TMI Blog2014 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. - Decided against the revenue. - CRL. A. No. 577 of 2008 - - - Dated:- 28-8-2014 - S. Muralidhar,JJ. For the Appellant : Mr. H.S. Phoolka, Senior Advocate with Mr. Harsh Jaidka, Mr. Suryadeep Singh and Ms. Shilpa Dewan, Advocates for Mr. Naresh Grover For the Respondent : Mr. S. S. Gandhi, Senior Advocate with Mr. Akshay Anand and Mr. K.R. Dogra, Advocates along with Respondent in person. JUDGMENT 1. The Department of Customs has in this appeal challenged an order dated 29th September 2006 passed by the learned Additional Chief Metropolitan Magistrate ( ACMM ) in Case No. 444/2004 acquitting the Respondent Joginder Pal Jain of the offence under Sections 132 and 135(1)(a) of the Customs Act, 1962 ( Act ). The complaint 2. The Complainant in this case was Mr. K.K. Dhasmana (PW-2) who at the relevant time was working as Air Customs Officer, IGI Airport, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cardboard box was found to contain items which were recorded in Annexure C to the panchnama. 4. The personal search of the Respondent resulted in the recovery of foreign and Indian currency equivalent to ₹ 7,463.90. This was also recorded in the Annexure to the panchnama. Since the Respondent could not produce any evidence or documents showing lawful possession of the recovered currencies, they were seized under Section 110 of the Customs Act on the reasonable belief that they were being attempted to be exported in contravention of the provisions of the Customs Act and the Foreign Exchange Regulation Act, 1973 ( FERA ). The statements of Mr. Grover under Section 108 Customs Act 5. The Respondent was produced before Mr. D.K. Malhotra (PW-1) who was posted as ACS (Preventive) at the IGI Airport. Mr. Grover made a statement before him on 29th January 1988 (Ex.PW-1/B) and thereafter again on 4th February 1988 (Ex.PW-1/A). On 29th January 1988, the Respondent also tendered a statement (Ex.PW-1/C) before PW-1. In his statement made on 29th January 1988, Mr. Grover stated that he arrived at the Old Delhi Railway Station on 28th January 1988 by Punjab Mail from Faridkot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent was travelling in the fake name of Mr. Mohan Lal. The said statement records a question put to him stating that his lawyer had filed an application before the Metropolitan Magistrate ( MM ) that he was being compelled to give a confessional statement before the MM. Mr. Grover by way of reply to the question straightway denied it and stated that he had not moved any such application in any Court or instructed anyone to do so. He stated that any such application was not in his knowledge. The statement of the Respondent under Section 108 Customs Act 7. On his part, by statement dated 29th January 1988, the Respondent stated that his actual name was Joginder Pal Jain but he was holding an Indian passport in the name of Mr. Mohan Lal bearing his photograph and issued at Chandigarh. He stated that he had arrived at the IGI Airport Terminal-II at 11.15 pm on 28th January 1988 and met Mr. Grover who was known to him for the last 15 years and belonged to Moga. Mr. Grover had one hand bag. He stated that Mr. Grover had met him in Moga about 2-3 days earlier and wanted to go to Hongkong for site seeing and that in Delhi they had met at Broadway Hotel. At the airport he state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Lal which was his childhood name. He admitted that he was Joginder Pal Jain but that by mistake his passport was got made in the name of Mohan Lal. He denied that Mr. Grover was questioned in his presence. He denied having confirmed that he had checked in the sea green suitcase in the name of Mohan Lal. He also denied opening the suitcase with any key and whether any packets of sweets were recovered from it. According to him, no sweet packets were opened in his presence and therefore he could not know what they contained. He denied that any currency was recovered from his possession. He also denied having made any voluntary statement before Mr. D.K. Malhotra. He claimed that the said statement was written by him at the dictation of Mr. Malhotra under threats and coercion. He stated that he retracted that statement immediately when he was produced in the Court for the first time on 30th January 1988, i.e. at the first available opportunity. When asked if he wanted to say anything the Respondent stated that all the articles recovered from the suitcase, briefcase and cardboard carton were mixed up by the customs officials; that he was detained for more than 36 hours and was tortured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Mr. Grover visited DW-2 on 2nd February 1998 and disclosed that he had been caught by the customs officers at the airport for carrying Indian currency and dollars. Mr. Grover is supposed to have disclosed that that he knew Mr. Gurdial Singh Malhotra, the latter helping him avoid arrest by the customs officer. In his cross-examination, DW-1 stated that except his own statement, there was nothing to prove that Mr. Grover used to go to Bangkok, Singapore and Hongkong and that he used to buy foreign exchange from various villagers around Moga. He admitted that he knew the Respondent. He denied that the Respondent was his family friend or that he and the Respondent had joint business and property in Delhi or Moga. Judgment of the trial Court 13. The trial Court on analysing the evidence of the witnesses, first concluded that there was no satisfactory explanation as to why Mr. Grover who was also travelling with the Respondent abroad was found in possession of only a small hand bag and was not carrying any change of clothes or shaving kit whereas the Respondent was carrying not only several pairs of clothes but also two shaving kits. In the circumstances, the plea of the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted Mr. H.S. Phoolka, learned Senior counsel to address the Court on behalf of Mr. Naresh Grover to assail the impugned judgment of the learned trial Court. This Court has also heard the submissions of Mr. S.S. Gandhi, learned Senior counsel for the Respondent. Adjudication proceedings 17. A development which took place during the pendency of the present appeal was that by an order dated 15th December 2008, the Commissioner of Customs (Appeals) allowed an appeal filed by the Respondent against the Order-in-Original No. 4 of 2008 dated 30th January 2008 passed by the Additional Commissioner of Customs, IGI Airport, New Delhi levying a penalty of ₹ 75,000 on the respondent under Section 114 of the Customs Act. 18. The said Order dated 30th January 2008 was consequent upon an order of the Government of India (GOI) dated 16th July 1991 directing de-novo proceedings, not in respect of the confiscation of the foreign exchange, but in respect of confiscation of Indian currency worth ₹ 750 and container from which the foreign exchange was recovered and penalty imposed on respondent. In the order dated 15th December 2008 allowing the Respondent in appeal, a reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the name of Sh. Manohar Lal Grover, the baggage tags were stapled to his ticket and in his statement dated 29th January 1988 Sh. Manohar Lal admitted that he had met the Appellant in Hotel Broadway and that the Appellant was known to him. Thus it is clear that Sh. Manohar had given his consent to check in the said suitcase in his name and hence, was a co-accused as has been held by the Government of India in its order mentioned above. But Sh. Manohar Lal was let off and no case was booked against him. The Customs Officers, who booked the case, had no authority under the law to decide the fact that Sh. Manohar Lal was not involved in the case even though he had denied his involvement in his statement. They should have booked the case against both persons and left it for the Adjudicating Authority/Court to decide whether Sh. Manohar Lal was involved or not. By letting him off the hook they thus decided the case in favour of Sh. Manohar Lal and at the same time put the Appellant in a position of disadvantage, which is not permissible under the law. Moreover, when a person himself is co-accused in a case, his statement cannot be accepted as evidence against the other. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out the boarding passes which showed that seats allocated to the Respondent and Mr. Grover were not next to each other. They could not have checked in together. Also the baggage tags were not consecutive. He referred to the cross-examination of PW-2 in this regard. The failure to produce Mr. Grover in cross-examination deprived the Respondent an effective defence and the Respondent being not responsible for that circumstance was rightly granted benefit of doubt by the trial Court. He pointed out that not only the Petitioner but even the Respondent had filed an application under Section 311 Cr PC for recalling of Mr. Grover but that application was rejected. Mr. Gandhi referred to the order dated 1st September 2005 passed by this Court in Criminal Miscellaneous Case No. 1342 of 2005 (Department of Customs v. Joginder Pal Jain) affirming the order dated 16th March 2005 passed by the trial Court dismissing the Petitioner s application under Section 311 Cr PC. Decision of the Court 23. In the first place it must be required to be noticed that Mr. Grover who was perhaps the key prosecution witness, was unavailable for cross-examination. The other panch witnesses to the seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it is not possible to lay down any rigid rules as to when in compliance of principles of natural justice opportunity to cross-examine should be given. Everything depends on the subject matter. In the application of the concept of fair play there has to be flexibility. The application of the principles of natural justice depends on the facts and circumstances of each case. 26. Naturally therefore the entire emphasis on the side of the prosecution which incidentally did not chose to argue the present appeal was on the confessional statement of the Respondent under Section 108 of the Customs Act. In his statement under Section 313 CrPC, the Respondent has mentioned that the said statement was written by him under the dictation of PW-1 and was retracted by him at the first available opportunity when he was produced for the first time in Court on 30th January 1988. This fact was not disputed. Once the confessional statement had been retracted it was necessary to seek corroboration of the facts adverted to therein. The suggestion to this effect was put to PW-1 in his cross-examination which was denied. 27. In Telestar Travels Private Limited v. Special Director of Enforcement ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it to you that you mixed up all the articles recovered from the accused as also from Manohar Lal Grover? Ans. It is wrong to suggest that the articles recovered from Joginder Pal Jain were mixed up. Actually the baggage owned by Sh. Joginder Pal Jain was examined exclusively in presence of Joginder Pal Jain, witnesses and Manohar Lal Grover and as per panchnama goods were seized. Q. Is it correct that the briefcase of Joginder Pal Jain was found to contain a shaving kit as recorded on page 3 of panchnama PW3/A? Ans. Yes it is correct. It is correct that one shaving kit was recorded from the cardboard carton being carried by the accused as recovered in Annexure C of the panchnama Ex.PW3/A. Q. Did you asked him why he was carrying two shaving kits? Ans.: Case was investigated by the then Supdt. Preventive. 29. In fact the witness denied the suggestion that the contents of the baggage were mixed up. The decision of the Supreme Court in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin 1997 (3) SCC 721 no doubt states that not each fact or circumstance contained in the retracted confession needs separate or independent corroboration but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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