the accounts of gold sold to the accused no.3. It has been further alleged that on prior visits accused no.1 & 2 had been selling smuggled gold to accused no.3.
16. In order to prove the allegations made against the accused no. 3, the complainant has led its evidence by examining 5 witnesses. PW1 & 2 are the witnesses in respect of the seizure of foreign currency from accused no. 1 & 2 and they have not deposed anything in respect of the role of accused no. 3 in purchasing of the gold from accused no. 1 & 2 except that in their statements recorded U/s 108 Customs Act, the accused no. 1 & 2 disclosed that they had been selling gold to accused no. 3.
Customs Vs. Imad Ali Hussain Ali Page 8 of 11
17. PW3 issued the summons to the accused no. 3 D. Rana and also searched the residential cum business premises of accused D.Rana but as per him nothing incriminating was recovered from accused no.3.
18. PW4 Mohinder Pal Managing Director of Hotel Suncity has been examined to establish the linkage between accused no. 1 & 2 with accused no. 3, however, this witness categorically deposed in his examination in chief that he cannot identify the accused D.Rana as a person who met the accused no. 1 and 2 in the Hotel Suncity. The witness categorically deposed that the hotel does not keep the record of the visitors who come to visit the residents of hotel. As such there is nothing in the testimony of PW4 which connects the accused no. 1 & 2 with accused no. 3.
19. Even the PW5 in his examination in chief disclosed that two telephone numbers were installed but as per his testimony none of these belongs to accused no. 3 D. Rana. It is evident that the testimony of PW5 does not help the cause of the complainant to establish the role of the accused no. 3 in purchase of the gold. Customs Vs. Imad Ali Hussain Ali Page 9 of 11
20. It is noteworthy that none of the witnesses have been able to establish any linkage between accused no. 1 & 2 with accused no. 3 and even the documents produced on behalf of the complainant does not prove that the accused no. 3 used to purchase the smuggled gold from the other accused persons.
21. It has been contended on behalf of the complainant that in the statements of accused persons recorded under the provisions of Section 108 of the Customs Act, the role of the accused no. 3 to purchase the smuggled gold stands established and on the very basis of the statements Ex. PW2/A, the accused no. 3 is liable to be convicted. It is now well settled law that statements recorded U/s 108 of the Customs Act, cannot be the sole criteria for convicting a person, until and unless there is substantial corroborative evidence with it. As discussed above, there is absolutely no evidence against the accused no. 3 to establish his role of having concern with smuggled gold, The alleged smuggled gold has not been recovered. Even the telephone numbers gathered by the complainant from the documents of accused no. 1 & 2 does not belong to the accused no. 3. No incriminating document has been found in possession of accused no. 3 when his residential/ business premises was searched by the officials of complainant. Therefore, the accused no. 3 D. Rana is Customs Vs. Imad Ali Hussain Ali Page 10 of 11 entitled to be acquitted in the present matter for lack of evidence against him. Accordingly, the accused no. 3 D. Rana stands acquitted and his surety stands discharged.
File be consigned to Record Room.
Announced in the open court on 18th October, 2012.
(GAUTAM MANAN) ACMM01: NEW DELHI Customs Vs. Imad Ali Hussain Ali Page 11 of 11