Full Judgment Text
SHAKUN ANAND
04.02.2019 11:30
$~18
IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Decided on: 24 January, 2019
+ CRL.M.C. 2408/2016
CUSTOMS PREVENTIVE NEW CUSTOMS HOUSE THR.
NARESH KUMAR, INSPECTOR ..... Petitioner
Through: Mr. Satish Aggarwala, Senior
Standing Counsel with
Mr. Vineet Sharma, Advocate.
versus
AJAY KUMAR BANSAL ..... Respondent
Through: Mr. Sonam Nagrath, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. On the criminal complaint (CC No.282/1/1993) of the
petitioner, the respondent stood summoned as accused by order dated
06.07.1993 of Additional Chief Metropolitan Magistrate (ACMM), the
accusations levelled constituting the offence under Section 135 of the
Customs Act, 1962. It may be mentioned that besides the respondent,
one another (Jitender Nath) had also been summoned by the said
order, the said other accused having since died and the proceedings
against him having abated.
2. The complaint dated 30.06.1992 was presented by Mr. Satish
Aggarwala, Senior Special Public Prosecutor engaged by the
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petitioner, he having continued to be the counsel till date and
representing the petitioner in these proceedings as well. The
complaint was accompanied by sanction and authorization for
prosecution granted by Collector of Customs on 26.11.1992 in
exercise of the power vested in him by Section 137(1) of the Customs
Act, 1962.
3. In view of the fact that the complaint was filed by a public
servant in official capacity, no preliminary inquiry was held,
cognizance being taken on the complaint, the documents and the
material filed therewith, it being inclusive of the above mentioned
sanction, satisfaction about its sufficiency having been recorded by the
ACMM in the order dated 06.07.1993, and procedure of trial of
warrant cases instituted otherwise than on a police report ( i.e., the
complaint cases) was applied. After securing the presence of the
accused, the ACMM took the matter to the stage of recording of pre-
charge evidence.
4. The case was listed before the ACMM for such purposes on
09.11.1994 when the following order was recorded:-
“Present: Sh. Satish Aggrwal P.P. for the Customs.
Accused No.2 on bail with counsel Sh. Akshay
Anand.
Accused No.1 is not present. The presence of accused
No.1 is exempted for today on an application made on his
behalf by Sh. Akshay Anand Adv. However, Sh. Akshay
Anand Adv. has got no objection if the evidence of the
witness present is recorded. As such statement of PW 1
Sh. S.K.Verma partly recorded. His further statement is to
be recorded at Nangloi where the case property is lying
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and the permission from the Hon’ble High Court has been
received to hold the court there. To come up for evidence
at Nangloi on 8.12.94.
ACMM/9.11.94”
5. It may be mentioned here that S.K. Verma (PW-1), referred to
in the aforementioned proceedings, was Inspector Customs
(Preventive) by whom the complaint had been filed on behalf of the
petitioner. The deposition recorded on 09.11.1994 was his part
examination-in-chief, which would read thus:-
“PW1. Sh. S.K.Verma ACO, IGI Airport, New Delhi.
On S.A.
In September, 1992 I was posted as Inspector Customs at
Customs Collectorate, Delhi. On 26.9.92 acting on
specific information I alongwith the officers of Customs
preventive searched the godown located at Nilothi Mode
near G.R. Public School Sri Ram Park, Nangloi in the
presence of two independent witnesses and Sh.Vikaram
Singh Watchman. Sh. Vikaram Singh opened the godown
with the keys available with him and as a result of search
ball bearing of foreign origin valued at Rs.14,57,500/-
(MV) were recovered and during the course of the search
the documents, packing list having No.1094 of M/s Ameeco
Marketing, Dubai, U.A.E. pasted on one of the wooden
crates containing details regarding quantity etc and sticker
of Ameeco Marketing telephone numbers, destination,
C.C.U./KT etc and one debit voucher of M/s. Great India
Chemicals, 251 Kamla Market were also seized. On
demand Sh. Vikaramjit could not produce any evidence for
the lawful import/acquisition/possession for the purchase
and storage of the recovered ball bearing and as such the
same were seized vide panchnama Ex.PW1/C which is in
my own hand and is signed by me, two panch witnesses at
points A to D and thumb marked by S. Vikaram Singh
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Watchman at point D on all the pages. Certain documents
were also seized which are Ex.PW1/D1 to D3. (To be
continued)
RO & AC ACMM/9.11.94.”
6. As can be noted from the above, only four documents were
formally referred in the chief-examination by PW-1 they being
Ex.PW-1/C, ( punchnama ) and Ex.PW1/D1 to D3 (collectively
referred to as certain documents which had been seized). The
deposition sheet is conspicuously silent about any document having
been proved or referred or labeled as Ex.PW-1/A or Ex.PW-1/B. Yet,
on the sanction and authorization for prosecution dated 26.11.1992
(pages 151-163 of the trial court record) an endorsement appears to
have been made in coloured pen, it reading – “Ex.PW-1/B”, meant to
be authenticated by the ACMM on 09.11.1994, it bearing signatures of
no one. It may be added that the first sheet of the complaint bears
similar endorsement “Ex.PW-1/A”, it also expected to be
authenticated by the ACMM on 09.11.1994, but it also bearing
signatures of no one.
7. The witness (PW-1) was further examined on 30.11.2000 and
05.09.2002 and, thereafter, tendered for cross-examination, no effort
having been made by the prosecutor to make up for the omissions with
regard to proof as to sanction.
8. The petitioner, as the complainant, took its own time in
prosecuting the complaint, it having lingered on over the years, the
prosecution evidence eventually being closed by the ACMM on
23.01.2006. On Crl.M.C.770/2006 this court by order dated
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22.01.2008, permitted additional witness to be adduced and for cross-
examination of the witness to be facilitated. Taking note of this, the
proceedings were revived by ACMM, for pre-charge evidence, by his
order dated 04.02.2008. The matter was again closed for pre-charge
evidence, by order dated 18.02.2008, and taken to the stage of
consideration of the question of charge.
9. On 27.04.2010, the ACMM held that the complainant had failed
to bring on record any evidence, which if left unrebutted, could
warrant conviction of the respondent, and thus, directed he to be
discharged.
10. The petitioner challenged the said order dated 27.04.2010
before this court by criminal revision petition No.344/2010. A learned
Single Judge of this court observing that next hierarchical court being
the court of sessions, the revision petition was made over to the
District & Sessions Judge (New Delhi). The revision petition of the
petitioner came to be allocated to an Additional Sessions Judge (ASJ)
in which court it was listed as criminal revision petition No.159/2014.
It was eventually decided by order dated 29.10.2015. The ASJ noted
some of the above-mentioned proceedings and the fact that no formal
proof had been adduced about the sanction for prosecution dated
26.11.1992. He was of the view that the ACMM could have dropped
the proceedings but could not have discharged the respondent. On the
basis of these conclusions, the impugned order dated 27.04.2010 of
ACMM was set aside. It was added by ASJ that if the petitioner
wanted to proceed against the respondent, it would have to “obtain
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fresh sanction” or “get authenticated the sanction from the competent
authority” and thereafter argue afresh on the question of charge.
11. By virtue of the said order of the revisional court dated
29.10.2015, the proceedings before the trial court again stood revived
where the parties were directed to appear on 23.11.2015. The parties
did appear before the Chief Metropolitan Magistrate (CMM) in terms
of the above directions. But the petitioner (the complainant), at the
same time, also preferred the petition at hand invoking the inherent
power and jurisdiction of this court under Section 482 Cr.P.C.
primarily submitting that direction for fresh sanction to be obtained
was uncalled for.
12. The petition has been pending now for over two years and a half
in this court, the proceedings before the CMM where the criminal
complaint is pending having again come to a halt. Even the respondent
has added to the delay to an extent for which reason costs of
Rs.10,000/- were imposed by order dated 14.01.2019. But, it is
submitted by the counsel for the respondent today that she could not
appear on the last date since she was unwell. Keeping in view this
explanation, costs imposed against the respondent on 14.01.2019 are
waived.
13. The complaint was presented by the petitioner through its
representative officer. For prosecuting the complaint, the petitioner
has engaged a Special Public Prosecutor who has been in-charge of
the case since beginning, i.e. , 30.06.1993, now for over 25 years. The
manner in which the proceedings have been held and the manner in
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which the petitioner has conducted the prosecution gives the
impression it is more of persecution than prosecution. The prosecution
of a criminal case is a serious business. A total casual and callous
approach instead seems to have been adopted by the petitioner, and its
representatives, and indeed the counsel representing the department.
The part deposition of PW-1, as was recorded on 09.11.1994, itself is
a good illustration to record the above observations. It is a sad
commentary on the control of the proceedings by the ACMM, such
that no care was taken to ensure that the documents were properly
exhibited. PW-1 was never called upon by the prosecutor to prove the
sanction, his attention not being drawn to it. The sanctioning authority
(or anyone else in its lieu) was never called upon to appear and prove
the sanction.
14. It is the duty of the prosecutor to ensure that all such evidence is
properly and formally adduced. It is not a private prosecution but
prosecution in the name of an entity of the State. The prosecutor had a
duty of trust to discharge. He could not assume that the witness would
himself offer all the necessary facts. After all, the witness was a
public servant holding the rank of an inspector. He required assistance
and, for his chief-examination, proper questions had to be put to him
by the prosecutor. The failure to bring formal evidence in respect of
sanction for prosecution, in these circumstances, is wholly and
squarely that of the public prosecutor in-charge. He should have fully
awakened to the neglect or omission on his part at least at the time of
arguments on charge. The omission to adduce proof of sanction was
an issue being raised by the respondent anterior to the order dated
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27.01.2010 of the ACMM. The least that the prosecutor could have
done at that stage was to move appropriate application under Section
311 Cr.P.C. and either examine PW-1 further or to summon any other
witness so that the proof of sanction had been tendered. No such steps
were taken. Instead, the prosecutor continued to harp on the plea that
he had discharged his burden, as if standing on some ego.
15. The fact remains, as is now conceded by the counsel appearing
for the petitioner, that no formal proof of sanction document in which
regard was already there on record with the complaint has been
adduced through any witness. He also concedes that without formal
proof such document cannot be looked into. His prayer now is for one
more opportunity to be given for such purposes, he invoking the
inherent power of this court under Section 482 Cr.P.C. and the general
power of the court to summon any other witness under Section 311
Cr.P.C. for just decision of the case.
16. The direction of the revisional court for fresh sanction to be
obtained was wholly uncalled for inasmuch as the sanction granted
prior to the launching of the complaint is already there and it is that
sanction which is relevant. The criminal prosecution of such nature
cannot be allowed to be reduced to a mockery, not the least, at the
whims of individuals. After all, public interest involved in such
prosecution also has to be taken care of.
17. In these circumstances, the petition is allowed with costs of
Rs.50,000/- to be deposited by the petitioner with Delhi High Court
Legal Services Committee within two weeks hereof. In turn, the
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petitioner would have the liberty to recover the said costs from the
person responsible for the above mentioned lapse.
18. Subject to proof of deposit of costs by the petitioner being
shown to the satisfaction of the CMM, the liberty to examine
additional witness to prove the sanction for prosecution is granted.
This liberty, however, shall be availed by the petitioner of its own
responsibility on one date of hearing, to be fixed by the CMM for such
purposes. After such additional evidence has been taken on board, the
CMM shall proceed to consider the case for deciding the question of
charge.
19. It is noted that the criminal case is listed before the CMM, New
nd
Delhi on 22 April, 2019. The parties are directed to appear before
the said court accordingly.
20. The petition stands disposed of in above terms.
R.K.GAUBA, J.
JANUARY 24, 2019
vk
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