Directorate Of Revenue ... vs Gurmej Singh & Ors.
2012 Latest Caselaw 3744 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRIMINAL M.C. NO.1412 OF 2004

                                       Decided on : 2nd July , 2012

DIRECTORATE OF REVENUE INTELLIGENCE
                                 ...... Petitioner
            Through: Mr. Satish Aggarwala, Advocate.

                              Versus

GURMEJ SINGH & ORS.                          ......     Respondents
            Through: None.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. By virtue of the present petition under section 482

Cr.P.C., the petitioner, that is, the Directorate of Revenue

Intelligence (hereinafter referred to as DRI), has challenged

the order dated 8.12.2003 by virtue of which the learned

ACMM, New Delhi, had discharged the accused persons on

account of lack of territorial jurisdiction, however, liberty was

granted to the complainant to file the complaint before the

concerned court having the jurisdiction in accordance with law.

2. Briefly stated, the facts of the case are that a complaint

under Section 135 (1) (b) of the Customs Act, 1962, came to

be filed against four persons, namely, Lakhwinder Singh @

Lukha Pusia, Gurmej Singh, Jagbir Singh and Harkesh Chand.

In the present petition, so far as accused Lakhwinder Singh is

concerned, he is declared as proclaimed offender by the trial

court and, therefore, he is not impleaded as a party. Accused

Jagbir Singh and Harkesh Chand (respondent Nos.2 and 3

respectively herein) are stated to be not represented while

accused Gurmej Singh (respondent No.1 herein) is the only

accused who is represented before this court. The allegations

contained in the complaint were that on the basis of a specific

information that a white coloured Maruti Van bearing

registration No.CH-01A-8195, allegedly carrying contraband

gold, would be passing through Panipat and enroute to New

Delhi, the officers of DRI, Delhi Zonal Unit, kept surveillance at

Kohend Police Post at National Highway (1), Haryana on

23.7.1990. The officers of the DRI noticed that a white Maruti

Van with the aforesaid registration number approached the

Police Post at about 9:30 hours on the said date. The driver

was signaled to stop but instead of stopping, he sped away

towards Panipat side. The DRI officials then chased the white

Maruti Van and intercepted it near Panipat at about 10 hours

on the same date. One of the occupants of the Van, whose

name was later on revealed as Gurmej Singh, respondent

No.1, tried to flee but he was over-powered. The Van along

with its occupants, Gurmej Singh and Jagbir Singh, the driver,

were escorted to Delhi by officials of the DRI at Paryavaran

Bhawan, CGO Complex, New Delhi. It is alleged in the

complaint that no proceedings could be conducted at the place

of interception for security reasons as large crowd had

gathered there. On rummaging of the Van in Delhi, in the

presence of respondent Nos.1 and 2 and two independent

witnesses, three cloth vansalies containing 300 gold biscuits

bearing foreign markings were recovered from a secret cavity

inside the Maruti Van. The Government approved valuation of

the gold bars was fixed at Rs.1,15,48,350/-. The Van was also

seized. Statements of the accused persons under Section 108

of the Customs Act were recorded and thereafter, the

complaint was filed on 2.7.1991. The learned ACMM took

cognizance and directed issuance of summons against the

accused persons. Since this was a complaint filed by the

officials of DRI, in their official capacity, no pre-summoning

evidence was adduced and after the service of all the accused

persons, the prosecution started its pre-charge evidence. It

was at the stage of pre-charge evidence in the year 2003, that

an application came to be filed by the accused Gurmej Singh,

respondent No.1, under Section 245 (2) Cr.P.C. for his

discharge. The plea which was taken by the accused was that

the Delhi Court did not have the jurisdiction as the vehicle was

intercepted in Panipat, in Haryana and, therefore, the offence

was complete in terms of Section 177 of the Cr.P.C. in

Haryana itself.

3. The petitioner herein (DRI) filed the reply to the

application and contested the plea of the respondent/accused

for discharge on the ground of lack of territorial jurisdiction. A

preliminary objection was taken that the application is

hopelessly barred as it is filed after the expiry of more than 12

years from the date of taking cognizance and, therefore, the

objection with regard to the lack of territorial jurisdiction by

Delhi Court is deemed to have been waived by the

respondent/accused.

4. On merits, various grounds were taken that the Delhi

Court has the jurisdiction. The grounds which were taken

were (i) Detention, recovery and seizure of the gold was

affected in Delhi; (ii) there can be no offence without

happening of incident in relation to smuggled goods and the

offence came into light only when the smuggled gold was

detected in the van and the recovery was effected in Delhi

and; (iii) the statutory provisions contained in Sections 104 to

106 of the Customs Act, which provided for search, seizure

and the arrest of the accused was exercised in Delhi.

5. The learned ACMM, after hearing the learned counsel for

the parties has held that the Delhi Court did not have the

jurisdiction as the interception of the vehicle had taken place

at Panipat, which was admittedly not within the jurisdiction of

Delhi Court. The learned ACMM, in order to hold that the Delhi

Court did not have the jurisdiction, has placed reliance on a

judgment of Punjab & Haryana High Court in the case titled

Kanwarjit Singh vs. Union of India; 1994 (1) Crimes 255.

The facts of the said case were held by the learned ACMM to

be somewhat similar to the facts of the present case inasmuch

as in the said case also there was a specific intelligence report

that Kanwarjit Singh @ Pehalwan had arranged for smuggling

of 520 foreign marked gold biscuits into Amritsar sector of the

Indo-Pak Border which would be reaching Delhi in the evening

of 6.1.1988 concealed in Truck No.DIL-1677. In pursuance of

the report, the aforesaid Truck was intercepted at Kundli,

which happens to be in Panipat but at the Delhi-Haryana

Border, by the officials of the DRI. Multan Singh, accused

No.3 and Malkeet Singh were the occupants of the said Truck.

They were taken to the office of DRI, CGO Complex, Lodhi

Road, New Delhi. The Truck was searched in the presence of

two independent witnesses. Statements of the accused

persons were also recorded under Section 108 of the Customs

Act and thereafter, the complaint was purportedly filed in Delhi

and the ACMM had taken cognizance and issued non-bailable

warrants against the accused persons for procuring their

attendance.

6. It was at that stage, that the accused persons had gone

to Punjab & Haryana High Court challenging the issuance of

warrants and one of the plea which was taken by the accused

persons in the said case was that the Delhi Court did not have

the jurisdiction, which plea had been accepted by the High

Court with the following observations :-

"7. Since there is a manifest defect of jurisdiction in the court of the ACMM, New Delhi, to take cognizance of the offence committed at Kundli within the State of Haryana, the execution of the warrant against the petitioner will amount to interfering with his liberty otherwise in due course of law. The respondents are, thus, restrained from giving effect to the warrants of arrest issued against the petitioner by the court of ACMM, New Delhi and from arresting him and also from proceeding further with this complaint. This order shall, however, not debar the respondent from seeking legal remedies against the petitioner before the proper

forum. With these directions, this petition stands disposed of."

7. It is on the basis of this judgment that the learned

ACMM, New Delhi, has, in the present case, observed since the

facts of the said case are similar and the point of territorial

jurisdiction has been raised and notwithstanding the fact that

it has been raised after 12 years, the learned ACMM, in

exercise of his power under Section 245 (2) Cr.P.C.,

discharged the accused persons for lack of jurisdiction.

8. I have heard the learned counsel and have gone through

the record. At the outset, it must be said that the learned

ACMM seems to have fallen into grave error in rejecting the

complaint after a lapse of 12 years on the ground of lack of

jurisdiction and discharging the accused/respondents. Firstly,

the learned ACMM has completely ignored the fact that the

factual matrix in the reported case and the present case, no

doubt, were somewhat similar, but the stage at which the

court's jurisdiction was invoked for discharging the accused on

account of lack of territorial jurisdiction was totally different.

In the reported case, it was at the stage of summoning itself

though, it is not clear but the operative portion of the

observations passed by the Punjab & Haryana High Court

would make it amply clear as it had quashed the issuance of

non-bailable warrants against the accused persons in the said

case, therefore, that makes one to draw an inference that at

the stage of threshold itself, the accused was vigilant to raise

the question of territorial jurisdiction of the court taking the

cognizance. While as in the instant case, the accused has not

only participated in the proceedings by subjecting the

witnesses to cross-examination at the pre-charge stage itself,

but has continued to do so for a long 12 years and it is only

after expiry of these years that the accused has woken up to

file an application under Section 245 (2) Cr.P.C. seeking

discharge for lack of jurisdiction. It is not only the lack of

jurisdiction which would have been relevant at the stage when

the application was filed, but it was incumbent for the learned

ACMM to see as to what was the serious prejudice being

caused to the accused persons by proceeding ahead with the

trial at that stage because the fundamental question of setting

aside a conviction or a sentence or even abandoning the trial,

if I may say so, on the ground of lack of jurisdiction, the

accused must show that there is some serious prejudice

caused to him by such proceedings. Conversely, we can say

that the Code of Criminal Procedure recognizes a difference

between irregularities which may vitiate the trial and

irregularities which may not vitiate the trial at all. In this

regard, one needs to refer to Section 460 of the Cr.P.C. which

deals with irregularities which do not vitiate the proceedings.

Section 460 sub-Clause (e) of the Cr.P.C. specifically lays

down taking of cognizance of an offence under clause (a) or

clause (b) of sub-section (1) of Section 190 Cr.P.C., if the

Magistrate does not have the jurisdiction, it will not vitiate the

proceedings meaning thereby that even if the Magistrate, that

is, the ACMM in Delhi did not have the jurisdiction to take the

cognizance but had actually taken the cognizance, the trial

proceedings could not be vitiated on account of the lack of

competence of the learned ACMM in taking the cognizance

unless and until some serious prejudice is shown by the

accused/petitioner.

9. Further, the word used in Section 177 Cr.P.C. is

'ordinarily' which according to the Oxford Dictionary means

regular, normal, customary, usual and not exceptional. Thus,

the basic rule contained in Section 177 Cr.P.C. is that crime is

essentially local in nature but this is not the absolute rule.

Sections 178 to 185 Cr.P.C. lay down exceptions to this rule

apart from the exceptions which may be provided in special

statutes. Section 462 Cr.P.C. specifically lays down that no

finding, sentence or order of any Criminal Court shall be set

aside merely on the ground that the inquiry, trial or other

proceedings, in the course of which it was arrived at or

passed, took place in a wrong sessions division, district, sub-

division or other local area, unless it appears that such error

has in fact occasioned a failure of justice.

10. Therefore, the aforesaid two provisions make it

abundantly clear that law has gone to such an extent that

even if the cognizance is taken where the learned Magistrate

does not have the competence to take such a cognizance on

account of the lack of territorial jurisdiction or lack of

competence to deal with the subject, the proceedings do not

get vitiated ipso facto. The law is extended even to such an

extent that the conviction and sentence in such a contingency

cannot be set aside, unless and until a failure of justice is

shown by the accused. If this failure of justice would have

been shown by the accused to the learned ACMM only then, in

my opinion, the learned Magistrate could have discharged the

accused under Section 245 (2) Cr.P.C. for the lack of

jurisdiction of the Delhi Court. Because of the above reasons,

I feel the learned ACMM's order is not sustainable in law.

11. Secondly, the learned Magistrate has failed to notice the

subtle difference between the Panipat case and the Delhi case

inasmuch as it does make lot of difference in a case where said

question is raised at the threshold, in comparison to a case

where it is raised after inordinate delay of 12 years.

12. Thirdly, even on merits, I feel that the Delhi Court will

have jurisdiction. This is because of the fact that only

detention of the vehicle and the accused person in Panipat

does not make the offence complete. The substantial action

which constitute the offence of carrying the contraband was

committed by them in Delhi because vehicle was searched in

Delhi, gold was seized in Delhi and panchnama was prepared

in Delhi, therefore, the Delhi Court has the jurisdiction, in my

view.

13. There is another aspect to the matter that Section 245

(2) Cr.P.C. lays down that if the charges against the accused

are groundless then, he may be discharged. The language of

the Section 245 Cr.P.C. use the term 'groundless', the charges

must be groundless, meaning thereby a perusal of the

allegations levelled against the accused must not prima facie

constitute the offence which is alleged to have been committed

by him. Only then it can be said that the charges against him

are groundless meaning thereby that while discharging the

accused under Section 245 (2) Cr.P.C., the court will cursorily

look at the merits of the allegations and come to the finding as

to whether it prima facie holds the ingredients of the offence

being established or not and accordingly, either discharge the

accused holding that the charges are groundless or decide to

proceed further in the matter. This exercise has not been

done by the learned ACMM. In other words, if the complaint is

being returned by a court on account of lack of jurisdiction, it

could not be done under Section 245 (2) Cr.P.C. under the

heading that the charges are groundless. It may be done by

the learned court in some other provision or by the accused by

invoking the powers of the High Court.

14. For the reasons mentioned above, I set aside the order of

the learned ACMM dated 8.12.2003 and remand the matter

back to the learned trial court, who will start the complaint

from the place where it had discharged the accused persons.

The parties are directed to appear before the learned ACMM on

31st July, 2012.

V.K. SHALI, J.

JULY 02, 2012 'AA'