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2006 DIGILAW 1565 (DEL)

ANAND GUPTA v. J. S. GROVER

2006-09-05

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THESE three revision petitions are taken up together as they arise out of the same complaint and identical orders on charge have been passed in all. The petitioners are aggrieved by the order on charge dated 28. 01. 2006. The impugned order is not a very lengthy one and, therefore, it would be instructive to set out the same in its entirety. The same reads as under :"order ON CHARGE : 28. 1. 2006 present: Proxy for SPP. All accused on bail with counsel sh. Naveen Malhotra. Heard arguments. I have gone through the pre-charge evidence. It has been vehemently argued by the ld. counsel for the accused that the complainant who is Seizing Officer has not been examined nor the case property has been produced in the court. I have gone through the testimony of PW1 who was the competent officer to make enquiries u/s 108 of Customs Act and has proved the statement of the accused duly recorded by him. I have also gone through the statement of PW2 who has proved the statement of accused NO. 3 recorded U/s 108 of the Customs Act by him. PW3 has proved the complaint filed by him accordance with law. He has also proved the search of the premises in the presence of two witnesses and Sh. S. N. Gupta the father of Vinod Kumar and has proved that during the search of godown of M/s Gupta and Co. the goods of foreign origin i. e. camaras flashes and battery sells valued as Rs. 72,450/-, one bill book and one cheque book of M/s photo Stores, 21 Kucha Chaudhary, Chandni Chowk, Delhi had been recovered. He has proved the Punchnama in accordance with law though the case property has not been produced in the court. At this stage of pre-charge evidence even if the case property has not been produced in the court, yet it will not be fatal since the recovery of articles as per Annexure A to the Panchnama has been duly proved by the various witnesses, I find there is sufficient material to proceed against the accused u/s 135 (1) (b) (ii) of the Customs Act. Be listed for framing of charge for 9. 3. 2006 announced in the open Court (Dr. Kamini Lau)on 28. 1. 2006 ACMM : NEW DELHI. Be listed for framing of charge for 9. 3. 2006 announced in the open Court (Dr. Kamini Lau)on 28. 1. 2006 ACMM : NEW DELHI. "consequent upon the said order on charge, the charges were framed in respect of each of the petitioners under Section 135 (1) (b) of the Customs act, 1962. ( 2 ) THE learned counsel for the petitioners referred to the order on charge and, particularly, the portion where there is a discussion about PW3 (J. S. Grover ). The said J. S. Grover (PW3) was the complainant in his capacity as superintendent Customs (Preventive) Customs House New Delhi. In the impugned order, it is specifically mentioned that PW3 has proved the complaint filed by him in accordance with law. It is also mentioned that he has proved the search of the premises in the presence of two witnesses as well as the search of the godown of M/s Gupta and Company. It is also specifically mentioned that the said PW3 has proved the Panchnama in accordance with law although the case property has not been produced in court. It is on the basis of the testimony of pw1, PW2 and PW3 that the learned ACMM thought it fit to record a finding that there is sufficient material to proceed against the accused under Section 135 (1) (b) (ii) of the Customs Act, 1962. ( 3 ) THE learned counsel for the petitioners pointed out that the error committed by the learned ACMM is in relying upon the testimony of PW3 when the same was not even completed. He submits that the said PW3 was not even put to cross examination and, therefore, no reliance whatsoever can be placed on the testimony of PW3. He referred to the recording of the statement of PW3 on 14. 10. 1999. A certified copy of the statement so recorded is placed at Page 44 of the paper books. At the end of the statement, the following is noted - "at this stage the case property has not produced in the court, so the further examination be called. Case deferred. " It is the positive case of the petitioners that after 14. 10. 1999 the said witness J. S. Grover (PW3) was never examined either in cross examination or in chief and, therefore, his evidence was not completed. Case deferred. " It is the positive case of the petitioners that after 14. 10. 1999 the said witness J. S. Grover (PW3) was never examined either in cross examination or in chief and, therefore, his evidence was not completed. In the context of these facts, the learned counsel for the petitioners referred to the decision of a Division Bench of this Court in the case of Ripen Kumar v Department of Customs : 2001 Criminal Law Journal 1288. He submitted that under similar circumstances the Inspector (Preventive) Customs was called to the witness box in that case. His examination-in-chief was recorded and to some extent he was cross-examined also. However, his cross-examination had been adjourned and despite repeated opportunities was not completed. The question arose as to whether his incomplete testimony would amount to evidence. In this regard, the court examined the scope of the "evidence" in the context of Section 244 of the Code of Criminal Procedure, 1973 and concluded that the words "all statements" included the examination-in-chief as well as cross examination and, subject to permission, re-examination also. It held that it is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. It also concluded that only when the witness had been cross-examined fully can it be said that the evidence of such a witness, in a judicial proceeding, would be relevant for the purposes of proving a particular fact. The Division Bench also held that if the witness had not been permitted to be cross-examined then such a statement cannot be termed as evidence of the witness nor can it be read in evidence. It categorically found that where part cross-examination took place such a statement could not be called evidence in the eye of law. Mr Aggarwal, who appears on behalf of the Customs, supported the impugned order. He submitted that the testimony of PW3 (J. S. Grover) could not be completed inasmuch as he had retired on 30. 4. 2001 and as such he was not under the control of the Department and his whereabouts were also not known. Mr Aggarwal, who appears on behalf of the Customs, supported the impugned order. He submitted that the testimony of PW3 (J. S. Grover) could not be completed inasmuch as he had retired on 30. 4. 2001 and as such he was not under the control of the Department and his whereabouts were also not known. I have considered the arguments advanced by the counsel for the petitioners as well as the counsel for the Department of Customs and I am of the view that the impugned order cannot be sustained in view of the clear statement of law made by the Division bench of this court in the case of Ripen Kumar (supra ). The testimony of PW3 was incomplete. In such circumstances, in view of the Ripen Kumar (supra), it cannot be regarded as evidence. Unfortunately, the learned ACMM has construed it otherwise and has regarded the testimony of pw3 as evidence and has gone to the extent of saying that PW3 proved the complaint and that he proved the search and also the Panchnama. In view of the decision in Ripen Kumar (supra) the testimony of PW3 cannot be regarded as evidence at all and there is no question of his testimony being taken as proof of anything. This is so because neither his examination-in-chief was completed nor was he subjected to any cross-examination. No credibility can be attached to his statement which had been recorded till 14/10/1999 and the same has to be discarded in toto. In this view of the matter, the impugned order is set aside. ( 4 ) THE matter is remanded to the learned ACMM for consideration of the question of framing of charges, if any, based upon the material available on record discarding the testimony of PW3. These revision petitions stand disposed of accordingly.