9911796707
TMI Blog2014 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ys Flight No. TG 914. The Respondent was holding an Indian passport issued from Chandigarh in the name of Mohan Lal S/o Ram Lal. The Respondent was travelling with one of his friends, Mr. Manohar Lal Grover who was also holding an Indian passport issued from Chandigarh. 3. In the evidence of PW-2, it emerged that the travel documents and the baggage of both passengers were examined. Mr. Grover disclosed that he was carrying only one hand bag. He also disclosed that the other passenger travelling with him in the name of Mr. Mohan Lal was actually Mr. Joginder Pal Jain S/o P.L.Jain, a resident of Moga in Punjab. According to PW-2, the Respondent also admitted that his actual name was Mr. Joginder Pal Jain but had got a passport made in an assumed name. It was found that the Respondent had checked in one cardboard carton, one sea green colour suitcase and one briefcase of black colour of Dunsen make. The Respondent was asked to declare the contents of the baggages. He was asked whether they contained any restricted or prohibited items, or currency - foreign or Indian - or if he was carrying any such item on his person. He denied carrying any such items. Mr. Grover declared that he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 at 1.30 am. It had already been arranged between him and the Respondent that they would meet at the Broadway Hotel. He stated that the Respondent had on his own come to Delhi from Moga. Thereafter Mr. Grover reached the IGI airport at his own at around 10.30 pm. The Respondent reached there at 11.15 pm. They both entered the airport building together. As Mr. Grover was not fully aware of the procedure at the airport, the Respondent took his passport, ticket and small hand bag. The Respondent kept the hand bag in a trolley along with his own baggage consisting of one sea green suitcase, one card board carton and a black briefcase. He told Mr. Grover that he would manage and that Mr. Grover should not worry. Later both of them reported at the Thai Airlines counter. The Respondent presented Mr. Grover's passport and baggage along with his own at the counter. Two boarding cards were issued to the Respondent and he returned to Mr. Grover his ticket and passport. Thereafter both of them reported at the departure hall. Mr.Grover stated that when the Customs Officer at the immigration counter asked him whether he was carrying any checked-in baggage, he replied that he was carrying only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd bag bearing Tag No. 95-10-47, (the sea green colour suitcase) was stapled to the air ticket of Mr. Grover. He then more or less repeated what Mr. Grover had stated about the happenings thereafter. Inter alia, he stated that the sea green colour suitcase was not checked-in on his air ticket but on the ticket of Mr. Grover. This was intentionally done by him by presenting his and Mr. Grover's baggage together at the airline counter to escape detection by the Customs Staff. He stated that the foreign currency found in his baggage was procured by him from several persons in Ludhiana who dealt in foreign currencies but he did not know their names and addresses. He stated that Mr. Grover had no concern with the recovered currencies/ traveller's cheque/demand drafts etc. He stated that these were to be handed over to Mr. Fauzdar Singh, a resident of Muddocks Road, Vancouver Canada who was to meet him at Hotel Imperial in Hongkong on 1st February 1988. Mr. Fauzdar Singh had promised to have the Respondent migrated and settled in Canada. Mr. Fauzdar Singh had further asked the Respondent to arrange whatever money he could and also promised to give him a loan to enable him to settle down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a resident of Moga, Punjab. DW-1 knew Mr. Grover. He also knew the Respondent. He claimed that on 27th January 1988 he went to Faridkot to see Mr. Grover and that he and Mr. Grover travelled together by train from Faridkot to Delhi on 27th January 1988. He stated that Mr.Grover was having one light green colour suit case and one zipper bag and that DW-1 was having one briefcase only. Before reaching Bhatinda, Mr. Grover got his right thumb injured with the window of the train compartment. He claimed that when the train reached Bhatinda somebody came to see Mr. Grover. When they reached Delhi, Mr. Grover accompanied by DW-1 went to the residence of a friend of DW-1 in East of Kailash where first aid was given to the right thumb of Mr. Grover. He claimed that he also accompanied Mr. Grover to Broadways Hotel where they met the Respondent. Since Mr. Grover had injured his right thumb, the Respondent wrote down certain figures on his behalf. He claimed that just before entering the airport, Mr. Grover handed over to DW-1, two inland letters (Ex.DW1/A and Ex.DW1/B), requesting him to keep them till he came back from Hongkong. He claimed that he came to know of the case of foreign c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence against him except the statement of Mr. Grover. There was substantial element of doubt to the truthfulness of the confessional statement of the Respondent. The evidence on record produced by the prosecution did not appear to be consistent with the ordinary course of events in respect of the statement of Mr. Grover and confession of the Respondent. Although the defence witnesses of the Respondent did not appear to be reliable, the prosecution had failed to prove its case against the Respondent beyond reasonable doubt. 14. One other factor which weighed with the trial Court was that during the pendency of the proceedings, Mr. Grover expired and the other witnesses could not be found. An application filed by the Customs Department belatedly under Section 311 Cr PC for recalling the witnesses was dismissed by the trial Court. With Mr. Grover not being able to be examined, there was no evidence other than the confessional statement of the Respondent which appeared to be both inconsistent and involuntary. As regards the Respondent carrying a fake passport, he was facing a separate trial for the said offence. The said circumstance may have created suspicion but did not constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me reason, whether justified or unjustified, one of the suspected accused persons is not proceeded against, there is no law by which proceedings against the other party will automatically get dropped in all circumstances. The position would be different, say in a original proceedings, where charge of conspiracy (Section 120-A of the IPC) or of common intention (Section 34 ibid) are invoked. But position would be entirely different if after investigation it is decided to proceed against only one person (Sh. Joginder Pal Jain's alias Sh. Mohan Lal in this case) and not the other (Sh. Manohar Lal Grover) though in that case it shall not be permissible for prosecution (Department) to make use of any statement of Manohar Lal without at least granting an opportunity of cross-examination to Sh. Jain. In case the department decides to proceed against only one individual, it is incumbent to provide full evidence against him along with a reasonable opportunity of challenging the evidence, by way of cross-examination of material witness or in the alternative prove the case without reference to evidence of other persons, specifically of suspected accomplice. Such proceedings may also be based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel 21. Mr. Phoolka submitted that the approach of the learned trial Court in not relying on the confessional statement of the Respondent was flawed as the plea of the Respondent that it was obtained under torture and coercion was an afterthought and was not substantiated. Mr. Phoolka placed reliance on the decision of the Supreme Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (2003) 8 SCC 449. According to Mr. Phoolka, the Respondent had confessed to two material facts; one that he was travelling on a fake passport and the second that the currency recovered from the sea green colour suitcase belonged to him and the suitcase also belonged to him. He had handed over the keys of the suitcase to the Customs Officer. Mr. Phoolka submitted that even the retracted confessional statement under Section 108 of the Customs Act would be admissible in evidence. Reliance was placed on the decision of this Court in Jasjeet Sinha Marwaha v. Union of India 2009 (239) ELT 407. He submitted that as long as the Court was satisfied about the probative value of such confession, it did not require corroboration. Reliance was placed on the decisions in Yakub Abdul R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and that application was dismissed by the trial Court observing as under: "Learned defence counsel argued that these panch witnesses/Shri M.L. Grover are the witnesses of the Complainant and not that of accused but the Complainant has not produced them in the witness box. Hence, now it is duty of this Court to summon these witnesses in the witness box to reach at the just conclusion. It is well-settled proposition of law that Court is not supposed to collect evidence on behalf of the parties. It is correct that Complainant has not produced these Panch witnesses/Shri M.L.Grover in the witness box. In these circumstances, the Complainant will bear all the legal consequences for non-production of the panch witnesses.......' 24. Clearly therefore, even on that date the prosecution was aware of the consequence of not producing the key witness for cross-examination (for reasons unexplained). The Customs Department waited for three years to file its application under Section 311 Cr PC. Not surprisingly the said application was dismissed by the trial Court by its order dated 16th March 2005, on the ground that it was belated. The High Court by its order dated 1st September 2005 dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 2008 passed by the Commissioner of Customs (Appeals), the Customs Department had failed to explain why Mr. Grover was not proceeded against. It adverted to the fact that the Government of India had in its order dated 16th July 1991 clearly observed that Mr. Grover was a co-accused and that "both of them did act in cohort.' It was further observed that it "shall not be permissible for prosecution (Department) to make use of any statement of Manohar Lal without at least granting an opportunity of cross-examination to Sh. Jain.' The order of the Commissioner of Customs (Appeals) also points out to the infirmity in the panchnama since it contained statements which were outside the knowledge of the panch witnesses, making it obvious that they had narrated what they were told and not the facts. The basic material contradictions in the two confessional statements of the Respondent were noted. According to the department, the Respondent told PW-2 that he had given the sea green suitcase to Mr. Grover for getting it checked in the name of Mr. Grover. Another confessional statement had been made to PW-1 in which the Respondent stated that he had himself taken all the baggages, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orroboration from any independent source. This was adverted to by the Commissioner of Customs (Appeals) and that order has not been challenged. 30. In his examination-in-chief, PW-2 produced two boarding passes and baggage tags. Neither of the two seats were allocated to the passengers next to each other. Surprisingly the baggage tags were not consecutive which was even more surprising, if indeed both the bags had been checked in at the same time. There are too many unexplained facts and unanswered questions in the prosecution case which persuade the Court to agree with the reasoning and conclusion arrived at by the trial Court. The prosecution has been unable to prove the case against the Respondent beyond reasonable doubt. 31. As pointed out in Basappa v. State of Karnataka (2014) 5 SCC 154 it would be permissible for this Court in an appeal against an acquittal to reappraise the evidence only if the conclusion of the trial Court is perverse i.e. against the weight of the evidence. On that yardstick, the Court is not persuaded to hold that the impugned judgment of the trial Court suffers from any legal infirmity warranting interference. 32. Consequently, the appeal is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
