Allowed

Pramod Kumar and Anr. v. The Union Of India customs Department

Patna HC13 Jan 2014CR. REV./1046/2013

Case brief

AI extract

What is this about?

The High Court of Patna allowed a criminal revision petition, setting aside convictions for smuggling under the Customs Act. The court found the prosecution failed to prove the complainant was a 'proper officer', did not produce seized goods, and violated Section 110(1-B) regarding inventory, rendering the evidence insufficient for conviction.

What did the court decide?

The judgments of conviction and sentence are set aside. The petitioners are directed to be released forthwith if not wanted in any other case.

Pramod Kumar and Anr. Vs The Union Of India customs Department — Cheque Dishonour | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1046 of 2013

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====================================================== 1. Pramod Kumar Son Of Late Ram Swaroop Mahto Resident Of Village - Amodei, P.S.- Ramgarhwa, District- East Champaran At Motihari 2. Uma Shankar Singh @ Uma Shankar Sharma Son Of Shri Sugriv Sharma Resident Of Village - Baharpur P.S. - Harsidhi, P.O.- Gay Ghat, Via - Turkwalia, District- East Champaran .... .... Petitioner/s Versus 1. The Union Of India (Customs Department) .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s. Dhirendra Kumar, Ambrish Kr. Jha, Advocates. For the Respondent/s : Mr. Shamsi, Addl. Solicitor General ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 4 13-01-2014 Petitioners, Pramod Kumar and Uma Shankar Singh @ Uma Shankar Sharma, who have been concurrently held guilty for an offence punishable under Section 135 (1) (b) of the Customs Act by the learned Presiding Judge, Special Court, Economic Offence, Muzaffarpur vide judgment dated 23.09.2008 passed in connection with Custom Case No. 03/1997 and sentencing each of them to undergo R.I. for three years as well as slapped with fine of Rs. 5000/- in default thereof to undergo R.I. for a month as well as judgment dated 30.08.2013 passed by Adhoc Additional Sessions Judge-5^th , Muzaffarpur in Cr. Appeal Nos. 96 of 2008 as well as 98 of 2008 affirming the judgment of conviction and sentences recorded by the learned trial court as

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stated above, filed instant revision petition.

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2. During course of assailing the successive judgments, it has been submitted on behalf of petitioners that the learned successive courts below have not taken into account the factual as well as legal aspect involved in this case in its right perspective and on account thereof mistaken in recording conviction and sentence. It has also been submitted that the learned successive courts committed gross error right from inception of the case. The alleged search and seizure as per prosecution version was made by officials of Sugauli P.S. who in pursuance thereof, had prepared seizure list as well as from his evidence, it is apparent that written report was also sketched but during course of conduction of trial neither the prosecution had exhibited written report nor had put any explanation for its non production. In similar way, it has also been submitted that it is the Sugauli P.S. who had informed the custom officials on the basis of which the custom official came and took charge of the so alleged contraband goods as well as both the petitioners. Then in that event, the seizure list so prepared by the custom official should have divulged the place of seizure at Sugauli P.S. campus and in likewise manner, it should have been production-cum-seizure list on account of having the alleged contraband goods produced by

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the Sugauli P.S. Contrary to it, it is evident that neither the custom official prepared the production-cum-seizure list nor showing it at Sugauli P.S. campus rather the seizure has been shown from the possession of these two petitioners. Although, the so alleged seizure memo lacks presence of these two petitioners and virtually, on this score alone, cast doubt over its authenticity as well as genuineness.

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3. It has further been submitted that interrogation of these two petitioners in terms of Section 108 of the Customs Act (For all future references „the Act‟) is nothing but mere an eyewash because of the fact that the Superintendent of Custom who himself was involved during course of interrogation had shown his ignorance with regard to script of the interrogation. That means to say, neither it happens to be the statement of these two petitioners nor it happens to be prepared on the basis thereof rather the so called document an exhibit of the record, appears to be mere a paperwork furnished at the wisdom of custom official after obtaining signature of these petitioners on blank paper under threat and duress and on account thereof it, cannot be said to be the statement of the petitioners in terms of Section 108 of the Customs Act and having been deficient on that very score, can‟t form basis of the conviction.

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4. Now coming to the other aspect, it has been submitted that there is clear violation of requirement of Section 110 (1-B) of the Act because of the fact that while preparing inventory, apart from inefficient approach of custom official, no sample was preserved by them and in likewise manner the custom official failed to produce the aforesaid seized contraband articles during course of trial. On account of aforesaid deficiency, one cannot be held that he was in possession of article of 3^rd country origin. It has further been submitted that all the mechanism was to be exercised by a proper officer whose identification has been scribed under Section-2 (34) of the Act but the prosecution again failed to bring Notification No. 19/90 by which the complainant by his post happens to be acknowledged in terms thereof.

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5. It has also been submitted that in accordance with Section 123 of the Act, the burden of proof with regard to items so declared thereunder, lies upon the accused while in other cases the burden has to be discharged by the prosecution to suggest that the so alleged recovery of gas lighter and torch comes within the purview of aforesaid Notification and on account thereof, burden of proof shifts upon the petitioners over to prosecution. It has also been submitted that cognizance of offence is barred unless and until there is sanction at the end of Commissioner of Custom.

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From the record, it is evident that the sanction is not accorded by the Commissioner of Custom.

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6. It has also been submitted that whoever has been examined on behalf of prosecution, none is an eyewitness to the occurrence nor the seizure list has been made from the possession of the petitioners in their presence. That means to say, the evidence of custom officials, in the aforesaid background, are worthless and it make further worsen on account of inadmissibility of so called inculpatory extra-judicial confessional statement of these two petitioners, though admissible in law but from the conduct of the prosecution itself, has become a suspicious document.

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7. Then It has been submitted on behalf of the petitioners that two seizure list witnesses having their appearance in the original seizure list prepared by the Sugauli P.S. have not been either interrogated in terms of Section-108 of the Act nor they were produced during course of conduction of trial as a witness and the seizure in its true sense has been, as is evident from the effort made by the prosecution by examining the police officials whose evidence for want of non exhibit of his self statement also became doubtful and in the aforesaid background, the seizure as alleged could not be accepted, admitted and relied

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upon. Therefore, it has been submitted that in its cumulative effect the prosecution case must be seen with a suspicious eye, as a result of which, petitioners are entitled for acquittal after having the successive findings scrapped.

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8. Refuting the argument raised on behalf of petitioners, it has been submitted on behalf of Union of India that from the evidence available on the record, one could safely draw an inference with regard to seizure of contraband goods from the Mini bus belonging to that of 3^rd country origin and that is the reason behind that Sugauli P.S. had handed over the articles, accused along with other relevant documents to the custom officials the competent authority to deal with the event. It has further been evident that during interrogation these two petitioners have shown their complicity being carrier of the goods and were intercepted while carrying the same on Tata Maxi. Release of Tata Maxi in favour of petitioners is another circumstance which proved the search and seizure. Therefore, these three documents on its face, as has not been questioned by these petitioners during course of trial, are sufficient to justify their conviction and sentence apart from having been corroborated by the witnesses who belongs to Custom Department and were engaged during course of enquiry in accordance with law. So submitted that the

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judgment of conviction and sentence recorded by the learned successive courts below are to be affirmed.

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9. PW-1, B.K. Srivastava filed a complaint petition (Ext-2) on 27.07.1997 disclosing therein that on 03.05.1997 the Officer Incharge of Sugauli P.S. seized Tata Mini Bus bearing Registration No. BR-05P-0291 laden with disposable gas lighter (13,000/ pieces valued @ Rs.14,000) as well as two cell torch tiger head brand (40 pieces valued @ Rs.40,800/-) at Chhapwa Raxaul Main Road for which seizure list was prepared in presence of two seizure list witnesses, namely, Ramsray Ram as well as Ramji Paswan (Ext-7) as well as (Ext-8) which was later on handed over to the Custom Officials and on account thereof, after holding an enquiry Custom Case No. (Complaint) 31/1997 was filed annexed with sanction order granted by P.N. Sarangi, Commissioner of Custom. During course of trial altogether nine PWs were examined along with exhibits of series of documents whereupon ultimately, the successive courts below recorded its finding of conviction and sentence.

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10. From Ext-7, Column-1 it is apparent that it does not contain the P.S case number rather it contains, written report furnished by S.I. Md. Perwez Ali of Sugauli P.S. Neither any custom official had disclosed that they had received written report

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in the pen of Md. Perwez Ali nor the prosecution had exhibited any document being in the pen of Md. Perwez Ali on this very score. Md. Perwez Ali has been examined as PW-9. He had stated that on getting suspicious he had intercepted the Tata Maxi and further, on query the occupants of the vehicle have admitted that they were carrying goods of the 3^rd country origin and on account thereof, in presence of two seizure list witnesses the vehicle was searched and from the vehicle torch, battery, lighter etc were seized for which seizure list was prepared. Thereafter, he carried the vehicle along with goods as well as the accused to P.S. where he had submitted written report to the O/C Sugauli P.S. who handed it over to Custom Department. In para-6 of his crossexamination he had stated that he after coming to the P.S. along with seized articles had handed over the same to O/C along with written report over which custom officials were informed. In para7, he had stated that O/C had handed over the accused as well as seized article to the custom official but he is unaware whether any receipt was granted by the custom official or not. He had further stated in paragraph-9 that he is not able to remember whether custom official had prepared seizure list or not and further whether he had put his signature over the aforesaid seizure list. That means to say from examination-in-chief as well as cross-examination, it

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is apparent that he had filed written report before the Officer Incharge, Sugauli P.S. but conspicuously, the aforesaid written report happens to be away from the record on account of not being an exhibit of the record.

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11. From Ext-1, seizure memo/detention memo prepared by PW-1 on 03.05.1997, it is evident that it was prepared at Sugauli P.S. and further it contains the disclosure that the accused/petitioners along with contraband goods were handed over by the Officer Incharge, Sugauli P.S, who were arrested by Md. Perwez Ali, S.I. but the aforesaid Ext-1 does not contain the description with regard to written report furnished by Md. Perwez Ali, as divulged by PW-9, Md. Perwez Ali. The aforesaid written report has got a bearing on account of the fact that from the evidence of PW-9, it is apparent that while he was returning from night patrolling along with armed forces, during course thereof, the vehicle along with contraband goods were seized. The aforesaid written report or the station diary, had it been proved and exhibited, certainly in its full probability would have disclosed presence of Md. Perwez Ali alone or having the patrolling party consisting of other police officials who would have, in case having their presence, have proved the factum of search and seizure by Md. Perwez Ali, PW-9 because of the fact that there happens to be

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absence of seizure list witnesses during course of conduction of trial.

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12. Admittedly, the search and seizure was not made by the custom officials nor any of the custom official have claimed, in the aforesaid background to be an eyewitness of occurrence and on account thereof, they rightly did not claim themselves to be eyewitnesses to occurrence more particularly, with regard to search and seizure. Then in that event, the other circumstance whereupon the prosecution relies is on the basis of inculpatory extra-judicial confessional statement falling under Ext-3 series. PW-3, J.S. Upadhayaya claiming himself to be Superintendent of Central Excise came forward to say that he had interrogated the accused as is evident from para-4 of his examination-in-chief and in likewise manner had exhibited the same under Ext-5 Series as is evident from para-5. Surprisingly, during course of cross-examination at para-10, he had stated that the interrogation is not in his pen. In whose pen it is, he cannot say. That means to say, by such evidence, PW-3 had raised controversy over inculpatory extra-judicial confessional statement of accused which they have made in accordance with Section-108 of the Act.

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13. PW-1 has claimed that he is the person who took

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charge of contraband goods along with relevant documents, accused from the Officer Incharge, Sugauli P.S. and on account thereof, he had prepared inventory list. The accused persons failed to explain their position and on account thereof after completing enquiry he had submitted complaint petition after having the sanction order. In para-6 of his examination-in-chief, he had stated that he took statement of both the accused independently in carbon process over which the accused had also put their signatures as well as he himself and had exhibited the same under Ext-3 series. He had also stated that later on both the accused were interrogated by the Superintendent. During cross-examination under para-12 he had stated that Commissioner had vested power to file complaint. He had not filed Notification. However, after going through the sanction order as well as complaint petition he had clearly admitted that no such entrustment/empowerment has been made. The aforesaid document has not been filed by the prosecution. That means to say, the status of PW-1 being a proper option in terms of Section-2 (34) of the Act still not been out of controversy which is further evident from paras- 21, 22 and 23 of his crossexamination.

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14. PW-2 simply assisted PW-1 as per order of Assistant Commissioner and during course thereof, he happens to

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be mere a formal witness and in likewise manner happens to be the evidence of PW-4.

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15. PW-5 is Bansilal Marandi, a custom constable who had deposed in different way disclosing that on 03.05.1997 Officer Incharge, Sugauli P.S. brought Tata-407 at his Custom office laden with disposable gas lighter, 2 Cell torch along with petitioners which were seized.

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16. PW-6 was tendered. PW-7 is the Inspector who had also corroborated the evidence of PW-1 without having involvement during course of conduction of enquiry nor have got any concern with the affair of search and seizure.

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17. PW-8 is another custom constable who had given a new story stating that Md. Perwez Ali, Sub-Inspector had seized the contraband goods over which he along with his Officers have gone to Chhapwa where Md. Perwez Ali had handed over Gas Lighter and torch to his officer. One vehicle and two persons were also there who were apprehended.

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18. Section-2 (34) of the Act identifies the “proper

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officer” by way of following definition.

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“Proper officer” in relation to any functions to be performed under this Act, means the officer of Custom who is assigned those functions by the Board or the Commissioner of Custom.

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Section 5(2) also empowered the Collector to exercise the powers and duties of subordinates under the Act, It

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was contended that for the purpose of seizure, the Collector is not the “proper officer” and hence, seizure of documents made by the Collector of Customs was invalid. The appellant also sought to distinguish between “functions” and “powers and duties” exercisable by proper officer. This was rejected by the Court holding that the Collector of Customs would be a “proper officer” in relation to the functions to be performed by the Act, because as a matter of principle, the Collector of Customs who has assigned the powers of “proper officer” to the subordinate officer must himself be deemed to have the powers of a “proper officer” under Section 110(3) of the Customs Act, 1962.

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19. Section-3 denotes the classes of officers of Custom while Section-4 deals with the appointment of custom officials.

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[S. 3 Classes of officers of customs.— There shall be the, following classes of officers of customs, namely:—

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(a) Chief Commissioners of Customs (b) Commissioners of Customs (c) Commissioners of Customs (Appeals) [(cc) Joint Commissioners of Customs] (d) Deputy Commissioners of Customs [(e) Assistant Commissioners of Customs or Deputy Commissioner of Customs]

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(f) such other class of officers of customs as may be appointed for purposes of this Act]

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[S. 4. Appointment of officers of customs.—(1) The [Board] may appoint such persons as it thinks fit to be officers of customs.

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(2) Without prejudice to the provisions of sub-section (1), the [Board] may authorize a Chief Commissioner of Customs or] a Commissioner of Customs or a [Joint] or [Assistant Commissioner of Customs or Deputy Commissioner of Customs] to appoint officers of customs below the rank of Assistant Commissioner of Customs.]

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20. Section-107 of the Act deals with the power to

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examine persons:-

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S. 107. Power to examine persons.— Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods,—

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(a) require any person to produce or deliver any document or thing relevant to the enquiry;

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(b) examine any person acquainted with the facts and circumstances of the case.

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21. Section-108 of the Act cast obligation upon the persons to give evidence as well as produce evidence:-

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S. 108. Power to summon persons to give evidence and produce documents.— (1) Any gazetted officer of customs shall have power to summon any persons whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.

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(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the persons summoned.

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(3) All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required:

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Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this Section.

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(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860).

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22. After having analytical study of Section 107 and

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108 of the Act, it is evident that interrogation, examination can be effected by the Custom Official being gazetted one only so having entrusted by the Commissioner of Custom and for that it happens to be obligation on the part of the prosecution to identify the relevant officer having been entrusted/delegated with the power by the Commissioner of Custom for the aforesaid purpose.

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23. PW-1 is the person who had handled the case after having been handed over by the officer Incharge, Sugauli P.S.. Then in that event, although in his examination-in-chief, he claimed but during cross-examination, he failed, not only failed rather the prosecution reason best known to it kept silence during trial regarding delegation of power by the Commissioner in favour of PW-1 to handle the case to enquire into the matter to make search and seizure and to file complaint. The aforesaid issue is found unmarred when Section-110 of the Act is gone through. For better appreciation the same is quoted below:-

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S. 110. Seizure of goods, documents and things.— (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods:

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Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.

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(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations,

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by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.

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(1B) Where any goods, being goods specified under sub-section (1A), have been seized by a proper officer under subsection (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of—

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(a) certifying the correctness of the inventory so

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prepared; or

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(b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or

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(c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.

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(1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application.

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(2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized:

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Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioners of Customs for a period not exceeding six months.

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(3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.

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(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof a taken extracts therefrom in the presence of an officer of customs.

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24. After having conjoint reading of Section 107,

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108 and 110, three kinds of Officers have been perceived. As per Section 107, it happens to be the officer so empowered by Commissioner of Custom, in terms of Section-108 it happens to be the Gazetted Officer who is authorized to enquire and record the statement, see the propriety of the document, if any so produced in compliance of his direction while Section 110 deals with the seizure of the goods, document by the proper officer whose presence has been under Section-2 (34) of the Act. None of the aforesaid identity has been explained and magnified during course of trial much less regarding status of PW-1.

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25. By non production of seized article along with non compliance of mandatory provision is another dent over prosecution case. As is evident from Section 110 (1-B) as soon as the goods are being seized, the proper officer shall prepare an inventory of such goods along with details and then thereafter shall make an application to the Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared (b) in the presence of the Magistrate, photographs of such goods and certifying such photographs as true, (c) allowing to draw representative sample of such goods, in the presence of Magistrate and certifying the correctness of any list of samples so drawn. Section-110 (1-C) provides where application is made under sub-

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section 1-B the Magistrate may allow the application.

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26. From Ext-6, the prosecution has produced certificate for disposal of the seized goods in terms of Section-110 (1-A ) of the Custom Act which is of dated 17.01.1998, near about nine months after alleged seizure, simply discloses that the same was produced before the Magistrate on 17.01.1998 for certifying the correctness of inventory which could have been found volatile for want of promptness as well as for want of that requirement as

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mandated under Section-110 (1-B) of the Act.

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27. Thus, from the nature of documentary evidence

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as well as oral evidence as produced during course of trial the following infirmities are found:-

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(a) PW-1 the complainant has not been able to identify himself as proper officer in terms of Section-2 (34) of the Act. (b) He also failed to acknowledge himself being an officer so delegated or having been Gazetted Officer to inquire into the matter record statement of witnesses, accused and on account thereof sanctity of Ext-3 series is found at stake. (c) The extra-judicial confessional statement was recorded by PW-3, Ext-5 Series also appears to be a worthless on account of evidence of PW-3, para-10. For want of a positive and concrete evidence showing presence of PW-1 as proper officer, the search and

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seizure made under Section-110 is in contravention thereof, (d) There is utter violation of mandate of 110 (1-B) (B and C). (e) Non examination by the PW-1 during course of enquiry the seizure list witnesses, the member of the escort party of Sugauli P.S. as well as non production thereof as a witness during trial. (f) Concealment of written report furnished by PW-9, Md. Perwez Ali, S.I. who has alleged to have seized the contraband goods.

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28. The aforesaid infirmities did not protect the prospect of prosecution under the garb of Section 123 of the Act wherein burden of proof is found shifted upon the accused because of the fact that initially burden has to be discharged by the prosecution itself wherein it has failed.

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29. Basing reliance by the learned lower court over Commissioner of Custom, Govt of India v. Vijay Kumar reported in 2012 (1) PLJR 676 is not of much use because of the fact that same had arisen against the order of Custom Excise And Service Tax Appellate Tribunal against confiscation proceeding wherein mode of consideration happens to be different than that of criminal prosecution.

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30. After taking into account the totality of the event, the successive judgments of conviction and sentence rendered by

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the learned lower courts happen to be unsustainable. Consequent

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thereupon, they are set aside. Petition is allowed.

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31. Since petitioners are in custody, they are directed

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to be released forthwith if not wanted in any other case.

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(Aditya Kumar Trivedi, J)

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Patna High Court January 13^th 2014 perwez/AFR

Pramod Kumar and Anr. v. The Union Of India customs Department

Case brief

What is this about?

What did the court decide?

Pramod Kumar and Anr. v. The Union Of India customs Department

Case brief

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