Union Of India vs Gulam Mohd. Farooque
2014 Latest Caselaw 2979 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :01.7.2014.
                                   Judgment delivered on :08.7.2014
+      CRL.A. 179/2006
       UNION OF INDIA                                    ..... Appellant
                       Through          Mr. Pramod Bahuguna and
                                        Ms.Kavita, Advs.

                          versus

       GULAM MOHD. FAROOQUE
                                                        ..... Respondent
                          Through       Mr. M.Z. Chaudhary, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

This appeal is directed against the impugned judgment dated

15.04.2004 vide which the respondent (Gulam Mohd. Farooque) stood

acquitted under Section 132 and Section 135 (1) (a) of the Customs Act,

1962 (hereinafter referred to as the 'said Act); the Magistrate vide his

order dated 23.12.2003 had held the respondent guilty convicting him

under Sections 132 & 135 (1)(a) of the said Act.

The Union of India was aggrieved by the aforenoted findings of

the Sessions Judge and is in appeal before this Court.

Record reveals that on 11.01.1999, the respondent who was an

NRI and having stayed for 10 months at Doha (Qatar) had arrived at the

IGI airport with two checked-in baggages and one hand luggage. On

arrival, he was asked that if he had any dutiable items to which he

replied in the negative. He passed through green channel. At the exit

gate, he was stopped by the Custom officer and was enquired whether

he had any gold or silver items to which he again replied in the negative.

He was diverted for X-ray examination where the metal detector beeped

positive. Notice under Section 102 of the said Act was given to him. He

did not opt for search either before the Magistrate or before any senior

officer. On his personal search from his jacket, he was found carrying 10

gold biscuits, 4 gold bangles and two pairs of earrings valued at

Rs.5,24,700/-. The respondent was unable to furnish any document of

custom duty payment. The gold items and jacket were confiscated.

The prosecution in support of its case examined two witnesses;

the complainant Jainendra Jain was examined as PW-1. He was the

Custom Officer who had apprehended the respondent at the exit gate of

the airport. He had proved various documents including the complaint

Ex.PW-1/A, sanction Ex.PW-1/B, notice given to the respondent under

Section 102 of the said Act proved as Ex.PW-1/C. The gold purity

certificate and panchnama were proved as Ex.PW-1/D and Ex.PW-1/F

respectively. Ex.PW-1/E1, Ex.PW-1/E4 and Ex.PW-1/E5 were the

baggage ticket, air ticket and boarding card of the respondent. Ex.PW-

1/E6 was the custom declaration form signed by the passenger where the

last column reflected that there was no dutiable good being imported by

the respondent.

PW-2 R.K. Tyagi was the Superintendent, Customs who had

issued summons to the respondent under Section 108 of the said Act

proved as Ex.PW-2/B.

In the statement of the accused, recorded under Section 313 of the

Cr.PC, his plea was that he has been falsely implicated in the present

case; he admitted that he was an NRI and having lived in Doha for 10

months and was legally entitled to bring 10 kgs of gold. He declared the

gold to the Custom Officer posted at immigration hall but inspite of his

true declaration, the Custom Officer has falsely implicated him.

No evidence was led in defence.

On behalf of the appellant arguments have been addressed in

detail. It is argued that the judgment of the Sessions Judge upsetting the

view taken by the Magistrate is totally erroneous, and not relying upon

the versions of PW-1 and PW-2 was legally impermissible; submission

being that there was no stake of PW-1 and PW-2 in the matter; they

were admittedly performing their duty in their official capacity and there

was no grudge with the respondent and as such there was no reason for

the false implication of the respondent. It was argued that the defence

now set up is totally irreconcilable with the record. Impugned judgment

is liable to be set aside.

The respondent has refuted these submissions. Learned counsel

for the respondent has pointed out that the defence of the respondent all

along has been that he was carrying 1100 USD and had gone to the

custom declaration counter to pay the custom duty but for the reasons

best known to the Department, they had refused to take the duty and had

falsely implicated him. Submission being that the sum of 1100 USD

which he was carrying had illegally been usurped by the Custom

Department; additional submission being that there was no intention on

the part of the respondent to conceal the gold as he was admittedly

carrying it in his jacket pocket which clearly evidences that there was no

such intention on his part to make any false concealment. Submission

being that the Sessions Judge had rightly appreciated the fact that the

respondent was coerced into writing the statement under Section 108 of

the said Act and this is a case of pure false implication. There is also no

explanation as to why PW-1 working in his official capacity was not in

uniform; version of PW-1 and PW-2 is also contrary qua the presence of

the metal detector.

Record has been perused. PW-1 is the complainant. He has

proved the complaint Ex.PW-1/A. He has on oath deposed that on the

fateful day i.e. on 11.01.1999, he was posted at the exit gate of the green

channel at the custom arrival hall and when the respondent who was

exiting out from the green channel was queried at the entry of green

channel whether he was having any dutiable item he replied in the

negative. At the green channel, he was intercepted by PW-1 and was

again asked whether he had any gold or silver items to which he again

replied in the negative. He was then asked to go through the metal

detector. This gave a positive indication. Notice under Section 102 of

the said Act was served upon him. From the inner pocket of his jacket,

10 gold biscuits, 4 bangles and two pairs of earrings were recovered;

they were taken into possession vide memo Ex.PW-1/C. The travelling

documents of the respondent Ex.PW-1/E1 to Ex.PW-1/E6 were also

seized.

Ex.PW-1/E6 is the custom declaration form which bears his

signatures in his own handwriting and the last column which is a query

as to whether any dutiable goods were being imported, the passenger

had recorded 'Nil'. This document was put to the accused in his

evidence but no cross-examination has been effected on this document

by the defence counsel. Even in the statement of the accused recorded

under Section 313 of the Cr.PC, this incriminating document was put to

the respondent but again his answer was that this is a matter of record

making it amply clear that this document was never disputed by him.

Even before this Court, this document has been shown to the respondent

(present in Court) and after some scrutiny, his submission was that the

last column indicating the words 'Nil' was not written in his writing but

was in a different ink. This Court is not inclined to accept this

submission of the respondent which is totally belied and is an

afterthought and not having been so stated on earlier occasions i.e.

before the Magistrate or before the Sessions Judge, it is clearly false.

Even otherwise the ink appears to be no different. This document, in the

view of this Court, is a crucial document evidencing the fact that the

respondent who was a qualified Architect i.e. being an educated man

and in his own handwriting has declared that he did not have any

dutiable items. This document is wholly contrary to the defence set up

by the respondent (which emanated in his statement recorded under

Section 313 of the Cr.PC) wherein he stated that he had gone to the

custom counter to pay the duty but he was not allowed to do so.

PW-2 (as noted supra) was a formal witness. He had served the

summons to the accused and had recorded his statement under Section

108 of the said Act Ex.PW-2/B. This statement is in the handwriting of

the respondent himself and by no stretch of imagination can it be said to

be a coerced statement as it is running into six pages where certain

personal informations had been disclosed by the respondent relating to

his educational qualifications which was in his own personal knowhow

and could not have been forced out of him.

Qua the argument on the metal detector, PW-1 has categorically

stated that there was no metal detector at the immigration counter on the

date of the offence i.e. on 11.01.1999 and that is why the metal detector

could not detect metal (gold) which was carried by the respondent. It is

also well known that custom officers are in plain clothes. PW-1 was

accordingly in plain clothes and having been posted at the exit gate of

the green channel, he had intercepted the respondent. The defence of the

respondent that he was eager to pay the duty but was not allowed to do

so is wholly malafide. It does not match with the version set up in

Ex.PW-1/E6. Learned Magistrate has rightly convicted the respondent

both under Sections 132 & 135 (1) (a) of the said Act.

Prior to the amendment of Section 135 (1) (a) (in the year 2007),

there was minimum sentence of three years for a conviction under

Section 135 (1) (a) of the said Act. Record shows that the respondent

has undergone incarceration of about 80 days. Fine amount has since

been paid. This Court has been informed that the gold articles have also

been redeemed in separate adjudication proceedings and fine qua the

said amount also stands paid.

In 2004 (74) DRJ 446 Kamlesh Kumari Uppal Vs. Dept. of

Customs and Anr, an old lady who has crossed the green channel

wearing her jewellery without declaring the same and the fine also

having since been paid, her sentence was reduced to the period already

undergone by her.

In 2002 (81) ECC 693 Mohd. Jamil Vs. Customs, a Bench of this

Court had noted that as per the proviso of Section 135 of the Customs

Act, 1962 for special and adequate reasons, a substantive sentence less

than the minimum could be awarded; in that case, he having suffered a

long protracted trial since the year 1989 and having a medical ailment

also and having undergone incarceration of more than two months, the

period of sentence already undergone by him was the sentence imposed

upon him.

In this background, in the fitness of things, the sentence already

undergone by the respondent, would be the sentence to be suffered by

him. Respondent shall, however, pay an additional fine of Rs.20,000/-

which amount shall be paid within two weeks failing which, he shall

undergo SI for three months.

Appeal disposed of in the above terms.

INDERMEET KAUR, J

JULY 08 , 2014 A