Customs vs Dina Aruna Gupta
2011 Latest Caselaw 3479 Del

$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.L.P. No.344/2011
%               Judgment delivered on:22nd July, 2011


CUSTOMS                                       ..... Petitioner
                        Through:Mr.P.C.Aggarwal & Mr.Sunder
                        Lal, Advocates.

                  versus

DINA ARUNA GUPTA                             ..... Respondent

Through: NEMO.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to Reporter or not? Yes.

3. Whether the judgment should be reported in the Digest? Yes.

SURESH KAIT, J.(Oral)

CRL.M.A.8398/2011(condonation) For the reasons explained in the application, the same

is allowed and the delay in filing the appeal is condoned.

Criminal M.A. stands disposed of.

CRL. L.P. No.344/2011

1. Petitioner, the Customs Department, has assailed the

impugned order dated 04.06.2010 passed by learned

Additional Sessions Judge, Dwarka Courts, New Delhi

whereby the respondent Ms.Dina Aruna Gupta was

acquitted.

2. The facts of the case are that:-

On 14.03.2001, accused Dina Aruna Gupta, respondent

herein who is holder of Indian Passport bearing

No.ZI366659, working as On-board courier, went to

Singapore on duty and on her return on 15.03.2001 at IGI

Airport, New Delhi from Singapore by Air Indian flight

No.A1477, she reported at customs courier counter to finish

her official duty. Her hand baggage was consisting of one

black colour stroller bag and one black colour ladies hand

bag. Having completed the other formalities, at the custom

courier counter, when she walked through the green

channel, was intercepted on suspicion by the custom officer

at the exit gate of the arrival hall.

3. At this stage, two independent panch witnesses were

called, in the presence of witnesses, customs officer asked

the respondent, whether her baggage or person contained

any contraband goods, like gold or electronic, to which she

replied in the negative.

4. The customs authority served a notice under Section

102 of the Customs Act, 1962 (hereinafter referred as to the

'said Act'). The baggage of the respondent was examined

and 10 pieces of gold biscuits of 10 Tolas, each from inside

her black colour ladies purse were recovered. The

recovered gold biscuits bearing foreign markings,

collectively weighing 1166.4 Grams of 999 purity, valued

collectively at `5,01,552/-.

5. Personal search of the respondent was conducted, but

nothing incriminating was recovered. The respondent could

not produce any other documentary or otherwise in support

of legal import of the recovered gold and the same was

seized under the provisions of the said Act under the

reasonable belief that the same were smuggled into India,

hence, liable to be confiscated.

6. As alleged, during the course of the inquiry, the

respondent tendered her voluntary statement under Section

108 of the said Act, which is admissible in evidence, wherein

she admitted the recovery and seizure of the aforesaid gold

and other incriminating facts.

7. After investigation, a complaint under Section 132 and

135 (1) (a) of the said Act was filed. The prosecution had

examined PW1 Smt.Suchi Goyal, Air Customs Officer(ACO),

the seizing officer; PW-2 Shri S. K. Mohanty, Superintendent

of Customs, who recorded the statement of the respondent

under Section 108 of the said Act.

8. After recording pre-charge evidence, vide order dated

13.09.2001 charges under Section 132 & 135 (1) (a) of the

said Act against the respondent was framed, to which she

pleaded not guilty and claimed trial. The aforesaid PWs

were tendered for their cross examination after charge.

Their cross examination was conducted after charge. The

statement of the respondent under Section 313 Criminal

Procedure Code was recorded and the entire evidence

against the respondent was put to her.

9. The respondent herself appeared in the witness box

and was examined as DW1. The Trial Court after hearing

the arguments convicted the respondent and sentenced her

for a period of six months under Section 132 of the said Act

and three years under Section 135 coupled with a fine of

`80,000/- vide order dated28.08.2002.

10. Respondent preferred an appeal against the aforesaid

conviction order dated 28.08.2002 before the Sessions

Court and learned Additional Sessions Judge, had remanded

back the case for further trial.

11. After remanding back of the case, on 05.07.2003, PW3

Shri Ramesh Chander Aggarwal, who has tested the

recovered gold was examined. On 17.09.2003, statement

of the accused under Section 313 Cr. P. C. was recorded.

12. After hearing the arguments, respondent was again

convicted, vide order dated 31.05.2006 by the Court of

learned ACMM; New Delhi and sentenced for a period of six

months under Section 132 of the said Act and three years

under Section 135 coupled with a fine of `80,000/-.

13. Being aggrieved against the aforesaid conviction order

dated 31.05.2006, respondent has preferred an appeal

before the Court of Additional Sessions Judge, New Delhi and

the said appeal was decided vide order dated 04.06.2010,

whereby the respondent was acquitted.

14. The custom department, being aggrieved by the

aforesaid order dated 04.06.2010 passed by the learned

Additional Sessions Judge, has assailed by filing the instant

revision petition.

15. Learned counsel for the petitioner submits that learned

Additional Sessions Judge has gone wrong while not

appreciating the deposition of PW1 Mrs.Suchi Goyal, ACO,

PW2 Shri S. K. Mohanty, Superintendent, who recorded the

statement of the respondent under Section 108 of the aid

Act and PW3 SHri Ramesh Chander Aggarwal, gold smith

and the valuer.

16. On perusal of the impugned judgment dated

04.06.2010, it is seen that learned Additional Sessions Judge

has come to the conclusion, on the basis of that statement

of the accused recorded under Section 108 of the said Act is

admissible in evidence, against the accused unless it is

proved that it was forcibly extracted from the accused. No

doubt, as per the provision, the statement under Section

108 of the said Act cannot be doubted as it is admissible,

however, at the same time, cannot be made sole basis of

the conviction particularly if the same is retracted

immediately thereafter. Besides, it is also to be seen the

circumstances in which the said statement was made and at

what time.

17. Learned Additional Sessions Judge noted in the present

case, as pointed out by the learned defence counsel that the

prosecution did not prove on record the arrest memo of the

accused. Further, pointed out that the photocopies of the

arrest memo which is on the judicial record and as per the

time of arrest is shown as .05hours which in her opinion,

amounts to 12.05hours. This fact has not been properly

appreciated by the learned Trial Judge and had held that

.05hours amounts to 5:00AM. The reasons given by the

learned Trial Court was that in the panchnama it was stated

that the proceedings started at 23:00 hours on 15.03.2001

and concluded at 03:00 AM on 16.03.2011, shows that

panchanama proceedings was over at 12:30AM, hence the

claim that the accused was arrested at 12:05 AM, is

discarded as it was not based on the arrest memo. In the

arrest memo, the time is mentioned as .05hours, which by

no stretch of imagination can be termed as 05:00AM, thus if

the time of the panchnama proceedings is mentioned 23:00

hours to 00:03 hour, the time mentioned on the arrest

memo as 05:00 AM, cannot be ignored.

18. Learned Additional Sessions Judge has observed that

arrest memo is to be read independently as a separate

document, prepared during the investigation and according

to it, time of arrest is clearly mentioned as .05 hours. Had it

been that the time of arrest was 05:00 AM it would have

been mentioned as 05:00 hours instead of .05 hours.

19. Indisputably, as per the photocopies of the arrest

memo, the accused was arrested on 12:05AM whereas

statement under Section 108 of the said Act admittedly

recorded at 01:00 AM. At that time, the accused/

respondent was already arrested and under the influence of

the customs officers for which reasons she could not have

made any voluntary statement in her own handwriting.

20. Besides, she retracted from the aforesaid statement at

the earliest opportunity available to her. Admittedly, when

she was produced in the Court for the first time, after her

arrest, she moved an application retracting from the

statement on the ground that she was forced to make the

statement.

21. Thus, in the circumstances, learned Additional Sessions

Judge observed that the statement of the respondent under

Section 108 of the said Act was not recorded voluntarily, and

has come to the conclusion that the prosecution has failed

to prove the statement of the respondent under Section 108

of the said Act, cannot be used against the accused to

corroborate the case of the prosecution.

22. As is observed by learned Additional Sessions Judge,

prosecution has failed to prove on record that the baggage

and person of the respondent was searched on 15.03.2001

as there is interpolation of the dates on the said notice at

two places i.e below the signature of PW-1 Smt.Suchi Goyal

and below the signature of the accused. The date appears to

have been mentioned originally as '16.03.2001' at both the

places and thereafter it was interpolated as '15.03.2001'. No

explanation has been given by the prosecution for the

aforesaid interpolation. This leads to the inference that no

notice under Section 102 of the said Act was served upon

the respondent/accused, before baggage and person was

searched. Rather the inference can also be drawn to the

effect that no such search was conducted as claimed by the

prosecution.

23. The prosecution, as is observed by the learned

Additional Sessions Judge, has not produced the Panch

witnesses to prove the alleged recovery of the gold biscuits

from the possession of the accused.

24. It was further observed from the learned Trial Court's

order that since accused had admitted in her statement

under Section 108 of the said Act, the recovery of the gold

from her possession, as such non-production of the panch

witness not fatal to the case of prosecution.

25. Further, learned Additional Sessions Judge did not

agree with the aforesaid view of the learned Trial Court and

was of the view that onus is always on the prosecution to

prove its case. As it is already observed above that the

statement of the accused under Section 108 of the said Act,

in the present case is of no help to the prosecution, since it

was recorded after the arrest of the accused, therefore, it

was necessary on the part of the prosecution to examine the

panch witness to prove the alleged recovery of the gold bars

from the possession of the accused.

26. It was also seen by the learned Additional Sessions

Judge from the record that the intercepting officer has also

not been examined by the prosecution nor even has cited as

a prosecution witness. The prosecution has not even

brought on record as to who was the officer who had

intercepted the accused on the basis of the suspicion. The

only witness examined by the prosecution on record

regarding the alleged recovery of gold bars from the

possession of the accused is PW-1 Smt.Surchi Goyal, Air

Custom Officer, who in her examination in chief claimed that

she had intercepted the accused on suspicion, whereas, in

her cross examination she testified that the accused was

intercepted for the first time by the gate officer and not by

her, she could not tell the name of the gate officer. Further,

in her examination in chief, she stated that she had

searched the hand purse of the accused, which was found to

contain ten gold biscuits of 10 Tolas each, which were

wrapped in white colour handkerchief and the biscuits were

bearing foreign markings as "THE PERTH MINT AUSTRALIA -

TEN TOLAS 999". Whereas, in her cross examination dated

11.10.2001, she testified that when she was called for

further proceedings in the matter the gold was lying in the

bag wrapped in the handkerchief of white colour. The

witness has not explained as to when she had left the

proceedings and when she had again joined the

proceedings. Neither she could give the description of bag

nor it has been mentioned in panchnama.

27. It was further noticed that PW1 in her entire testimony

even did not disclose the name of the panch witness and

from where they were called and who had called them. She

categorically testified that she has not told as to whether the

name of the officer, who had called the panch witness, nor

they were cited in the list of witnesses, as she had not called

the witnesses.

28. Regarding the sanction, PW1 Smt.Surchi Goyal,

testified in her cross examination, that she had not obtained

the sanction for prosecution in this matter and she had

simply put to the file. Thus, the prosecution has even failed

to file on record that the sanction Ex.PW1/N granted by the

Commissioner of Custom was applied by PW-1 or any other

officers and that the same was granted by the

Commissioner of Custom after applying its mind on the facts

of the present case. As per the testimony of PW-1 it appears

that, as was observed by learned Additional Sessions Judge,

had simply put to the complaint before the Commissioner of

Customs and had gathered sanction for the prosecution of

the accused in mechanical manner without due application

of mind. The provision envisaged in Section 137 of the said

Act are mandatory. As per the same, no Court shall taken

cognizance of any offence under Section 132, 133, 134 of

135 of the said Act, except with the previous sanction of the

Commissioner of Custom.

29. Thus, the sanction was granted by the Commissioner

of Customs in mechanical manner without applying the mind

to the material placed before him by the investigating officer

and then to decide whether the prosecution of the accused

was required or not. Though, PW1 Mrs.Surchi Goyal has

claimed that she was not the IO of the case, but in her cross

examination, testified that she had put up the complaint for

sanction for prosecution. She has nowhere testified that

she has produced all the documents such like panchnama,

summons under Section 102, 108 of the said Act and the

statement of the accused besides the other documents for

his perusal to facilitate him to take a decision on sanction.

30. Recovery of the gold bars of 24^ from the possession

of the accused was also to be proved by the prosecution. At

the time the prosecution was to prove the time of the

recovery of gold from the possession of the accused and it

was of foreign origin.

31. The prosecution has examined PW3 Shri Ramesh

Chand Aggarwal, the gold smith and the valuer who had

tested the gold bars allegedly recovered from the

possession of the accused. Whether PW3 Shri Ramesh

Chand Aggarwal was possessed of any qualification in the

matter of testing gold was liable to be proved by the

prosecution. The certificate issued by the PW3 Shri Ramesh

Chand Aggarwal i.e. Ex.PW1/F does not disclose the method

on the basis of which he had tested the gold and had

reached to the conclusion that it was gold of 24^ purity.

32. Normally, the test applied for testing gold is furnace

test but the same was not applied or resorted to in the

present case. There is no evidence on record that PW3

Sh.Ramesh Chand Aggarwal was possessing any proficiency

in the matter of testing gold. The certificate/report

Ex.PW1/F does not contain any data. Whereas the certificate

must contain actual data and not mere opinion. Further,

the gold of foreign origin has to be proved by the authentic

manner. Law is well settled that mere marking cannot be

taken as a proof of the gold for origin of the gold as

markings and labels. In such a situation, the statement of

the accused under Section 108 of the said Act has no

consequences.

33. As per prosecution, the value of the gold as on

15.03.2001 was not taken into consideration, while giving

the value of the alleged recovered goods. Learned

Additional Sessions Judge found no evidence on record to

show that as to what was the market rate of gold or

international rate of gold as on 15.03.2001 or even on

16.03.2001 so as to say that the recovered gold was

correctly valued. As per the testimony of PW3 Sh.Ramesh

Chand Aggarwal, he did depose correctly the value of the

gold as mentioned in the certificate Ex.PW1/F. As per his

examination in chief, the value of the gold was `5,01,500/-

whereas as per the certificate Ex.PW1/F, the value of the

gold is mentioned as `5,01,552/-.

34. The visits at the airport of the PW3 Sh.Ramesh Chand

Aggarwal has also not been proved. There is no

documentary evidence on record about the arrival of the

PW3 Sh.Ramesh Chand Aggarwal at IGI Airport. PW3

Sh.Ramesh Chand Aggarwal has admitted in his cross

examination that no entry pass was made for him. It is only

during the testimony of PW3 Sh.Ramesh Chand Aggarwal, it

has come on the record that that PW3 Sh.Ramesh Chand

Aggarwal, did not come alone to the airport but was

accompanied by his assistant Shri Hitender Gupta and he

also testified that the certificate Ex.PW1/F was not in his

own handwriting but was prepared by his assistant, referred

above. The prosecution has neither cited nor examined him

as a prosecution witness. Since the certificate Ex.PW1/F was

in the handwriting of Shri Hitender Gupta, it was more

necessary that he was to be cited as witness, and should

have been examined as a witness to prove that gold bars

were tested by the PW3 Sh.Ramesh Chand Aggarwal in his

presence and certificate Ex.PW1/F was prepared by him

under the direction of PW3 Sh.Ramesh Chand Aggarwal.

35. In his cross examination, he has deposed that he was

paid `500/- for the professional charges and the said

amount was given to him in cash by Shri O N Sharma,

Superintendent of Customs and the aforesaid

Superintendent, Custom did not issue any receipt for the

said amount. At the same time, he claimed that he used to

pay `1,250/- per One lac and he has not given any

explanation as to why he accepted `500/- in place of the

rates mentioned above.

36. In view of the above discussion, I am of the opinion

that the prosecution has failed on account of arrest of the

accused, testing of the gold, the value of the gold and the

visit of PW3 Sh.Ramesh Chand Aggarwal and the sanction

issued by the Commissioner of Customs. On these issues,

the prosecution could not prove, I note, all the issues raised

have been dealt with by learned Additional Sessions Judge.

37. I find no infirmity in the order passed by the learned

Additional Sessions Judge; therefore, I am not inclined to

interfere with the order passed by learned Additional

Sessions Judge.

38. In view of above, Criminal L.P. No.344/2011 is hereby

dismissed.

39. No order as to costs.

SURESH KAIT, J

JULY 22, 2011 Mk