Dri vs Satyanarayan Agarwal
2012 Latest Caselaw 843 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.L.P.No.403/2011

%             Judgment delivered on:07th February, 2012

DRI                                                         ..... Petitioner
                                Through : Mr. Satish Aggarwala, Spl. PP
                                with Mr. Sushil Kaushik and
                                Ms. Kushboo Garg, Advs.

                       versus


SATYANARAYAN AGARWAL                                     ..... Respondent
               Through : None

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the instant petition, the petitioner has assailed the judgment

dated 30.06.2011 passed by the ld. Addl. Chief Metropolitan

Magistrate-01, Patiala House Courts, New Delhi on various grounds,

however ld. Counsel for the petitioner has argued that, as regards

sanction for prosecution, the court ignored the fact that sanction for

prosecution had been filed with the complaint and that is why

cognizance of offences was taken. Sanction of prosecutuion was

proved and exhibited as Ex.PW1/B and that is why the charge had been

framed.

2. Mr. Satish Aggarwala, ld. Counsel for the DRI, has further

asserted that the seizing officer PW1 Shri B.K. Bhattacharya did not

appear for cross examination after charge. However, it is immaterial,

keeping in view the object behind obtaining of sanction for prosecution

; and in the event of any prosecution within having been incapacitated

or his sudden demise, his per-charge and pre-charge cross-examination

evidence will be valid.

3. Ld. Counsel has argued the second ground that as regards proof

of sanction for prosecution, even if it is assumed that after charge

cross-examination of Shri B.K. Bhattacharya was required for sanction

of prosecution, the respondent could not have been acquitted. At the

most, the court could have dropped the proceedings against him.

4. I here make it clear that ld. Counsel for petitioner has not argued

on other grounds, therefore, I will deal with the grounds argued above.

5. Ld. Counsel has relied upon the judgments of the Supreme Court

in State of Tamil Nadu vs. M.M. Rajendran, (1998) 9 SCC 268; and

State of Haryana v. N.C. Tandon, 1977 SCC (Crl.) 462.

6. I note, the trial judge has recorded in its impugned judgment that

PW1 Shri B.K. Bhattacharya, who was the complainant, did not appear

in the court to face full cross-examination by the accused and was only

partly cross-examined, therefore, the part testimony of PW1 could not

be read at all either in favour of the prosecution or against the accused.

7. It is further recorded, in fact PW2 Shri L.D. Rajput, who

allegedly seized the recovery (gold biscuits and Indian currency) from

the accused in the presence of two independent witnesses vide

punchnama dated 01.11.1990, which has been proved as Exh. PW2/A,

shows that the said punchnama dated 01.11.1990 was prepared in the

presence of two independent punch witnesses, i.e., Shri Rajesh son of

Shri Balbir Chand and Shri Pradeep son of Shri Dunni Chand.

However, as per record, the prosecution had failed to examine the

above mentioned independent public witnesses without any sufficient

reasons although they were cited as witnesses in the list. The non-

examination of the abovesaid independent public punch witnesses by

the prosecution was a very material lacuna in this case, therefore,

benefit of doubt goes in favour of the accused.

8. Further, it is recorded that PW2 deposed in his cross-

examination before charge that he was not aware if the statements of

punch witnesses were recorded by the adjudicating authority in which

they had denied that no gold was recovered from the accused.

9. In cross-examination after charge, PW3 Superintendent, Central

Excise Shri D.A. Nistane also deposed that no statement of punch

witnesses was recorded by him nor he recorded the statement of the

seizing officers. The abovesaid independent public punch witnesses as

mentioned in Exh. PW2/A would have been the most material

witnesses for the prosecution, however, as mentioned, the prosecution

failed to examine them as witnesses in this case. Therefore, it was a

very material lacuna in the case of the prosecution which cast a very

strong doubt over the seizure memo/punchnama dated 01.11.1990 and

was absolutely fatal to its case.

10. Thus, the ld. Trial judge has opined that benefit of doubt goes in

favour of the accused who is entitled to acquittal in the present case.

11. I note, the ld. Trial judge has also dealt the cases referred to by

the ld. Spl. Public Prosecutor before him. I have no hesitation to say

that the same judgments also cited before this Court, viz. State of

Tamil Nadu(supra) and State of Haryana (supra), have no relevance

in the facts and circumstances of the case.

12. The judgments referred to by the ld. Counsel for the petitioner

would have been relevant if the ld. Trial judge had discharged the

accused at the initial stage on the prosecution sanction or acquitted the

accused only on the ground of the sanction is not proved.

13. I find that the ld. Trial judge while recording his opinion, has

recorded that in view of the above said discussion, the prosecution has

failed to prove beyond reasonable doubt, on the charge against the

accused, and therefore, the petitioner/accused was acquitted from the

charges under Section 135(1)(b) of the Customs Act, 1962. Therefore,

I am of the considered opinion that ld. Trial judge has acquitted the

accused not only on the ground argued but also considered the other

evidence also.

14. I find no discrepancy in the impugned judgment, therefore, I am

not inclined to interfere with the same.

15. Accordingly, the Crl. LP No.403/2011 is dismissed.

16. No order as to costs.

SURESH KAIT, J

FEBRUARY 07, 2012 RS