Quasim Ali vs Additional Commissioner Of ...
2015 Latest Caselaw 4527 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment Reserved on: 01st May, 2015
                         Judgment Pronounced on: 30th June, 2015


                        CRL.REV.P. 661/2007
QUASIM ALI                                                ..... Petitioner
                         Through:    None.

                         versus

ADDITIONAL COMMISSIONER OF CUSTOMS .....Respondent
               Through: Mr. Satish Aggarwal and Ms. Pooja
                        Bhaskar, Advs.

CORAM:
HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1. Aggrieved by the judgment of conviction dated 27.02.2002 and order on sentence dated 02.03.2002 passed by the learned Additional Chief Metropolitan Magistrate, awarding the sentence to the petitioner to undergo rigorous imprisonment for a period of six months and fine of Rs.1,000/- for offence under Section 132 of the Customs Act, in default of payment of fine to further undergo simple imprisonment for 1½ months; to undergo rigorous imprisonment for a period of three years and fine of Rs.1,000/- under Section 135(1)(a) of the Customs Act, in default of payment of fine to further undergo simple imprisonment for 1½ months and upholding the judgment of conviction and sentence by the learned Additional Sessions Judge vide judgment dated 29.10.2007, the

present revision petition has been filed by the petitioner.

2. Factual matrix, as emerges from the record, is that the Customs filed a complaint against the petitioner/accused for offences punishable under Sections 132 and 135(1)(a) of the Customs Act, 1962. It was alleged that on the basis of an information, in the early hours of 23.01.1995, the petitioner was intercepted near the pre- paid taxi counter, outside the arrival hall of IGI Airport. The petitioner had arrived from Dubai from flight No.EK-702. In the presence of two independent witnesses, the petitioner was enquired who admitted that he was carrying smuggled gold concealed in his rectum as well as batteries of lamp-cum-fan, emergency light, lunch boxes etc. in his baggage. The petitioner was taken to New Customs House where he told that he would ease out the gold then and there. After sometime, the petitioner eased out one rectangular object wrapped with black colour tape, which was found to contain two gold biscuits of ten tolas each. From the checking of his baggage, three rectangular plates of gold were found concealed in the emergency light; three gold plates were found in the battery of lamp-cum-fan; six handles of gold were found from the lunch boxes; he was found having goods valued at Rs.67,190/- which were in excess of free allowance. A goldsmith was called who certified that the gold recovered was of 24 carat purity, collectively weighing 1370 grams valued at Rs.6,43,900/-. It was also revealed that one wire of gold polished with white substance was recovered from each of the fifty ball pens. The goldsmith opined it to be of 24

carat gold collectively weighing 106 grams and valued at Rs.39,962/-. 400 US $ were also recovered from the person of the petitioner. Gold and other articles were seized.

3. On completion of investigation, complaint was filed against the petitioner. The petitioner was summoned. Pre-charge evidence was recorded and charges under Section 133 and 135(1)(a) of the Customs Act were framed against the petitioner. The petitioner pleaded not guilty to the charges framed.

4. To prove its case, prosecution examined two witnesses. After conclusion of prosecution evidence, the statement of the petitioner was recorded under Section 313 Cr.P.C. in which he had claimed innocence. The petitioner opted to lead defence evidence, but he did not adduce any defence evidence. The learned Additional Chief Metropolitan Magistrate vide judgment dated 27.02.2002 held the petitioner guilty for the offence punishable under Section 132/135(1)(a) of the Customs Act and convicted him for the said offences. The order on sentence was passed on 02.03.2002.

5. Thereafter, the petitioner filed criminal appeal bearing Criminal Appeal No.12/2002. The learned Additional Sessions Judge vide judgment dated 29.10.2007 upheld the conviction and sentence awarded to the petitioner.

6. Feeling aggrieved by the same, the petitioner has preferred the present revision petition to set aside the judgments rendered by the Courts below and claiming acquittal.

7. During the course of arguments, nobody appeared on behalf of the petitioner to advance arguments, but the written synopsis on behalf of the petitioner had already been filed.

8. In the written synopsis filed on behalf of the petitioner, it is mentioned that the compounding application of the petitioner filed before the Chief Commissioner of Customs has not been decided due to which contempt of Court proceedings have been initiated.

9. During the pendency of present revision petition, it came on record on 12.02.2009 that the application moved by the petitioner for compounding the offence had been dismissed by the respondent. On 12.11.2009, notice was ordered to be issued to Sh. Abhijit Bhattacharya, the then Chief Commissioner (Preventive), Delhi Zone (retired) to show cause as to why action under the contempt of Court be not taken against him. The contempt proceedings against Sh. Abhijit Bhattacharya were dropped vide order dated 09.04.2013 by this Court.

10. Perusal of record shows that the witness PW1 Sh. Santosh Kumar, Inspector, Preventive, Customs had proved the complaint filed by him as Ex.PW1/A; the said complaint was filed on the basis of sanction and authorization Ex.PW1/B accorded by Sh. M.M.S. Sawhney, Collector, Customs, Delhi; on the basis of information he along with other officers of Customs Preventive department and two independent witnesses intercepted the petitioner in the early hours of 23.01.1995 near the pre-paid taxi counter outside the

arrival hall of IGI Airport, New Delhi; petitioner had arrived from Dubai by flight No.EK-702; on query, the petitioner admitted that he was carrying smuggled gold concealed in his rectum as well as number of other articles in his baggage such as batteries of lamp, emergency light, lunch boxes etc.; petitioner was escorted to Customs House; petitioner told that he would ease out the gold in the customs house itself; after about 15 minutes, petitioner eased out one rectangular shaped object wrapped with black tape; on examination, it was found to contain 2 gold biscuits of 10 tolas each; 400 US dollars were recovered from his personal search; on examination 3 plates of gold were found concealed in the emergency light; 3 plates of gold were found concealed in the battery of lamp-cum-fan; on examination three lunch boxes were found to be fitted with two handles on two sides which were made of gold and polished with white substance; bags were found containing goods valued at Rs.67,190/- which were in excess of free allowance goods; a gold smith was called who opined the gold to be of 24 carat purity, collectively weighing 1370 grams valued at Rs.6,43,900/- (MV); gold, goods and articles were seized; five packets of ball point pens were also recovered each containing 10 ball point pens; on examination, one wire of gold was recovered from each of the 50 ball pens; panchnama Ex.PW1/C was prepared which was signed by him, petitioner and witnesses; he proved the documents as Ex.PW1/D1 to D7, purity certificate as Ex.PW1/E; purity certificate with regard to gold wires as Ex.PW1/F; petitioner was arrested vide memo Ex.PW1/G; witness duly identified the

case property in the Court.

11. During cross examination, PW1 stated that the specific information was by name; the panch witnesses were not from the department; he had not cited them as witnesses in any other case; he denied that the panch witnesses were stock witnesses; petitioner was intercepted in the early hours of the morning at about 4.25 a.m.; after interception, petitioner was taken to the Customs house; statement of petitioner was recorded in his presence.

12. Similarly, PW2 Sh. S.M. Aggarwal, Customs Superintendent (Preventive), New Customs House stated that on 23.01.1985, petitioner appeared before him and tendered his voluntary statement under Section 108 of the Customs Act, 1962 Ex.PW2/A; on the same day, petitioner tendered his another statement Ex.PW2/B; he issued summons Ex.PW2/C on 23.01.1995 to the petitioner; on 21.02.1995, he issued summons Ex.PW2/D to Sh. Ganda Ram in pursuance of which, he tendered his statement Ex.PW2/E.

13. During cross-examination, PW2 denied that the petitioner was forced to make some involuntary statement and also to sign on certain already written papers.

14. There is enough evidence on record that the smuggled gold was recovered from the person as well as possession of the petitioner. The prosecution witness PW1 Sh. Santosh Kumar himself conducted the recovery and seizure proceedings. The confessional statement of the petitioner was recorded before PW2 who duly

supported the case of the prosecution. The testimony of both these prosecution witnesses remained unchallenged. The petitioner has failed to put any dent to the testimony of prosecution witnesses through their cross-examination.

15. It is a settled law that the confessional statement made by an accused under Section 108 of the Customs Act is admissible in evidence for prosecution under section 135 of the Customs Act. Though, it was the case of the petitioner that he had retracted his confessional statement, but he failed to show that the same was recorded under any inducement or promise or threat or the same was tutored one. It has been shown from the record that the petitioner made the statement voluntarily and the same is admissible in evidence.

16. I have gone through the ratio of judgment in case of Ram Briksh Singh and Others vs. Ambika Yadav and Another (2004) 7 SCC 665 in which it was observed that the revisional court does not function as a court of appeal and, therefore, cannot re-appreciate the evidence. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. The jurisdiction can be invoked to correct the wrong appreciation of evidence. Though the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice. The High Court is not required to interfere in the concurrent finding of

facts. This Court is of the considered opinion that the present case is not a fit case where the revisional jurisdiction is required to be exercised on the concurrent finding of facts recorded by the Courts below.

17. This Court does not find any procedural irregularity, overlooking of material evidence, misreading of the same or miscarriage of justice. There is no jurisdictional error in the judgments passed by the Courts below. Neither there is any failure to exercise the jurisdiction or exceeding of jurisdiction by the learned trial Court and appellate Court while passing the judgment. The discussion made above in the light of evidence/material led by the prosecution, does not warrant any interference in the conclusion drawn by the Courts below. Thus, the judgment of conviction and order on sentence passed by the learned trial Court as well as the judgment passed by the learned appellate Court are upheld. The petitioner is directed to surrender before the learned trial court concerned to serve the sentence of imprisonment.

18. Consequently, the present revision petition is dismissed as devoid of merit. Trial court record be sent back.

P.S.TEJI, J.

June 30, 2015 dd