Delhi District Court
Cr Cases/39824/2016 on 4 December, 2021
IN THE COURT OF DR. PANKAJ SHARMA, CHIEF
METROPOLITAN MAGISTRATE,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No.39824/2016
DRI v. Pradeep Jain
U/s 135 (1)(a)(b) of the Customs Act,1962
Date of institution of case : 02.07.1999
Date of cognizance of case : 02.07.1999
Date of framing of charge : 27.10.2014
Date of reserving the Judgment : 18.03.2021
Date of pronouncement of Judgment : 04.12.2021
APPEARANCES :
Present : Sh. Satish Aggarwala, Ld. Sr SPP along with Ms.
Pooja Bhaskar, Ld. Counsel for the Department.
Ld. Counsel Mr. Abhaymani Tripathi for accused
Pradeep Jain.
JUDGMENT
S. HEADING PAGE No. No.(s) (A) THE BRIEF BACKGROUND OF THE CASE 2 (B) THE CHARGE 2-3 (C) PROSECUTION EVIDENCE 3-11 (D) STATEMENT U/S 313 CR.P.C OF ACCUSED 11 PERSON (E) DEFENCE EVIDENCE 11 (F) EVALUATION OF THE PROSECUTION 11-13 EVIDENCE (G) CONCLUSION 13 1. S. No. of the Case : CC No. 39824/2016 2. Date of Commission of Offence : 11.11.1991 3. Name of the complainant : Sh. P. N. Sharma, CC No.39824/2016 DRI v. Pradeep Jain Page 1 of 13 Intelligence Officer, Directorate of Revenue, Nepal Division, New Delhi. 4. Name, parentage & address of accused : Pradeep Jain S/o Late Mr. D.M. Lodha (Jain), R/o Flat No. 2D, 5, SR Dass Road, Kolkota-700026.
5. Offence complained of or proved : u/s 135 (1)(a)(b) of the Customs Act,1962
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
8. THE BRIEF BACKGROUND OF THE CASE :
The instant complaint has been filed by DRI through Intelligence Officer Mr. P. N. Sharma for commission of offence under section 135 (1)(a) & 135(1)(b) of the Customs Act,1962 against Mr. Pradeep Jain and another accused Raj Narain Yadav who was declared PO. The gist of the offence is that accused persons were knowingly concerned in the fraudulent evasion of the prohibitions imposed on the import of Laser Jet III Printer and Toner cartridges and duty payable thereon and had acquired possession and were concerned in dealing with the same, knowing or having the reason to believe that the same were liable for confiscation under aforesaid section of the Customs Act.
9. The Charge was framed as under : -
I, Sanjay Khanagwal, CMM/New Delhi do hereby charge you Pradeep Jain S/o Late Sh. D. M. Lodha as under :
That acting on information the officers of Directorate of Revenue Intelligence (Nepal Division), New Delhi recovered and seized two Laser Jet III Printer Hewlett Packered, Affordable Laser Printing both advanced print quality and PCL- 5, Made in Japan, Model No. HP-3348-AB worth Rs.270000/-CC No.39824/2016 DRI v. Pradeep Jain Page 2 of 13
and 30 pcs of Toner Cartridges R-64-0002-010 having Marked recorded no. 92295A worth Rs. 3,60,000/- in which you were knowingly concerned in fraudulent evasion of the prohibitions imposed on the import of said printers and Toner cartridges and was knowingly concerned in carrying keeping, concealing duty payable thereon and found in dealing with the same which you knew or had reasons to believe that the same were liable to confiscation under Section 111 of the Customs Act, 1962 and thereby committed an offence punishable under section 135 (1)
(a) (b) of The Customs Act, 1962 and within my cognizance.
And I hereby direct you to be tried by this Court for the abovesaid offence.
Accused pleaded not guilty for the charges and claimed trial.
PROSECUTION EVIDENCE In Pre-Charge Evidence, Prosecution Evidence two witnesses were examined :
10. Mr. P. N. Sharma was examined as PW-1 and he deposed in his examination in chief that in June, 1999, he was posted as IO DRI, Delhi. His complaint is Ex. PW1/A which had been filed by him in the discharge of his official duties which bears his signatures at point A and B. He filed the complaint on the basis of sanction and authorization for prosecution accorded by the then Commissioner of Customs, Mrs. Vijya Jyutshi, whose signatures at point A there and he identified the same as it has been her writing and signing.
He further stated that on 11.12.1991, acting on information, he alongwith other officers of DRI detained a railway parcel covered under railway receipt no. 687998 booked from Hawra to New Delhi, for examination. As nobody came forward to claim the said parcel on 15.11.1991, he in the presence of two witnesses examined the said parcel, which was in gunny packing. He further stated that on gunny packing the consigners name was as D. Prasad of Calcutta and Suresh Prasad CC No.39824/2016 DRI v. Pradeep Jain Page 3 of 13 of Delhi as consignee was written and inside the gunning packing one plywood and four cardboard packings were found. The examination of the plywood package resulted in the recovery of two laser Jet III Printer Howlet Packered, Affordable Laser Printing both advanced print quality and P CL-5, Made in Japan, Model No. HP-3348/AB. Examination of four card Board packages resulted in the recovery of 30 pcs. of Toner Cartridges R-64-0002-010 having marked recorded No. 92295A, Made in Japan. The package wise recovery of toner Cartridge is package no. 1 (6 pcs., package no. 2 (6 pcs.), package no. 3(8 pcs.) and package no. 4(10 pcs.). Since nobody came forward to claim the goods, they seized the two pieces of Laser Jet Printer valued at Rs.3,70,000/-and 30 pcs. of Toner Cartridges valued at Rs. Rs. 3,60,000/-under section 110 of the Customs Act, vide panchnama. He further stated that on enquiry the railway authorities produced the RR in question, which was received on 04.11.1991. The contents of the goods covered under the RR in question were written as One gunny package/ bundle said to be 'Cotton of Lotha". They also resumed the said RR. The panchnama drawn in this behalf is Ex. PW1/C, which is in his handwriting and signed by two witnesses at points A to C. The copy was given to the concerned official of Chief Parcel Supervisor, whose signatures and endorsement appears at point D. The RR is Ex. PW1/D, which is also signed by the panch witnesses in token of correctness. At this stage, it is pointed out by the SPP that the case property has not been brought in the Court.
He further stated that the complaint Ex. PW1/A has been filed on the basis of sanction and authorization Ex. PW 1/B CC No.39824/2016 DRI v. Pradeep Jain Page 4 of 13 accorded by Ms. Vijay Zutshi the then Commissioner of Customs. He identifies her signature at point A. He further stated that Mr. Y. P. Verma, the then Asstt. Director DRI has been retired since long. However, he can identify his signatures/ initials on the statement of accused Pradeep Jain at point A, the said statement is Ex. PW1/E. His signatures also appears on the letter dated 02.12.91, which addressed to the Asstt. Director, Nepal and the initials of Sh. Y. P. Verma appears at point A. In his cross-examination conducted on 24.08.2012 on behalf of the accused Pradeep Jain, he stated that he joined DRI during 1972 and remained in DRI till January, 2003. He did not remember who received the information and who has given the information. He further stated that on the directions of senior officer he had visited parcel office of New Delhi Railway Station alongwith other officials, their names he did not remember. He did not remember whom he met at the parcel office of the Railway Station. He further stated that on the basis of RR no. goods were detained for further examination. Since nobody came forward to claim the goods thereafter, the goods were examined on 15.11.1991. Parcel was opened in presence of witnesses and goods were examined. The value of goods ascertained after discussion from his colleagues. His colleagues did not provide him any chart or any invoice of similar goods showing the value. He did not conduct the inquiry under section 108 of the Customs Act,1962 as he was not empowered to record the statement. He did not record the statement of any of the witness or accused. He did not receive any document supplied by the various witnesses and accused and he had not conducted the further investigation CC No.39824/2016 DRI v. Pradeep Jain Page 5 of 13 after seizure of goods.
The following exhibit has been marked in the examination of PW-1 :
1 Complaint Ex PW 1/A 2 Sanction and authorization Ex PW 1/B 3 Panchnama Ex.PW1/C 4 Copy of panchnama signed by Ex.PW1/D concerned officials 5 Statement of accused Pradeep Jain Ex.PW1/E
11. Mr. Barinder Singh was examined as PW-2 and he stated in his examination in chief that in March, 1992, he was posted as Intelligence Officer in Directorate of Revenue Intelligence, Calcutta. He further stated that on 11.03.92, he had written statement of Sh. Naveen Shah, Prop. Of Cresent Corporation, Calcutta in terms of sec. 108 of Customs Act, when Sh. Shah tendered his statement in presence of Sh. B. N. Pal, Sr. Intelligence Officer, DRI, Calcutta. He had written the statement of Sh. Shah correctly as per his request and also as narrated by him. Sh. Naveen Shah also made endorsement in his own hand to be the correctness of the statement so written by him. The said statement is Ex. PW 2/A, portion A-1 to A-1 and A-2 to A-2 is in CC No.39824/2016 DRI v. Pradeep Jain Page 6 of 13 the hand of Sh. Naveen Shah, which bears his signatures at point A on all the seven pages and his signatures appears at point B on the last page of the statement, and signatures of Sh. B. N. Pal, the then SIO, DRI, Calcutta appears at point C on the last page before whom the said statement was tendered by Sh. Naveen Shah. He identifies his signatures being his colleague and he has seen him writing and signing in his official capacity.
He further stated that on 16.03.92, he had written statement of Sh. Raj Narain Yadav, Prop. of NRP Couriers, Calcutta, in terms of section 108 of Customs Act, when Sh. B. N. Pal, Sr. Intelligence Officer, DRI, Calcutta. He had written the statement of Sh. Raj Narain Yadav correctly as per his request and also as narrated by him. Sh. Raj Narain Yadav also made endorsement in his own hand in Hindi to be the correctness of the statement so written by him. The said statement is Ex. PW2/B portion B-1 to B-1 is in the handwriting of Sh. Raj Narain Yadav which bears his signatures at point A on all the 6 pages and his signatures appears at point B on the last page of the statement and signatures of Sh. B. N. Pal, the then SIO, DRI, Calcutta appears at point C on the last page before whom the said statement was tendered by Sh. Raj Narain Yadav. He identifies his signatures being his colleague and he has seen him writing and signing in his official capacity.
He further stated that on 03.03.92, Pradeep Jain who is present in the Court correctly identified and tendered his voluntary statement Ex. PW 2/C in his own handwriting under section 108 of Customs Act, which bears his signatures at point A on all the 7 pages, the said statement was tendered before Sh. B. N. Pal, the then SIO, DRI, Calcutta whose signatures appears CC No.39824/2016 DRI v. Pradeep Jain Page 7 of 13 at point B on the last page of the statement which he identifies and he has interrogated the accused and his signatures also appears on the last page of the statement at point C. He further stated that on 10.3.92, accused Pradeep Jain tendered his another statement in continuation to his earlier statement and the same is Ex. PW2/D in his own handwriting and he had interrogated him which bears his and own signatures at point A and B respectively.
In his cross-examination conducted on behalf of the accused Pradeep Jain, he stated that he has seen the statement Ex. PW 2/C which is not in his handwriting. He affirmed that the same was not recorded by him. He clarified that during the course of tendering the statement by Pradeep Jain before Sh. B. N. Pal, the then SIO, DRI, Calcutta, he interrogated him on certain points which were required for his clarifications/ answers. He further stated that interrogation result was simply oral not recorded in any manner. He did make investigation report as and when he interrogated any particular person. He did not remember the investigation report of the present accused. He affirmed that in case if the investigation report is made by him of the present accused and the same must be available in the record of the department. He did not know about the record of the department is available with the department and further stated that it is a matter of record. He did not know about how long accused was in the department for rendering statement being a 16 years old case. He did not remember whether the statement was recorded in the Customs House or any where else. He stated that it is not a fact and the statement was tendered voluntarily by Pradeep Jain in his own handwriting.
In Post Charge Evidence, both the witnesses were examined CC No.39824/2016 DRI v. Pradeep Jain Page 8 of 13 again.
PW1 deposed in his post charge evidence recorded on 08.01.2020 that he adopt his examination in chief which was recorded during the stage of pre-charge evidence.
In his cross-examination conducted on behalf of the accused Pradeep Jain, he stated that at the time of the alleged incident, he was working as Intelligence Officer, DRI. As Intelligence Officer, his role was search and seizure as directed by senior officers. He did not remember who received the information. The then Assistant Director, DRI directed him to visit the parcel office of New Delhi Railway Station alongwith other officers. He did not remember the name of the officials who accompanied him. He detained the goods and since nobody came forward to claim the goods, he examined the said goods which were booked under Railway receipt, on 15.11.1991. He examined the goods in presence of witnesses. He did not remember the name of the witnesses.
He further stated that the value of the goods were ascertained by his colleagues. He cannot tell on what basis his colleagues ascertained the value of goods. They did not provide any document in support of the valuation of the goods. He did not do anything to ascertain whether the printers were assembled by the components of different companies or by single company. He voluntarily stated that since it was written on the printer "Made in Japan", so he presumed that the goods were illegally imported.
He further stated that he did not receive or examine documents submitted by other witnesses as his role was limited to seizure only. He did not conduct any further investigation after CC No.39824/2016 DRI v. Pradeep Jain Page 9 of 13 seizure of goods. He did not see the case property after seizure.
PW2 deposed in his post charge evidence recorded on 15.01.2018 that he adopt his examination in chief which was recorded during the stage of pre-charge evidence.
In his cross-examination conducted on behalf of the accused Pradeep Jain, he stated that he had recorded the statement under section 18 Customs Act of Sh. Navin Shah and Sh. Raj Narain Yadav alongwith accused Pradeep Jain. He further stated that Navin Shah had seen the xerox copies of the import documents and after seeing the same he deposed the given statement. He further stated that documents were not submitted by him but photocopies of the documents of import and clearance were seen by him and deposed accordingly. He did not remember who had authenticated and verified the documents but he can say that the documents were authenticated. The authentication of documents proved that the goods were cleared under bill of entries mentioned in the statement.
He further stated that he had recorded the statement of Sh. Raj Narain Yadav, the owner of courier company. During his statement, he had seen the challan no. 28 dated 29.10.1991 issued in the name of M/s Krishna International. He did not remember whether he had investigated about the authenticity of the said challan. He affirmed that the statement of Sh. Raj Narain Yadav was correctly recorded as informed by him. He did not remember any further investigation in respect of his statement but he had endorsed his statement to be correct. He had not conducted any investigation about the genuinity of documents submitted by Sh. Navin Shah, owner of M/s PB Traders. The following exhibit has been marked in the examination of CC No.39824/2016 DRI v. Pradeep Jain Page 10 of 13 PW-2 :
1 Statement A-1 to A1 and A-2 to A-2 Ex PW 2/A 2 Statement B-1 to B1 in the hand of Sh. Ex PW 2/B Raj Narain Yadav 3 Statement of Pradeep Jain dated Ex.PW2/C 03.3.92 4 Statement of Pradeep Jain dated Ex.PW2/D 10.3.92
12. STATEMENT OF ACCUSED PERSON UNDER SECTION 313 Cr.P.C Statement of accused Pradeep Jain was recorded in Court wherein all the incriminating facts emerged during evidence were put to him distinctly, separately and specifically.
Accused gave his answers which were duly recorded.
It is pertinent to mention here that the accused person gave plausible explanation to the incriminating facts put to him while recording his statement under section 313 Cr.P.C.
13. DEFENCE EVIDENCE No defence evidence whatsoever has been led by the accused.
14. EVALUATION OF THE PROSECUTION EVIDENCE At the outset, it is on record the case property i.e. the seized Laser printer and cartridges were never produced before the Court. It is important to note that despite opportunity is given the prosecution did not bother to produce the case property before the Court for its identification as same is necessary to CC No.39824/2016 DRI v. Pradeep Jain Page 11 of 13 corroborate the fact of recovery through physical identification. It is strange that the prosecution was launched in the year 1999 and the post charge evidence was closed on 29.01.2020 and during the intergenum sufficient opportunities were granted to the prosecution to lead evidence which essentially requires production of the case property but same was not done which is a serious dent to the prosecution case. Further, no independent witness statement was recorded by the PW1 in whose presence as per him he opened the goods and examined it. PW1 could not tell the official who accompanied him to the New Delhi Railway Station at the relevant time when the parcel was seized. Further, it is not clear from the testimony of PW1 as how they ascertained the value of the goods and same appeared to be on the basis of presumptions and assumptions. No document whatsoever has been filed to support the valuation of the goods so seized by PW1. PW2 deposed that Ex.PW2/C which is the statement of accused recorded under section 108 of Customs Act was not recorded by him, as such, the veracity of such statement remained unproved in the absence of any corroborative evidence. The testimony of PW2 reveals that he did not remember as to who verified or authenticated the documents regarding import and clearance of goods. In this backdrop, the explanation furnished by accused during his statement under section 313 Cr.P.C assumes significance wherein he has stated that after receiving the verbal order for two pieces Laser Printer HP III P and 30 pieces of Toner cartridges from Mr. Ranjan Chopra he procured the printers in kit form (knock down condition) and components from M/s P.B. Traders through Mr. Naveen Shah under proper invoice which was imported by him under proper CC No.39824/2016 DRI v. Pradeep Jain Page 12 of 13 custom passed bill of entries. He further stated that he procured 30 pieces of toner cartridges from M/s H.R. Sales under proper invoice which was imported by said enterprise under proper custom passed bill of entries. Said invoices were submitted during recording of his statement under section 108 of Customs Act. After procuring of goods, he got the components of printer assembled by Mr. Dash Sharma and thereafter, handed over two printers and 30 toner cartridges to NRP Couriers under proper challan of his company mentioning M/s Team Computers as consignee with declaration that goods are printer and toner cartridges. However, when the goods were detained by DRI the courier person was carrying a bill of entries of Rashmi International which had no relation with the consignment and which as per him is due to mis-declaration of consignment by the courier company regarding the goods and consignee. It is apparent that for the said fact, no investigation has been done as such the explanation offered by accused appears to be reasonable. Accordingly, in the considered view of this Court, prosecution has failed to establish its case beyond the shadows of doubt. The case of the prosecution suffers from defects like non-production of case property, no corroboration of the proceedings.
15. CONCLUSION For the foregoing reasons, the accused is hereby acquitted for the offence under section 135 (1)(a)(b) of the Customs Act,1962.
Announced in the open court on 04.12.2021 (Dr. Pankaj Sharma) CMM/ND/Patiala House Courts New Delhi/04.12.2021 CC No.39824/2016 DRI v. Pradeep Jain Page 13 of 13