Delhi High Court
Niranjan Kumar vs Dri, New Delhi on 21 July, 2009
Author: V.K.Shali
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No.1770/2009
Reserved on : 16.07.2009
Date of Decision : 21.7.2009
Niranjan Kumar ...... Petitioner
Through : B. R. Handa, Sr. Adv.
with Ms. Hiteshi Arora, Adv.
Versus
DRI, New Delhi ...... Respondent
Through : Mr.S.C. Aggarwal, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J.
1. This is a petition filed by the petitioner under Section 482
Cr.P.C. for issuing necessary directions to the respondent to
place on record the file of COFEPOSA from the office of
respondent no. 1.
2. Briefly stated the facts of the case are that a complaint
under Section 135 of the Customs Act, 1962 was filed by the
respondent against the petitioner which is presently pending in
the Court of ACMM, New Delhi. The charges were directed to be
framed against the petitioner for the said offence. The petitioner
feeling aggrieved against the order directing the framing of the
charge for the aforesaid section, filed a revision petition which
came to be listed in the Court of Ms. Ravinder Kaur, learned
Additional Sessions Judge, Dwarka, New Delhi. In this revision
petition the petitioner filed an application for production of
COFEPOSA record before the Revisionist Court. The case of the
petitioner was that he had not made any statement under
Section 108 of the Customs Act, 1962. There was no recovery
effected from him and despite this he was detained under
COPEPOSA. The petitioner had appeared before the Advisory
Board and it had quashed the detention order. The petitioner
accordingly wanted the production of the record of the Advisory
Board quashing the detention order under COPEPOSA. The
learned Additional Sessions Judge called for the report on the
application of the petitioner and observed as under:
"Report has been received from the
Government of India, Ministry of Finance,
COFEPOSA, that the required file is not
available being 24 years old.
So the matter is adjourned for arguments
on 22.05.2009."
3. The petitioner has felt aggrieved by this order and has
accordingly prayed that the High Court in exercise of its power
under Section 482 Cr.P.C. may direct the respondent to place the
said file before the learned Additional Sessions Judge or
alternatively in case the record is not available the petitioner be
permitted to file an affidavit stating his stand before the
Revisionist Court.
4. I have heard the learned counsel for the petitioner as well
as the learned counsel for the respondent. I have also gone
through the record.
5. The learned counsel for the petitioner mainly contended
that there was no recovery affected from the petitioner nor was
his statement recorded under Section 108 of the Customs Act,
1962 and there being no incriminating evidence against the
petitioner his detention order was quashed.
6. As against this, the learned counsel for the
respondent/department contended that under Section 8(e) of the
COFEPOSA Act, 1974, the record of the COFEPOSA is a
confidential record and the same cannot be produced before any
Court as evidence.
7. The learned counsel for the respondent further contended
that the second prayer of the petitioner that he be permitted to
file an affidavit before the Revisionist Court in case the record is
not available or not produced is also not tenable in law because
the trial of the complaint case under Section 135 of the Customs
Act, 1962 is not before the Revisionist Court. It is before the
learned ACMM and whatever evidence the petitioner wants to
adduce that he can do in his defence as and when he enters into
same. Therefore, this prayer was also opposed.
8. I have carefully considered the respective submissions and
gone through the record.
9. Section 8(e) of the COFEPOSA Act, 1974 reads as under :
"8(e) A person against whom an order of detention
has been made under this Act shall not be entitled
to appear by any legal practitioner in any matter
connected with the reference to the Advisory Board,
and the proceedings of the Advisory Board and its
report, excepting that part of the report in which
the opinion of the Advisory Board is specified shall
be confidential."
10. A perusal of the above provision would show that except
the opinion of the Advisory Board the rest of the things are
confidential, and therefore, cannot be asked for the petitioner.
11. Therefore, I feel that the prayer of the petitioner is totally
misconceived and cannot be granted under Section 482 Cr.P.C.
There is no doubt that Section 482 Cr.P.C. recognizes the
inherent powers of the Court to pass any order in the interest of
justice or to prevent the abuse of process of law, but this is not
an unfettered power and has to be based on certain sound
reasoning. The petitioner is facing prosecution in a case under
Section 135 of the Customs Act, 1962 and the petitioner is
assumed to be innocent till it is proved to the contrary. So far as
the proceedings before the Advisory Board are concerned by
virtue of Section 8(e) the same are confidential except the opinion
part given in the form of recommendation, and therefore the
record sought by the petitioner cannot be directed to be provided
by this Court in defiance of express provision of law. Therefore,
this prayer is totally misconceived.
12. So far as the prayer of the petitioner to file an affidavit
before the Revisionist Court is concerned, the said Court does
not have to take evidence by way of an affidavit while deciding
the revision. The Revisionist Court has to see the legality,
propriety and the correctness of the order of the Court below.
The petitioner admittedly will get an opportunity to enter his
defence in whatever manner he wants to do so. In view of the
aforesaid facts and circumstances, the petition of the petitioner
is totally misconceived and accordingly the same is dismissed.
V.K. SHALI, J.
JULY 21, 2009
KP
