Directorate Of Revenue ... vs Narendra Sogani & Ors.
2012 Latest Caselaw 3040 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. M.C. 3193/2011 & CRL.M.A.11352/2011

                                             Date of Decision : 08.05.2012
DIRECTORATE OF REVENUE INTELLIGENCE ...... Petitioner
                     Through: Mr. Satish Aggarwala,
                               Adv.
                                            Versus

NARENDRA SOGANI & ORS.                                    ...... Respondents
                     Through:                           Mr. S.C. Chawla, Adv.
                                                       for respondent nos.1,3 & 4

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

V.K. SHALI, J.

1. By virtue of the present petition filed under Section 482

Cr.P.C., the petitioner has assailed the orders dated

13.7.2010 and 28.1.2011. By the first order, the learned

Court of ACMM had imposed a cost of ` 2,000/- on the

petitioner on the ground of adjournment which was granted

for production of Prosecution evidence. So far as the order

dated 28.1.2011 is concerned, the same is being assailed on

the ground that the petitioner's evidence has been closed.

2. Briefly stated, the facts of the case are that the petitioner,

Directorate of Revenue Intelligence (DRI), through its

Intelligence Officer, M.T. Murli filed a complaint under Section

135(1) (b) of the Customs Act, 1962. The allegations made in

the complaint were that on specific information by the officers

of the DRI, an ambassador car, bearing registration No.RNI-

600,was intercepted at Kacha Bagh, Delhi on 27.6.1990 at

about 10:30 hrs. The said car, along with its four occupants,

namely, Narendra Sogani, Ajay Jain, Kanhiya Lal Sharma and

Shambu Singh Daroga were escorted to DRI Office at CGO

Complex, New Delhi for search of the occupants of the car as

well as the car itself. It is alleged that on search of the car

thoroughly, it resulted in recovery of seven bricks of silver

wrapped with canvas bags totaling 211 kgs. from a secret

cavity behind the backrest of the rear seat. In addition to this,

28 foreign marked gold biscuits were also recovered from the

possession of one accused, Ajay Jain. The said gold biscuits

were wrapped with adhesive tape and tied to his waist with

the cloth. The value of the silver was ` 14,13,700/- and the

value of the gold was ` 10,61,515/-. The articles were seized

and on the basis of the said information, a complaint was filed

against the petitioner.

3. The complaint came up for hearing, for the first time, before

the Court of the learned ACMM on 4.12.1991. It took the

petitioners nearly 15 years to produce the pre-charge

evidence. On 8.12.2006, after production of the pre-charge

evidence, a charge under Section 135(1)(b) of the Customs

Act was directed to be framed against the four respondents

for having acquired possession and carrying/keeping/

concealing and dealing with the gold and silver which they

had reason to believe was liable to confiscation under Section

111 of the Customs Act. After framing of the charges also,

nearly five years had gone by and the post-charge evidence

could not be completed. This was despite the fact that

sufficient number of opportunities were granted to the

petitioner. Ultimately, on 13.7.2010, the learned ACMM, after

examining PW6 and PW7, took note of the fact that no other

witness was present. An adjournment was sought on behalf of

the petitioner on the ground that there were five more

witnesses who were to be summoned but they have not

received any report from the Department in respect of three

witnesses. On request of the petitioner for the grant of further

opportunity, one more opportunity was granted, subject to

payment of cost of ` 2,000/-. The cost was directed to be paid

to the accused persons and the matter was adjourned to

28.1.2011. The petitioner also filed an application under

Section 311 Cr.P.C. for summoning of Court witnesses which

was allowed on the ground that the case has already been

adjourned for another date.

4. The first grievance of the learned counsel for the

petitioner, Mr. Satish Aggarwala, is that he has no objection

to the payment of costs to the Delhi High Court Legal Services

Committee but there is no provision in the Cr.P.C. under

which this cost can be imposed by this Court and be given to

the accused persons. It has been contended that the accused

have been substantially responsible for the delay and by

directing the payment of costs to them, it will be putting

premium on their conduct. It is, accordingly, prayed that this

portion of the order deserves to be set aside.

5. So far as Mr. S.C. Chawla, the learned counsel for the

respondent nos.1, 3 and 4 is concerned, he has stated that he

has no objection in case the cost is not given to the accused

persons and the same is paid to the Delhi High Court Legal

Services Committee.

6. I have carefully considered the submissions made by the

learned counsel and have also considered the two orders,

bearing Nos. Crl.M.C. 1792/2010 dated 24.5.2010 and

WP(Crl.) 1146/2010 dated 7.2.2011, which have been

referred to by the learned counsel for the petitioner passed by

this Court where the cost, which had been imposed by the

learned ACMM, had been set aside and not given to the

accused persons.

7. I fully agree with the submissions of Mr. Satish Aggarwala

that in the Cr.P.C., there is no specific provision under which

the cost, which has been imposed on the Prosecuting Agency,

can be given to the accused persons. Even otherwise also, it

is normally not done in a criminal case where the cost is

imposed on the Prosecution, the same be given to the

accused persons, more so, where there is an allegation that

the accused themselves have been responsible for the delay.

In the instant case, the learned counsel for the petitioner has

stated that he has no objection to the deposit of cost with the

Delhi High Court Legal Services Committee and a statement

has been made by the learned counsel for the accused

persons also that he has no objection in case the cost is

permitted to be deposited with the Delhi High Court Legal

Services Committee. Therefore, this need not be gone into

further. A consent order is passed, setting aside this portion

of the order of the learned ACMM, directing the payment of

cost to the accused persons. Let the cost be deposited with

the Delhi High Court Legal Services Committee by the

petitioner. To this extent, the order of the learned ACMM

dated 30.7.2010 is set aside.

8. The second submission, which has been made by the learned

counsel with regard to the second order dated 28.1.2011, is

that the evidence of the petitioner ought not to have been

closed, as the petitioners' application under Section 311

Cr.P.C. had been allowed, permitting the petitioner to produce

four witnesses and he had taken out the summons and that

they were served for 28.1.2011. It has been contended that

once the witnesses were served, it was for the Court to have

procured their attendance. It has been contended that the

learned ACMM had erroneously observed that as no witnesses

were present, therefore, the evidence of the petitioner was

closed. It was contended that in terms of Section 246(2)

Cr.P.C., after the Prosecution had produced the witnesses who

had been examined at the stage of pre-charge, the petitioner

can also produce other evidence in order to prove the guilt of

the respondents. It was contended since the application of the

petitioner under Section 311 Cr.P.C. was allowed and the

witnesses were served, the Court ought to have procured

their attendance.

9. Mr. Chawla has contended that the complaint, in the instant

case, was lodged in the year 1991 and more than 21 years

have gone by, but still the case is at the stage of

complainants' evidence and if the case continues at this pace,

it will take another decade to conclude the same. It is

contended that the respondents want an expeditious disposal

of trial and if the evidence is prolonged, the purpose of

expeditious disposal not only gets defeated, but also it causes

serious prejudice to the respondents, inasmuch as they have

to be present on each and every date of hearing. It has been

stated that the application of the petitioner was allowed for

the production of evidence on their own cost and risk and the

petitioner ought to have ensured the presence of the

witnesses. Since this was not done, the learned Trial Court

rightly closed the evidence of the petitioner.

10. I have carefully gone through the impugned order and have

perused the record, including the Trial Court record.

11. There is no dispute about the fact that every accused has a

right to have an expeditious disposal of his trial. This is now a

Fundamental Right guaranteed to an accused person under

Article 21 of the Constitution of India. In the instant case, the

Prosecution was initiated by the petitioner in the year 1991

and more than two decades have gone by and still the

Prosecution has not been able to conclude its evidence. If

these things are permitted to be done at the pace at which

the Prosecuting Agency wants to do, then it will take at least

another decade for the accused to face the trial. This is totally

unacceptable. Even if seen from the angle that the charge was

framed against the respondents way back in 2006, and since

then more than five years have elapsed, still the evidence of

the petitioner has not been completed.

12. I have perused the orders of the learned Trial Court. Even

after framing of the charges against the respondents,

sufficient number of opportunities had been given by the

Court and even on 13.7.2010, one final opportunity was given

to the petitioner. If the petitioner did not complete its

evidence, despite the final opportunity having been given, it

cannot be said that the evidence of the petitioner had been

erroneously closed. The application under Section 311 Cr.P.C.

was also allowed by the Court, but on the date on which the

application was allowed, the learned ACMM had noted that no

witness was present. Merely because the petitioner had

allegedly served the witnesses, it does not result in a situation

absolving the petitioner of its responsibility of producing the

witnesses. As a matter of fact, on 28.1.2011, the petitioner

had filed an application for dispensing with the payment of

costs, to which the learned Trial Court had not agreed to, but,

at the same time, the learned Trial Court had erroneously

noted that the cost was imposed as if the application under

Section 311 Cr.P.C. was allowed, while as the cost was not

imposed for allowing the application under Section 311 Cr.P.C.

I feel that the order of the learned Trial Court cannot be found

fault with, on account of the fact that sufficient number of

opportunities had been given to the petitioner and the

petitioner cannot be permitted to adduce evidence at its own

whims and fancies. The trial of the case against an accused,

whose liberty is in jeopardy, must be completed as swiftly as

possible but, in the instant case, two decades having gone by,

it cannot be said that the right, which is guaranteed under

Article 21 of the Constitution of India to the respondents, is

being observed in letter and spirit.

13. Because of the aforesaid reasons, I am not inclined to

interfere with the orders passed by the learned ACMM. In

addition to this, there is one more aspect that the order has

been passed on 28.1.2011, while as the petitioner has filed

the present petition after a delay of almost eight months,

which clearly shows that the petitioner is taking its action at

its own will, without realizing the importance of time. An order

of closure of evidence can be assailed by way of a revision

within a period of maximum of ninety days, while as, in the

instant case, the petition under Section 482 Cr.P.C. is filed

after expiry of almost 240 days. I, therefore, feel on this

ground also, the petitioner's petition is hit by delay and

latches.

14. In view of the above, the petition is partially allowed so far as

the payment of cost to the respondents/accused is concerned.

15. Trial Court record be sent back.

V.K. SHALI, J.

MAY 08, 2012 tp