Department Of Customs vs Shyam Sunder
2010 Latest Caselaw 4102 Del

07
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.M.C. 2591/2007
      DEPARTMENT OF CUSTOMS       .... Petitioner
                       Through Mr. S.C. Agarwala, Adv.

         versus
      SHYAM SUNDER                  ..... Respondent
                         Through

  CORAM:
    HON'BLE MR. JUSTICE SANJIV KHANNA
         ORDER

% 06.09.2010

1. The prosecution filed under the Customs Act, 1962 relates to alleged seizure of two gold slabs on 15th December, 1990.

2. After recording of the evidence, when the matter was fixed for final arguments, an application under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) was filed on behalf of Department of Customs for recording of further testimony of PW-2, Mr.Rajiv Kumar Kumra. This application was allowed vide order dated 10th April, 2007 and the case was adjourned to 18th April, 2007 for recording of further testimony of PW-2, Mr.Rajiv Kumar Kumra.

3. On 18th April, 2007 PW-2, Mr.Rajiv Kumar Kumra was not produced and by the impugned order the matter was directed to be listed for final argument.

4. The petitioner Department of Customs has not filed the order sheets of the trial court, the order dated 10th April, 2007 and the application under section 311 of the Code. Counsel for the petitioner Department of Customs orally states that the Department of Customs vide order dated 10th April, 2007 were granted one opportunity to produce PW-2, Mr.Rajiv Kumar Kumra on 18th April, 2007 subject to payment of costs of Rs.500/-. It is submitted that PW-2, Mr.Rajiv Kumar Kumra was not in India and therefore he could not be produced. It is stated that Department of Customs is not at fault and the trial court should have issued notice/warrants for his appearance.

5. Copy of the application under Section 311 of the Code has been furnished by the counsel for petitioner and has been placed on record. In the said application it was stated that PW-2, Rajiv Kumar Kumra had appeared and his statement was partly recorded but his evidence could not be concluded as he was not in India and was on deputation in U.N. It is further stated in the application as under:-

"Prosecution evidence was ultimately closed and the statement of Shri Rajiv Kumar Kumra remained incomplete. Now it has been noticed that Shri Rajiv Kumar Kumra is available as he has recently appeared as a prosecution witness in a case of the department."

6. It is apparent from the above that petitioner Department of Customs had requested for and on their prayer were granted one opportunity to produce PW-2, Mr.Rajiv Kumar Kumra on 18th April, 2007, in view of the specific averments made in the application quoted above. It was stated that PW-2, Mr.Rajiv Kumar Kumra was available and his evidence could be recorded. It was mentioned in the application that PW- 2, Mr.Rajiv Kumar Kumra was an employee of Department of Customs but on deputation. Thus the Department of Customs was in touch and aware about presence of Mr. Rajiv Kumar Kumra. It appears that a short date was given to enable the petitioner, Department of Customs, to produce PW-2, Mr.Rajiv Kumar Kumra before court for recording his testimony on 18th April, 2007. Contention now raised by the learned counsel for petitioner that they cannot produce Mr.Rajiv Kumar Kumra is beyond what was stated and averred in the application under section 311 of the Code. On the request of the petitioner, Department of Customs, one opportunity was granted to produce PW-2, Mr.Rajiv Kumar Kumra but they failed to produce him. Wait cannot be endless. The alleged offence relates to year 1990. Enough time and fair opportunity has been given to the prosecution to lead their evidence. In view of the aforesaid the impugned order dated 18th April, 2007 does not merit interference in exercise of discretionary jurisdiction under section 482 of the Code.

The petition is accordingly dismissed.

SEPTEMBER 06, 2010                                 SANJIV KHANNA, J.
NA/J