Delhi High Court
Directorate Of Revenue ... vs Pawan Kumar & Ors. on 4 January, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 21st December, 2010
Date of Order: 4th January, 2011
+Crl. Rev. P. 615 of 2010
%
04.01.2011
DIRECTORATE OF REVENUE INTELLIGENCE ... Petitioner
Through: Mr. Satish Aggarwala, Advocate
Versus
PAWAN KUMAR & ORS. ... Respondents
Through: Mr.. Piyush Kumar and Mr. Navneet
Panwar, Advocates for R-6
Mr. Naveen Malhotra, Adv. for R-3
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this Revision Petition the petitioner has assailed order dated 1 st
June, 2010, whereby learned Additional Chief Metropolitan Magistrate
(ACMM) discharged the accused.
2. The order of learned ACMM makes interesting reading. The ACMM
observed as under:
"It may not be necessary to call the sanctioning
authority to cl in the witness box but it must be
proved that there was an application of mind by
the authority prior to the grant of sanction.
Crl. Rev. P. 615 of 2010
The order of sanction appears to be
verbatim reproduction of major portion of
complaint. The same does not mention how the
sanctioning authority got to know the facts
mentioned in 37 page sanction order as to who
briefed the sanctioning authority or whether the
investigation file was put before him or not.
It is not clear how the sanctioning authority
came to know about the fact whether any person
who was related with the investigation ever
apprised the sanctioning authority."
I am surprised that ACMM could make such observations. A
sanctioning authority is not supposed to mention in its order as to who
disclosed the facts to it and how it came to know of the facts of the case. A
sanctioning authority has to accord sanction for prosecution on the basis of
facts placed before it by the department and this much general knowledge
and common sense has to be considered available with the learned ACMM,
but alas; it was absent. The attitude of ACMM is also surprising. If
sanctioning authority has mentioned all the facts before according sanction
that is being branded as non-application of mind.
3. I also find that the learned ACMM considered that the only evidence
available with the prosecution was a retracted statement made under Section
108 of Customs Act. A perusal of record would show that retracted statement
under Section 108 of Customs Act was only one piece of evidence and apart
from that, there was entire sequence of circumstantial evidence of the
departmental witnesses in support of the prosecution case. The complaint
Crl. Rev. P. 615 of 2010
itself shows the role of different officers of customs and how the goods were
illegally being exported. The learned ACMM, however, observed:
"Now, coming to this case it appears to be
rightly submitted on behalf of accused persons that
there is no prima facie case for conviction existing
against either of the accused. Except the retracted
statement of accused persons recorded under
Section 108 of the Customs Act, there is no
material brought on record against either of the
accused. There is even no investigation on the
point how the goods were allegedly exported.
Who were the officers posted at the Customs Port
at the relevant time when the goods were
exported. How the goods were cleared by the
Customs Officers. Those officers were very
important clue about the circumstances under
which the goods were actually exported. Their
evidence could have been easily available to the
prosecution during investigations as well as during
prosecution of this case. However, no attempt
was made to investigate this aspect. This fact
raises an adverse inference against the
prosecution as required under Section 114(g) of
Indian Evidence Act."
4. It is apparent from the complaint made before the ACMM that accused
and certain custom officers were hand in glove with each-other in order to
deprive the state exchequer of the duties. The custom officers were also
made accused in the case. If learned ACMM considers some witnesses had
been left out, instead of using its power of summoning additional witnesses
Crl. Rev. P. 615 of 2010
under Section 311 Cr. P.C. during trial and to see that the culprit are
punished, the learned ACMM seemed to have acted more like a Clerk than
like a Judge and was happy in discharging everybody on the ground that
there was no investigation on the point how the goods were allegedly
exported, who were the officers posted at Customs Port at the relevant time
and what goods were exported.
5. No doubt, we follow adversorial system of prosecuting criminals but a
Judge is not supposed to act only as an umpire to blow whistle. A Judge has
certain duties assigned to him under Cr. P.C. to ensure that those who
commit crime do not go scot free on mere technical grounds. A Judge has
power to summon additional evidence suo moto and has also power to
question the witnesses and if he finds that investigation was mis-directed, the
Judge can still ensure that necessary witnesses are summoned in the Court
and examined. The learned ACMM has been passing similar order almost in
every cases and instead of using his judicial powers under various provisions
of Cr. P.C., has been washing off his hands by discharging the accused
persons on flimsy grounds.
6. The issue of sanction in another similar order of ACMM was
considered by this Court in its judgment dated 25th October, 2010 delivered in
the Crl. Rev. P. No. 305 of 2010, Directorate of Revenue Intelligence Vs.
Mohd. Anwar and the order was set aside. The order dated 1st June, 2010
passed by learned ACMM being patently illegal and contrary to record is
hereby set aside.
Crl. Rev. P. 615 of 2010
The parties are directed to appear before the Court of ACMM on 15th
January, 2011. The court shall frame charge and proceed with trial.
JANUARY 04, 2011 SHIV NARAYAN DHINGRA, J.
acm
Crl. Rev. P. 615 of 2010
