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2016 (3) TMI 472 - DELHI HIGH COURT

2016 (3) TMI 472 - DELHI HIGH COURT - 2016 (332) E.L.T. 101 (Del.) - Revision petition - Setting aside of judgment of conviction and order of sentence - Commission of offences under Section 135(1)(a) of the Customs Act, 1962 - import / possession of gold - Held that:- there are several lacunae in the prosecution case. The statement of the petitioners recorded under Section 108 of the Customs Act cannot be said to be voluntary and, therefore, cannot be used against them in evidence. It has also b .....

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the absence of his examination, contents of purity certificate cannot be held to be duly proved. Therefore, the judgment of conviction and order of sentence passed by the learned Trial Court are set aside. - Decided in favour of petitioner - CRL.REV.P. 538/2007 - Dated:- 24-7-2015 - For the Petitioner : Ms. Sangita Bhayana, Advocate , Mr. Arvind Nigam, Sr. Adv. with Mr. Anish Dhingra, Advocate. versus A.K. Gandhi And Ors. For the Respondent : Mr. Satish Aggarwala with Mr. Amish Aggarwala, Advs. .....

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peals filed by both the petitioners were also dismissed vide common judgment dated 14.08.2007, passed by the learned Additional Sessions Judge. 2. Aggrieved by the judgment of conviction dated 09.08.2002 and order on sentence dated 14.08.2002 passed by the learned Additional Chief Metropolitan Magistrate, awarding the sentence to the petitioners to undergo rigorous imprisonment for a period of three years and a fine of ₹ 1,000/- each for offence under Section 135(1)(a) of the Customs Act a .....

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o.KLM 836 had landed and they noticed that the petitioner Ajit Singh handed over a small packet to the petitioner Om Prakash. The petitioner Om Prakash was apprehended along with the packet and then he was taken to the international arrival hall. There he identified the petitioner Ajit Singh who was standing in the queue before the immigration counter. In the presence of the petitioner Ajit Singh and two witnesses, the packet recovered from Om Prakash was examined and it was found to contain one .....

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istrate had taken cognizance of the offences and summoned the petitioners. Charges under Section 135(1)(a) of the Customs Act were framed against both the petitioners. The petitioners pleaded not guilty to the charges framed. 5. To prove its case, prosecution examined 3 witnesses. After conclusion of prosecution evidence, the statements of the petitioners were recorded under Section 313 Cr.P.C. in which they had claimed innocence. The learned Additional Chief Metropolitan Magistrate vide judgmen .....

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eved by the same, the petitioners preferred the present revision petition to set aside the judgments rendered by the Courts below and claiming acquittal. 8. Learned Senior Advocate for the petitioner Om Prakash has argued that there was no basis to convict the petitioner on the charges framed against him. The conviction of the petitioner is based on the disclosure statement of the co-accused/petitioner Ajit Singh which is not admissible in evidence in the light of the ratio laid down in Union of .....

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sed. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-exami .....

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he King-Emperor AIR 1939 PC 47 in which it was observed that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of the gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. He further placed reliance on Noor Aga v. State of Punjab & Anr. JT 2008 (7) SC 409 in which the Hon ble Supreme Court observed as under : Clause (3) of Article 20 of the Constitution provid .....

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question as to whether the decisions of this Court that a Custom Officer is not a Police Officer should be revisited in view of the decision of this Court in Balkrishna Chhaganlal Soni v. State of West Bengal [1974 (3) SCC 567]. 10. After hearing submissions of learned counsel for the parties, this Court examined the Trial Court record as well as the judgment passed by the learned Additional Sessions Judge. 11. It is alleged against the petitioner Ajit Singh that he was seen handing over one pa .....

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confessional statements made by the petitioners, convicted them which has been upheld by the learned appellate Court also. 12. As per the law laid down in above mentioned cases, a confessional statement made by a co-accused cannot be used against another accused and also that if the statement made by an accused under Section 108 of the Customs Act has been retracted later on, then it must be corroborated by other evidences and materials on record. In the present case, confessional statement mad .....

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abrasion on lower inner aspect of left arm, pain in spine, forearm, healed abrasion over left forearm. The doctor opined that the above injuries were of 10-12 days duration. This MLC Ex.PW1/DA creates doubt about the case of the prosecution that the petitioner Ajit Singh made voluntary statement under Section 108 of the Customs Act and for this reason it cannot be used against him as observed in Pakala Narayana Swami (supra) and Noor Aga (supra) and also it cannot be used against co-accused/pet .....

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issued by him. It is further argued that mere marking of exhibit on the purity certificate cannot be said to be a due proof of its contents. 14. Perusal of record shows that two panch witnesses, namely, Sh. Abhlesh Kumar and Sh. Vijay were made part of the proceedings conducted in the present case regarding recovery and seizure of alleged gold from the petitioner Om Prakash. Though, both these panch witnesses were cited as prosecution witnesses in the list of witnesses, but the prosecution had .....

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dependent corroboration to the testimony of Sh. A.K. Gandhi as the independent public witnesses have not been examined in the present case. Thus, the prosecution story does not seem to be completely reliable and truthful. 15. In similar circumstances, the Hon ble High Court of Delhi in DRI v. Satyanarayan Agarwal 2012 (2) JCC 1043 observed as under : It is further recorded, in fact PW2 Shri L.D. Rajput, who allegedly seized the recovery (gold biscuits and Indian currency) from the accused in the .....

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he non-examination of the abovesaid independent public punch witnesses by the prosecution was a very material lacuna in this case, therefore, benefit of doubt goes in favour of the accused. 16. It is also matter of record that the purity certificate has been proved on record by Sh. A.K. Gandhi (PW1) as Ex.PW1/D. The perusal of panchnama Ex.PW1/C prepared at the spot shows that the name of goldsmith is not mentioned therein. In the certificate, it is only mentioned that a certified goldsmith was .....

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strength from the ratio of judgment in case of Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam @ Satteyya & Ors. MANU/SC/0022/1971 in which it was observed that the mere marking of an exhibit does not dispense with the proof of documents. Similarly in Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. AIR 2004 SC 175, it was observed as under : ...The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be due proof .....

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ontents of this letter were proved by the evidence of Ram Chandra Sharma who stated that he knew the handwriting of Swamiji with whom he had correspondence even earlier. His evidence, thus, was sufficient to prove that Swamiji wrote this letter to Ram Chandra Sharma, and that the statement contained in the letter were made by Swamiji himself. It is true that, in the absence of examination of Swamiji, the correctness of those statements cannot be held to be proved. Thus, the evidence of Ram Chand .....

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proved by a Division Bench of Bombay High Court in Mohammed Yusuf and Anr. v. D. and Anr. MANU/MH/0106/1968 while observing that the evidence of the contents of a document was hearsay evidence unless the writer thereof was examined before the Court. 17. Another discrepancy in the case of the prosecution is that the gold allegedly recovered from the petitioner Om Prakash was never produced in the Court for identification by the prosecution witnesses PW1 Sh. A.K. Gandhi and PW2 Sh. R.L. Lamba. It .....

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f it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. 135. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evide .....

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