Raj Kumar Gupta vs Union Of India
1993 Latest Caselaw 352 Del

ORDER

1. This is a petition for grant of bail under S. 439 of the Criminal P.C.

2. The case of the prosecution is that the Directorate of Revenue Intelligence (Hqrs). New Delhi, received an intelligence report that one consignment which was being imported in the name of Mr. Khalid Al Shorbaji, Attache, Embassy of State of Palestine, contained contraband gold. Accordingly, the said consignment was thoroughly examined in the presence of said Diplomat which resulted in the recovery and seizure of 300 foreign marked gold biscuits of 10 tolas each from the cooking range and 200 foreign marked gold biscuits of 10 tolas each from the washing machine. In his detailed note dated 25th January, 1992 Mr. Khalid stated that Trilochan Singh Khurana arranged the import of these gods but he denied the knowledge or ownership of 500 gold biscuits.

3. It is alleged that the statement of Trilochan Singh Khurana was recorded under section 108 of the Customs Act, 1962 (for short called the Act') on 25th January, 1992. In his statement he stated that he was dealing in the import of electronic and household articles for Diplomats and Embassy staff and the above mentioned gold was smuggled at the instance of the petition. He also stated that for the import of such consignment, he used to charge Rs. 50,000/- for each shipment. He also stated that in July 1991 the petitioner smuggled 400/500 pieces consisting of gold biscuits along with items of electronic.

4. It is then alleged that after this the statement of the petitioner was also recorded under section 108 of the Act on 25th January, 1992. the petitioner stated that about a year ago he came into contact with one Haji Aziz Al Raha of Dubai and said Haji offered him Rs. 1000/- per gold biscuit of 10 tolas each for smuggling the same into India. He further stated that on his return to India he contacted co-accused Trilochan Singh Khurana of Diplomatic Agency and in terms of settlement arrived at with him, a sum of Rs. 50,000/- as commission for each consignment containing gold biscuits was to be paid to said Trilochan Singh Khurana. He also stated that in July 1991 Trilochan Singh Khurana arranged import of one consignment in the name of one Diplomat and the said consignment contained 750 foreign marked gold biscuits of 10 tolas each and the said biscuits were handed over by the petitioner to a person as per instructions of said Haji of Dubai. He also admitted that he received a sum of Rs. 7,50,000/- as commission from the said Haji of Dubai against the aforesaid consignment and out of this amount, he paid Rs. 50,000/- to the co-accused Trilochan Singh Khurana.

5. It further stated that in December 1991, said Haji of Dubai asked the petitioner to arrange a Diplomatic consignment so that another lot of gold biscuits could be sent to Indian and thereafter one order was procured by co-accused Trilochan Singh Khurana in the name of Mr. Khalid Ahemad Al Shorabjit. This consignment was dispatched by flight No. EK-702, dated 14th January, 1992 which on examination resulted in recovery and seizure of 500 foreign marked gold biscuits as stated above.

6. Thereafter, both the petitioner and co-accused Trilochan Singh Khurana were arrested on 26th January, 1992.

7. Mr. Herjinder Singh learned counsel for the petitioner submitted that the present case so based on the statements of the petitioner and of Trilochan Singh Khurana recorded under section 100 of the Act. He further submitted that except these two statements, there is no evidence involving the petitioner in the case. Learned counsel drew my attention to the application submitted by the petitioner on 26th January, 1992 itself before the duty Magistrate (copy of which is at page 15 of the paper book) wherein he retracted his statement recorded under S. 108 of the Act and specifically stated that he was beaten and harassed and under pressure some papers were singed by him. He also drew my attention to another application filed by the petitioner on the same date before the duty Magistrate wherein again he alleged that the officers of DRI physically tortured him and made him to write/sign some papers under dictation. He further submitted that the same way the co-accused Trilochan Singh Khurana also retracted his statement vide his application dated 26th January, 1992 submitted before the duty magistrate. Learned counsel contended that the retracted confession of the petitioner as well as of the co-accused is not a substantive piece of evidence and it can only be used to lend assurance if there is other independent evidence. In support of his submissions learned counsel placed reliance on Supreme Court judgments in Haroon Haji Abdulla v. State of Maharashtra, , Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1163 : (1964 (2) Cri LJ 344) a judgment of Bombay High Court in State of Maharashtra v. Sayed Mohamed Hashim Al Musavi, 1991 (51) ELT 41, and recent judgment of this Court in Cr. M(M) No. 929 of 1993 Ravi Singhal v. Union of India, dated 5th May, 1993.

8. Learned counsel further submitted that under section 138 of the Act the maximum punishment is seven years and the petitioner has been in jail from 26th January, 1992 till 12th January, 1993 when he was granted bail because of heart ailment. In this connection learned counsel drew my attention to the medical certificate issued by Dr. Rakesh Verma, Heart Specialist of Dr. Ram Manohar Lohiya Hospital, New Delhi wherein it has been stated that in view of the recent unstable angina the petitioner has been hospitalized from 31-3-1993 to 2-4-1993 (CR No. 8875). It is further stated in the certificate that in view of the shortage of beds, he could not be hospitalised for long and he was required to attend the hospital at regular intervals, say one/two weeks interval.

9. Lastly, learned counsel submitted that the orders of detention in respect of the petitioner as also the co-accused Trilochan Singh Khurana have already been quashed by a learned single Judge of this Court on 12th February, 1992.

10. He, therefore, contended that in view of the facts mentioned above, the petitioner should be released on bail.

11. Mr. Sawhney, learned counsel appearing on behalf of the respondent, submitted that in the present case the recovery and seizure of gold is to the tune of Rs. 3 crores. He further submitted that the cooking range and washing machine were opened in the presence of the Diplomat Mr. Khalid Ahmed Al Shorabjit who in his note had stated that the goods in question were imported into India through Trilochan Singh Khurana, the intending agent. Trilochan Singh Khurana in his statement stated that the import of consignment was at the instance of the petitioner. Learned counsel submitted that in view of the statements which are quite comprehensive and detailed ones, the question of retraction of the said statements become irrelevant. He drew my attention to the statement of the petitioner recorded under S. 108 of the Act wherein he had given full history as to how he came in contact with Haji of Dbuai. The amount of commission he got in the earlier consignment and the amount he would have got in the present consignment has also been stated.

12. The learned counsel further submitted that a mere bald statement that the petitioner was pressurised to give a particular statement should not have any effect on the point that the statement was not voluntarily given, particularly in view of the fact that the statement is a detailed one. In support of his submissions learned counsel placed reliance on a Supreme Court judgment in Hem Raj Devilal v. State of Ajmer, AIR 1951 SC 462 : (1954 Cri LJ 1313).

13. The learned counsel also submitted that the complaint was filed against the petitioner and co-accused Trilochan Singh Khurana on 18th March, 1992 and the case could not proceed as the petitioner and co-accused had been seeking adjournment on the pretext or the other and as a result of that only one witness out of 11 witnesses could be examined so far. He, therefore, contended that the petitioner is not entitled for bail.

14. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the statements of the petitioner and of the co-accused Trilochan Singh Khurana recorded under section 108 of the Act. From the statements of the petitioner and Trilochan Singh Khurana I find that these statements contain elaborate details as to how the petitioner came into contact with Haji of Dubai and further how he contacted the intending agent and also details about his earlier consignment of 750 gold biscuits for which he received a commission of Rs. 7,50,000/- from Haji out of which he paid Rs. 50,000/- to Trilochan Singh Khurana. Similarly Trilochan Singh Khurana in his statement has given complete details regarding his arrest in New York in a drugs case in 1985. Trilochan Singh Khurana has also stated that in the event of specific shipment he was to get Rs. 50,000/- for such shipment and clarifying the meaning of specific shipment, he stated that it meant were smuggled contraband gold was to come. He has also admitted that at an earlier occasion the petitioner smuggled over 400/500 packets in the shipment consisting of gold biscuits along with items of electronics. He also admitted that even in the present consignment he would have got a sum of Rs. 50,000/- from the petitioner in case the smuggled gold had not been detected and seized by the DFI officers.

15. In view of the detailed statements of both the accuse prima facie for the purpose of deciding this petition, it cannot be said that these statements were obtained under pressure and coercion. As stated hereinabove the petitioner is allegedly not only involved in the present consignment but in his statement he has admitted that on an earlier occasion he was involved in respect of the consignment of 750 gold biscuits for which he was paid Rs. 7,50,000/- by Haji of Dubai. The fact that the gold was concealed in the cooking range and washing machine at the instance of the petitioner provides corroborative evidence regarding the gold being smuggled from Dubai into India. In view of the fact that the petitioner is involved in the smuggling activities in more than one consignment and on more than one occasion involving gold worth crores of rupees as admitted by him in his statement. I am of the view that it is not a fit case for grant of bail to the petitioner. The view, I have taken, finds support from a decision of this Court in Cr. M(M) No. 641/91 Sanjay Verma v. State decided on 8th April, 1991.

16. In this connection I may refer to the following observations from a judgment of the Supreme Court reported in State of Gujarat v. Mohanlal Jitamalji Porwal, :-

"The entire Community is aggrieved if the economic offenders who run the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed 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 to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."

17. As regards the judgments cited by the learned counsel for the petitioner on the retraction of statement, I am of the view the these judgments are not relevant to the facts of the present case as the statement of the petitioner is quite comprehensive and detailed one and is corroborated by the statement of the co-accused Trilochan Singh Khurana which is again a detailed one. As regards the case of Ravi Singhal (supra), the ratio of that judgment is also not applicable to the facts of the present case as in that case the main point which weighed with the learned single Judge of this court was that the petitioner in that case was discriminated inasmuch as the main accused were not apprehended whereas the petitioner was apprehended. But in the present case, there is no allegation of such discrimination.

18. In the result I find no merit in the petition and the same is dismissed.

19. The petitioner was granted interim bail granted in January, 1993 on the ground that he was suffering from unstable angina and as the interim bail was extended from time to time in view of the medical report of Dr. Rakesh Verma, Heart Specialist of Dr. Ram Manohar Lohia Hospital, New Delhi vide letter No. MID/3610/93 dated 6th April, 1993 (copy of which is at page 117 of the paper book). In this report it has been stated that in view of the shortage of beds he cannot be hospitalised. Since the report is of early April, 1993, I direct the petitioner to appear within a week from the date of this order before the Head of Cardiology Department/Cardiologist of Dr. Ram Manohar Lohia Hospital, New Delhi, who will submit the latest report of the petitioner to this Court directly within a week thereafter. For the purpose of interim bail, the case is adjourned to 18th June, 1993. Meanwhile, the interim bail is extended till the next date of hearing on the same terms and conditions.

20. I further direct that a copy of the last para of this order be sent to the Medical Superintendent Dr. Ram Manohar Lohia Hospital, New Delhi, for information and compliance.

21. Petition dismissed.