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2012 DIGILAW 455 (DEL)

DRI v. Satyanarayan Agarwal

2012-02-07

SURESH KAIT

body2012
JUDGMENT SURESH KAIT, J 1. Vide the instant petition, the petitioner has assailed the judgment dated 30.06.2011 passed by the ld. Addl. Chief Metropolitan Magistrate-01, Patiala House Courts, New Delhi on various grounds, however ld. Counsel for the petitioner has argued that, as regards sanction for prosecution, the court ignored the fact that sanction for prosecution had been filed with the complaint and that is why cognizance of offences was taken. Sanction of prosecutuion was proved and exhibited as Ex.PW1/B and that is why the charge had been framed. 2. Mr. Satish Aggarwala, ld. Counsel for the DRI, has further asserted that the seizing officer PW1 Shri B.K. Bhattacharya did not appear for cross examination after charge. However, it is immaterial, keeping in view the object behind obtaining of sanction for prosecution ; and in the event of any prosecution within having been incapacitated or his sudden demise, his per-charge and pre-charge cross-examination evidence will be valid. 3. Ld. Counsel has argued the second ground that as regards proof of sanction for prosecution, even if it is assumed that after charge cross-examination of Shri B.K. Bhattacharya was required for sanction of prosecution, the respondent could not have been acquitted. At the most, the court could have dropped the proceedings against him. 4. I here make it clear that ld. Counsel for petitioner has not argued on other grounds, therefore, I will deal with the grounds argued above. 5. Ld. Counsel has relied upon the judgments of the Supreme Court in State of Tamil Nadu vs. M.M. Rajendran, (1998) 9 SCC 268 ; and State of Haryana v. N.C. Tandon, 1977 SCC (Crl.) 462. 6. I note, the trial judge has recorded in its impugned judgment that PW1 Shri B.K. Bhattacharya, who was the complainant, did not appear in the court to face full cross-examination by the accused and was only partly cross-examined, therefore, the part testimony of PW1 could not be read at all either in favour of the prosecution or against the accused. 7. 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 presence of two independent witnesses vide punchnama dated 01.11.1990, which has been proved as Exh. 7. 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 presence of two independent witnesses vide punchnama dated 01.11.1990, which has been proved as Exh. PW2/A, shows that the said punchnama dated 01.11.1990 was prepared in the presence of two independent punch witnesses, i.e., Shri Rajesh son of Shri Balbir Chand and Shri Pradeep son of Shri Dunni Chand. However, as per record, the prosecution had failed to examine the above mentioned independent public witnesses without any sufficient reasons although they were cited as witnesses in the list. The 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. 8. Further, it is recorded that PW2 deposed in his cross-examination before charge that he was not aware if the statements of punch witnesses were recorded by the adjudicating authority in which they had denied that no gold was recovered from the accused. 9. In cross-examination after charge, PW3 Superintendent, Central Excise Shri D.A. Nistane also deposed that no statement of punch witnesses was recorded by him nor he recorded the statement of the seizing officers. The abovesaid independent public punch witnesses as mentioned in Exh. PW2/A would have been the most material witnesses for the prosecution, however, as mentioned, the prosecution failed to examine them as witnesses in this case. Therefore, it was a very material lacuna in the case of the prosecution which cast a very strong doubt over the seizure memo/punchnama dated 01.11.1990 and was absolutely fatal to its case. 10. Thus, the ld. Trial judge has opined that benefit of doubt goes in favour of the accused who is entitled to acquittal in the present case. 11. I note, the ld. Trial judge has also dealt the cases referred to by the ld. Spl. Public Prosecutor before him. I have no hesitation to say that the same judgments also cited before this Court, viz. Stateof Tamil Nadu(supra) and State of Haryana (supra), have no relevance in the facts and circumstances of the case. 12. The judgments referred to by the ld. Counsel for the petitioner would have been relevant if the ld. Spl. Public Prosecutor before him. I have no hesitation to say that the same judgments also cited before this Court, viz. Stateof Tamil Nadu(supra) and State of Haryana (supra), have no relevance in the facts and circumstances of the case. 12. The judgments referred to by the ld. Counsel for the petitioner would have been relevant if the ld. Trial judge had discharged the accused at the initial stage on the prosecution sanction or acquitted the accused only on the ground of the sanction is not proved. 13. I find that the ld. Trial judge while recording his opinion, has recorded that in view of the above said discussion, the prosecution has failed to prove beyond reasonable doubt, on the charge against the accused, and therefore, the petitioner/accused was acquitted from the charges under Section 135(1)(b) of the Customs Act, 1962. Therefore, I am of the considered opinion that ld. Trial judge has acquitted the accused not only on the ground argued but also considered the other evidence also. 14. I find no discrepancy in the impugned judgment, therefore, I am not inclined to interfere with the same. 15. Accordingly, the Crl. LP No.403/2011 is dismissed. 16. No order as to costs.