Vipan Kumar Kapoor vs S.M. Ali And Ors.
1991 Latest Caselaw 581 Del

JUDGMENT

R.L. Gapta, J.

(1) Petitioner has applied for grant of ball. He has been booked by the Directorate of Revenue Intelligence (DRI for short) under Section 135(1)(b) of the Customs Act, 1962. The allegations In the complaint lodged against the petitioner and 8 others are that acting on a specific intelligence, officers of the Dri intercepted truck No. RRN- 5254 on 21.1.91 between 4-5 A.M. just out side the factory situate at A-71, Industrial Area, G.T. Karnal Road, Delhi-33. Two drivers and three helpers were found in the truck at that time. Besides them, three other persons, namely, petitioner, Sanjay Verma and Mohsin Anwar were also present near the truck to take delivery of the goods loaded in it. On seeing the officers, the petitioner who tried to run away was over-powered after a brief scuffle. The truck was taken to the office complex of the Dri at I.P. Estate. Its search yielded 25 slabs of foreign silver wrapped in Gunny bags and kept concealed in the floor of the truck with a thick layer of soil. Each slab weighed about 30 Kg. and the total value of the silver recovered was estimated at Rs. 57,95,912. The slabs were found to be of 99.50 purity.

(2) Statements of the petitioner and others were recorded under Section 108 of the Customs Act. The petitioner in his statement is alleged to have said that no particular day while Dri officers were taking search of the truck, his brother Satish ran away from there. He also tried to run away but he was over-powered. Regarding his complicity in the offence of smuggling foreign silver, he stated that he had met Javed co-accused in his office on 20.1.91 to inform him about the place where the smuggled silver slabs were to be un-loaded. Javed had sent the co-accused Mohsin Anwar with him. He pointed out the Sanjay Garments Factory at A-71, Industrial Estate G.T. Kranal Road where he had already made arrangements with Harish Verma, co-accused about the unloading and keeping of silver slabs. He further stated that while disposing of the silver later on he would have made good profit from the transaction. Some similar Incriminating statements were made by the other co-accused persons. It may be noted that the bail application of Sanjay Verma was dismissed by me In Cr. M.(M) 641/91 on 8.4.91.

(3) I have beared arguments advanced by learned counsel for the parties. The first submission made on behalf of the petitioner is that according to their own allegations In the complaint, it Is admitted that the petitioner was over powered while running and therefore, a presumption should be drawn that his alleged statement under Sec. 108 of the Customs Act was obtained as a result of coercion pressure and undue influence exercised upon him by the officers of DRI. It is then contended that the petitioner even refracted from the alleged confessional statement and, therefore, the prosecution prim facie having no other evidence to rely upon could not be successful in securing the conviction of the petitioner. This, according to the learned counsel, was also a good reason for allowing bail to the petitioner. It is also argued that the prosecution has not collected any evidence to indicate that the silver was of foreign origin and that It was smuggled into India after 8.6.90. the date on which Notification No. 28 of 1990 (Customs) was Issued by the Central Government bringing silver also within the purview of Section 123 of the Act. Learned counsel has also argued that the manner in which the statement of the petitioner is alleged to have been recorded and the repeated use of the world Videshi appended to the silver suggests that the statement was recorded on the dictation of some officer of DRI. My attention has also been drawn to the order of grant of bail by him in the case of Hemant Kumar Ishwar Dass Sanghvi v. Customs, Crl. Misc. (M) No. 748/91. Thus It is contended that the petitioner was also entitled to grant of bail. All the aforesaid arguments have been countered on behalf of the respondent.

(4) So far as the first submission is concerned, it is to be noted that according to the case of the prosecution the petitioner had tried to run away from the spot and, therefore, it led to the necessity of his being nabbed at the spot. By the use of the wrod, over-powered in the complaint, it cannot be understood by any stretch of imagination that this over-powering was meant to exercise any pressure or undue influence upon the petitioner. Its simple meaning as understood In ordinary parlance would be that the attempt of the petitioner to run away from the spot was foiled by the officers of DRI. Therefore, prima facie, it is not possible to conclude on the basis of the aforesaid submission that the statement of the petitioner was recorded by exercise of any undue influence etc. Regarding the second submission, Them of the view that it is not possible to equate the statement of the petitioner and other co-accused recorded during enquiry under Section 108 of the Customs Act with a confessional statement as understood in Section 25 of the Indian Evidence Act. The reason is that at the time such statements are recorded, neither the accused persons from whom an enquiry is made stand in the character of the accused nor the officer who interrogates such a person can be brought within the definition of a police officer. It has been so laid down by a constitution Bench of Hon'ble the Supreme Court in the celebrated case of Ramesh Chandra Mehta v. State of West Bengal, . The following observations are quoted from that judgment; "FOR reasons set out in the judgment in Criminal Appeal No. 27 of 1967 and the judgment of this Court in Badku Toti Savant's case, ,we are of the view mat a Customs Officer is under the Act of 1962 not 4 police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made arc not covered by Section 25 of the Indian Evidence Act (para 25)".

(5) On behalf of the petitioner, my attention has been drawn to the case of Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji and another etc.. wherein it was held, that the Court will not accept the evidence of an accomplice unless it was corroborated in material particulars." I am of the view that this authority is not at all applicable to the facts of the present case. In the present case we have not only the statement of other co-accused persons but also the statement of the petitioner himself recorded in an enquiry under Section 108 of the Customs Act which suggests his involvement in the transaction of smuggling foreign silver for illegal gains. The case of Kora Ghasi v. State of Orissa, was for offences under the Indian Penal Code and, therefore, the concept of a confession and its subsequent retraction will not be applicable to a case of the present nature.

(6) The submission that the prosecution had not collected any evidence to show that the silver allegedly recovered in this case Is of foreign origin, does not seem to be prima facie plaasible. It is said, " Men may lie but the circumstances will not". This very aptly prima facie applies to the present case. If there was nothing suspicious about the silver, I fail to understand why it was brought to Delhi in a Clandestine manner by concealing it under the thick layer of soil in the early hours of a wintry morning. Therefore, the very manner in which it is recovered prima facie goes to cost a strong suspicion that it was of foreign origin. The other argument that it was neither alleged nor shown by the prosecution that it was brought in India after the issuance of the Notification dated 8.6.90 will also not be relevant at this stage. Silver has been intercepted only in January, 1991 .i.e., after more than 7 months of the issuance of the Notification and the fact that it was brought from Rajasthan border adjoining Pakistan may further suggest that it was recently smuggled. Also the use of the word Videshi 5 or 6 times in the statement of the petitioner does not seem to give any benefit to the petitioner at this stage of the case. The evidence is still to be recorded. The officer before whom the alleged statements of the petitioner and others under Section 108 of the Customs Act were recorded will be examined in Court. He can be called upon to explain as to how the use of the word Videshi was allegedly made by the petitioner in his statement. If such an explanation is found to be un-satisfactory by the trial Court, it is naturally free to reach its own conclusion. At this stage it is not possible to cast any aspersion on this statement on account of the alleged use of the word Videshi 5 or 6 times.

(7) Lastly coming to the grant of ball in Cr.M.(M) 748/91. That is a case wherein the petitioner was allegedly intercepted at Igi Airport in the arrival shall while traveling from London. He had taken up a plea that he had clear intention to pay customs duty but before he could collect his entire luggage from the Conveyor belt and could make such a declaration about the possession of the gold, he was involved in the case. The facts of that case, therefore, were sufficiently different. The grant of ball in that case was allowed on the totality of circumstances. In the present case the presence of the petitioner like Sanjay Verma co-accused at about 4 or 5 A.M. on a wintry morning of January, 1991 itself Indicated prima facie the Intention to smuggle foreign silver in execution of a pre-meditated plan. His statement under Section 108 of the Customs Act also indicates that he had settled the place of storing foreign silver a day earlier when be had visited Javed who bad sent co-accused Mohsin Anwar with him. All the circumstances prima fade Indicate a design and desire of the petitioner to get rich over-night by making easy money out of this transaction. It will, therefore, be quite appropriate to remember the observations of Hon'ble the Supreme Court in the case of State of Gujarat v. Mohan Lal Ji. Tamalji Porwal and another reported In , "The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the beat of moment upon passions being aroused. An economic offence is committed in with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system of administration of justice In an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of damage done to the National Economy and National Interest".

(8) In view of the aforesaid circumstances, I am of the view that it will not be desirable to release the petitioner on bail at this stage. Petition is, therefore, dismissed.