Bhupinder Singh vs Dri
2016 Latest Caselaw 6263 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 28th September, 2016

+                   CRL.M.C. 1198/2011

      BHUPINDER SINGH
                                                                 ..... Petitioner
                          Represented by:      Ms. Hiteshi Arora, Adv.

                          versus

      DRI
                                                              ..... Respondent
                          Represented by:      Mr. Satish Aggarwala, Mr.
                                               Amish Aggarwala, Advs.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. The petitioner was facing trial for offence under Section 135 (1)(b) of the Customs Act (in short the Act). At the stage of charge, the petitioner pleaded not guilty and thus trial continued. Later on 7th August, 2006 the petitioner filed an application seeking to avail benefit of the provision of plea bargaining under Section 265(E) Cr.P.C., however the same was disposed of as not maintainable vide order dated 11th November, 2011 by the learned Trial Court as the petitioner was facing trial for a socio-economic offence.

2. Thus, on 3rd April, 2007 order for framing charge was passed which was framed on 4th July, 2007 when the petitioner pleaded not guilty.

3. The petitioner again filed an application for revising his application dated 7th August, 2006, however as the same had been dismissed, the second application was also dismissed. On 3rd April, 2010 the petitioner filed a third

application, this time requesting the learned ACMM to accept the plea of guilt and take a lenient view in the matter. The learned ACMM on the said application noting the facts of the case convicted the petitioner for offence punishable under Section 135(1)(b) of the Customs Act. The learned ACMM in para 4 noted:

"4. Today accused Bhupinder Singh expressed his willingness to plead guilty. I have personally inquired the matter from the accused I have explained to the accused that he is not bound to make any confessional statement and his confession may lead to his conviction and he may think again. Accused persisted his plea of guilt."

4. Vide the order dated 10th May, 2010 the learned ACMM noting the special circumstances that the petitioner had faced trial for 20 years, was aged 57 years, suffering from acute financial crisis and his son was hospitalized suffering from Hepatitis 'C' awarded simple imprisonment for a period of six months with the benefit of Section 428 Cr.P.C. which was less than the minimum sentence of one year imprisonment prescribed. Since the petitioner had already undergone more than six months imprisonment he had not to undergo any further sentence.

5. Aggrieved by the order on sentence, the respondent filed a revision petition before the learned Additional Sessions Judge which vide the impugned order dated 11th January, 2011 held that the plea of guilt of the petitioner was not voluntary as he did not plead guilty at the time of framing of charge, he did not admit the case of the prosecution in the application or in the subsequent proceedings and the fact that he was a poor person or his son was ailing would not be special circumstances. Thus the judgment of conviction and the order on sentence were set aside and matter remanded

back for trial.

6. Undisputedly before the learned Special Judge the petitioner was not present in person. The learned Additional Sessions Judge did not ascertain from the petitioner in person whether his plea of guilt was voluntary or not. Merely because in his application he did not admit the allegations of the prosecution, or that he did not plead guilty at the time of framing the charge, the learned Trial Court could not have come to the conclusion that the plea of guilt was not voluntary. There is no finding by the learned Additional Sessions Judge that any force or coercion was used on the petitioner by the respondent or by the Court to accept the plea of guilty.

7. As noted above though pleading not guilty at the time of framing of charge, the petitioner filed an application seeking to avail the benefit of plea bargaining under Section 265(E) Cr.P.C. wherein he admitted his guilt which is a pre-condition for availing the benefit which was not allowed due to the offence being socio-economic and then again filed an application for reviving the application of plea bargaining which was also dismissed and then filed a third application pleading guilty. Further the learned ACMM ascertained the voluntariness from the petitioner in person. Thus the learned Additional Sessions Judge erroneously arrived at a finding that the plea of guilt arrived at by the petitioner was not voluntary. The impugned order setting aside the judgment of conviction dated 10th May, 2010 is therefore liable to be set aside.

8. The basic grievance of the respondent due to which revision was preferred before the learned ASJ was that the reasons given by the learned ACMM for awarding the sentence less than the minimum have been specifically provided to under the Act as not special and adequate reasons.

Section 135(3) of the Customs Act provides as under:

"(3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than [one year], namely:--

(i) the fact that the accused has been convicted for the first time for a reference under this Act;

(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;

(iv) the age of the accused.]"

9. Thus the Statute provides that even if an accused is convicted for the first time or that he has paid penalty or he is not the principal offender or his age will not be considered as special and adequate reasons for awarding sentence less than the minimum sentence. As noted above the learned ACMM while awarding the sentence besides considering the fact that the petitioner was aged 57 years also considered the fact that the trial was pending for the last 20 years, the petitioner was suffering from acute financial crisis and his son was also hospitalized having suffered from Hepatitis 'C', medical record whereof was placed on record and was not disputed by the complainant/respondent. As noted above besides the age of the petitioner the three other reasons provided by the learned ACMM to award the sentence less than the minimum cannot be said to be not adequate and special reasons. A delayed trial is always a mitigating factor in

awarding sentence besides the fact that a family member especially a child or old parents or spouse is hospitalized. Even during the course of present proceedings this Court got verified the documents placed on record by the petitioner showing the illness of his son and as per the report submitted by the respondent the medical documents have been found to be genuine.

10. As noted above the learned ASJ only dealt with the aspect that the plea of guilt of the petitioner was not voluntary which was totally without any basis. Consequently, the impugned order dated 11 th January, 2011 is set aside and the judgment of conviction and order on sentence dated 10 th May, 2010 are restored.

11. Petition is disposed of.

Crl.M.A. 6566/2012

1. By this application the respondent has sought recalling of the order dated 12th October, 2011 passed by this Court directing personal presence of the Director General of DRI, issuance of bailable warrants vide order dated 1st November, 2011 and order dated 2nd November, 2011 dispensing the personal appearance of the Director only for 7th December, 2011.

2. In Crl.M.C. 1198/2011 notice was issued to the respondent, however since none appeared this Court vide order dated 12th October, 2011 directed Director DRI to be personally present on the next date of hearing and when on the next date i.e. 1st November, 2011 the Director DRI was not present, the Court issued bailable warrants against the officer for a sum of `10,000/- to be executed by the SHO Lodhi Colony and thereafter it exempted his presence only for 7 December, 2011.

3. Since the petition has now been finally decided and after 7th December, 2011 this Court did not insist on the presence of Director DRI, the application is allowed recalling the orders dated 12th October, 2011 and 1st November, 2011 to the extent noted above.

4. Application is disposed of.

(MUKTA GUPTA) JUDGE SEPTEMBER 28, 2016 'ga'