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2014 DIGILAW 1990 (DEL)

J. P. Singh (AIR Custom Officer) v. Dharampal

2014-07-25

S.MURALIDHAR

body2014
JUDGMENT : 1. The Petitioner seeks leave to appeal against the order dated 28th July 2009 passed by the learned Additional Sessions Judge (‘ASJ’) in Criminal Appeal No. 1 of 2009, allowing the appeal filed by the Respondent against the judgment dated 19th March 2005 passed by the learned Additional Chief Metropolitan Magistrate (‘ACMM’) convicting him under Sections 132 and 135(i)(a) of the Customs Act, 1962 (‘Act’) and the order dated 24th March 2005 whereby he was sentenced to a period already undergone by him till then and the fine of Rs. 5,000 and in default, to undergo simple imprisonment (‘SI’) of one month for the offence under Section 132 of the Act and a fine of Rs. 10,000 and in default to undergo SI for two months for the offence under Section 135(i)(a) of the Act. 2. The Respondent was himself an air customs officer employed as such from 19th January 1979 onwards. It is stated that, on the intervening night of 10-11th September 1988, while checking passengers bound to Bangkok by Thai Airways Flight No. TG-915, the Respondent was noticed near the Customs Clearance Counter at the Indira Gandhi International Airport at New Delhi. He is stated to have told the officers that he had come to receive someone at the arrival hall and had incidentally come to the departure hall to meet his old colleagues. It is stated that the officers were surprised to find a boarding card in his hand and then to find him subsequently reporting for a security check at gate No. 10 as a passenger. When it was realised that his name had not been struck off the passengers’ manifest with the Customs authorities, it was concluded that he had not reported for customs clearance. When asked, he replied in the affirmative that he was travelling as a passenger to Bangkok. His boarding card was stamped with the Customs stamp. When he was asked if he was carrying foreign/Indian currency, he replied that he had 500 US Dollars and US 20 Dollars purchased from the bank at the airport. He was brought to the Departure hall and a personal search was undertaken in the presence of two witnesses. They recovered foreign and Indian currencies equivalent to Rs. 96,664.45. Since he failed to produce any document for lawful export of the said currencies, they were seized under Section 110 of the Act. He was brought to the Departure hall and a personal search was undertaken in the presence of two witnesses. They recovered foreign and Indian currencies equivalent to Rs. 96,664.45. Since he failed to produce any document for lawful export of the said currencies, they were seized under Section 110 of the Act. Charges were ultimately framed against the Respondent more than seven years later, on 27th October 1995 under Sections 132 and 135(i)(a) of the Act. 3. This is the second round of litigation. In the first round, by a judgment dated 22nd April 2002, the learned ACMM found the Respondent guilty of the offences under Sections 132 and 135(i)(a) of the Act and sentenced him to six months’ rigorous imprisonment (‘RI’) with a fine of Rs. 5,000, and in default, to undergo SI for’ months for the offence under Section 132 of the Act and three years’ RI coupled with a fine of Rs. 5,000 and in default, to undergo 1½ months’ SI under Section 135(i)(a) of the Act. The Respondent appealed against the above judgment. The Sessions Court, by orders dated 21st September 2002, set aside the order of the learned ACMM and remanded the case to the learned ACMM to given an opportunity to the Respondent to adduce additional evidence. 4. In the second round of litigation, on remand, the Respondent examined one Mr. J.M. Sharma, a retired Assistant Commissioner, Customs as DW-1. The Respondent examined himself as DW-2. 5. By the judgment dated 19th March 2005 the learned ACMM convicted the Appellant for the offences with which he was charged and sentenced him in the manner indicated hereinbefore. 6. Admittedly, there were no independent witnesses in the case. They were all Customs Officers. The key witness was the Complainant, J.P. Singh, another Air Customs Officer, who was examined as PW-1. It is seen from the evidence of DW-1 that prior to the incident in question which took place on the intervening night of 10-11th September 1988, the Respondent had given written complaints dated 1st June 1988 (Ex. DW2/A), 1st August 1988 (Ex. DW2/D) and 6th August 1988 (Ex. DW2/B) to the Customs Authorities. The subject-matter of these complaints was about the Respondent being compelled by his seniors, which included J.P. Singh to perform illegal acts. DW2/A), 1st August 1988 (Ex. DW2/D) and 6th August 1988 (Ex. DW2/B) to the Customs Authorities. The subject-matter of these complaints was about the Respondent being compelled by his seniors, which included J.P. Singh to perform illegal acts. In the first of the complaints dated 1st June 1988, it is stated that the Customs officials gave him two packets containing a video cassette player and a radio cassette recorder to be handed over to a person in Kolkata. The Respondent by the said letter and brought this fact to the notice of the Superintendent (Preventive) of Air Customs. The subject-matter of the complaint dated 1st August 1988 was about the threats given to him by J.P. Singh and other officers. The complaint dated 6th August 1988 specifically stated that J.P. Singh coerced the Respondent into cooperating with him in his illegal activities and threatening him if he failed to do so. 7. When he was examined, DW1 was unable to deny that the said letters had been received in the Department. It is noticed in the impugned order of the ASJ that at one stage the Revisional Authority, i.e., the Joint Secretary of the Government of India had, in his order dated 17th July 1992, referred to the said complaints and taken a serious view as to why no action was taken by the Customs Department on the said complaints. 8. The judgment dated 19th March 2005 of the learned ACMM dated 19th March 2005 convicting the Respondent does not dwell much on this aspect, except stating that “it is difficult to accept that because of an enmity with one or two officers the entire Customs Department will turn hostile to him.” However, as pointed out by the learned ASJ in the impugned order, this was not an aspect that could have been brushed aside since one of the defences of the Respondent was that he was falsely implicated by the Complainant. The second aspect, which has been adverted to by the learned ASJ, is that by the letter dated 4th July 1988, the Respondent had given sufficient advance intimation of his travelling to Bangkok in September 1988 to attend the marriage of his personal friend. This is another factor which has not been addressed in the judgment of the learned ACMM. 9. This is another factor which has not been addressed in the judgment of the learned ACMM. 9. Having heard learned Counsel for the Petitioner and having examined the trial Court record, the Court is not satisfied that there exist sufficient grounds for grant of leave to appeal against the impugned judgment dated 28th July 2009 of the learned ASJ. The petition is accordingly dismissed. 10. The trial Court record be sent back forthwith. Petition dismissed.