Pawan Gupta Vs State of Haryana and Others

Mr. Rajesh Sethi, Senior Sta n ding Counsel with Ms. Kanika Sachdeva, Advo c ate, Ms. Preeti Bansal, Advocate a nd Mr. Anshuman Sethi, Advoc a te for respondent No. 4.

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MANISHA BATRA, J.

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The instant petition has been filed by the petitioner under Se c tion 482 of th e Criminal Procedure Code (fo r short ‘the Code’) for quashin g of order dat e d 15.10.2016 (Annexure P-1), passed by the Court of lea r ned Judicial M agistrate First Class, Sonepat in case titled as DRI vs. Pawan , arising o u t case bearing CRM-30-2019 , dated 17.08.2019, whereby the petitioner h ad been declared a proclaimed person.

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As per the allegations, on the basis of a secret inform a tion received b y the Custom Department ab o ut a huge quantity of red sa n ders wood bei n g transported to Sharjah, UAE i n a container, the said container was checked o n 24.10.2014 and red sanders w o od weighing 54 metric tons ha v ing

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value of a p proximately Rs. 23 crores wa s seized. It was kept hidden in some bath tubs. On 25.10.2024, search operat i on was conducted at a godo w n at Bakhtawa r pur, New Delhi and incrimin a ting documents, laptops etc. w ere taken into possession from one Anil Ku m ar Singh. Some other persons w ere also appr e hended and recovery of some r ed sanders wood was also eff e cted from the g odown. One of the apprehen d ed persons namely Thindu Sherpa recorded a statement that the said godo w n was taken on rent by the pr e sent petitioner. It emerged that in fact the peti t ioner was the mastermind, who had constitute d a syndicate for dealing with p r ohibited red sanders wood. He was not found available at his known addresses at Delhi and Kundali, Son i pat. Summons were issued to him. The petit i oner, however, managed to fl e e to Nepal. O n 27.04.2015, a detention o r der under the provisions of the Conservat i on of Foreign Exchange and P revention of Smuggling Acti v ities Act, 1974 (for short ‘ COFEPOSA’ ) was issued against the petitioner fo r his preventiv e detention. He did not surre n der. An application under Se c tion 7(1)(a) of COFEPOSA was filed before t he concerned Magistrate at So n ipat for initiati n g proclamation proceedings a g ainst the petitioner for securin g his presence.

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Vide order dated 30.08.201 6 , passed by the Judicial Magis t rate First Cla s s, Sonipat, proclamation was ordered to be issued against the petitioner for 15.10.2016. The proclamati o n was directed to be issued by way of publica t ion in Newspaper also. On 15.10.2016, the executing police of f icial appeared b efore the concerned Court an d recorded his statement regar d ing publicatio n of proclamation on 01.10.2016. By observing that the

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proclamat i on had been duly executed, t h e learned Magistrate declare d the petitioner a proclaimed person on the sam e day.

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The present petition has b e en filed by the petitioner on the grounds a n d it has been argued by his co u nsel that the impugned order d ated 15.10.201 6 is not sustainable in the e y es of law as while declaring the petitioner as a proclaimed person, the lea r ned Magistrate ignored the fact that the due p rocedure as prescribed under Section 82 of the Code an d as establishe d under law for declaring a per s on as proclaimed one had not b een followed. The learned Magistrate commi t ted a grave error in observing that the mand a tory period of 30 days had ela p sed since the date of execution of proclamat i on, though in fact it had not e x pired. The fact that the Direct o r of Revenue I n telligence had moved a similar application simultaneously bef o re a Court at D elhi and two simultaneous a p plications under Section 82 o f the Code on t he same allegations could not be moved was also not taken into considerat i on by the learned Magistrate. W ith these broad submissions, it is urged that the present petition deserves to be allowed and the impugned o rder is liable to be set aside.

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A joint reply has been filed o n behalf of respondents No. 2 a n d 3, whereas a separate reply has been filed o n behalf of respondent No. 4. It is argued by learned Assistant Advocate G e neral, Haryana and learned co u nsel for respo n dents No. 2 and 3 that there i s no infirmity and illegality i n the impugned order and, therefore, the petitio n is liable to be dismissed. 6. However, learned counsel f o r respondent No. 4 has argued that the petitio n er was issued notices to appear before the Directorate of Rev e nue Intelligen c e but he failed to do so. A co m plaint had also been filed ag a inst

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him in th e Court of Chief Metropolitan M agistrate, Patiala House at D e lhi. The petiti o ner had managed to flee to N epal when he came to know a b out seizure o f red sanders wood. A detent i on order under the provision s of COFEPO S A was passed against him. The same could not be served upon him at his N e pal address since Nepal is a sovereign country. Hence, the applicatio n s for initiating proclamation proceedings were filed before the jurisdictio n al Courts, wherein the petitio n er had been ordinarily residing in India. Th e learned Magistrate has foll o wed the proper procedure w hile declaring h im a proclaimed person and th e re is no illegality or infirmity i n the impugned order. A writ petition filed by t h e petitioner under Article 226 o f the Constituti o n of India before the Delhi H i gh Court challenging his dete n tion order has b een dismissed, vide order date d 16.10.2024. Hence, it is urged that the presen t petition is liable to be dismissed. 7. I have heard learned counsel f or the parties at considerable le n gth and have a lso gone through the material p l aced on record. 8. On giving due deliberation s to the contentions as raise d by learned c o unsel for the parties and on an overall perusal of the orders passed by the le a rned Magistrate from the da t e of initiating proceedings u n der Section 8 2 of the Code as against the peti t ioner till the date of declaring h i m a proclaime d person, I am of the consider e d opinion that the impugned o rder dated 15.10.2016 suffers from material illegalities and is liable to be qua s hed with all th e consequential proceedings ari s ing therefrom. 9. At the outset, it would be r e levant to refer to the provisio n of Section 8 2 of the Code, which provid e s for publication of proclam a tion against th e person absconding. It reads as u nder:

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“ 82. Proclamation for person absconding. –

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(1) If any Court has reason to believe (whether after t a king evidence or not) that an y person against whom a warran t has been issued by it has abs c onded or is concealing himself so that such warrant cannot b e executed, such Court may publish a written proclamation requiring him to appear at a spe c ified place and at a specified time not less than thirty days fro m the date of publishing such p roclamation.

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(2) The proclamation sh a ll be published as follows:-

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(i) (a) it shall be publicly read in some conspicuous p lace of the town or vill a ge in which such person ordin a rily resides;

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(b) it shall be affixe d to some conspicuous part of the house or homestead in whi c h such person ordinarily resides o r to some conspicuous p l ace of such town or village;

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(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

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(ii) the Court may also , if it thinks fit, direct a copy o f the proclamation to be publ i shed in a daily newspaper circul a ting in the place in which suc h person ordinarily resides. (3) A statement in w riting by the Court issuing the proclamation to the e ff ect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), s hall be conclusive evidence tha t the requirements of this sec t ion have been complied with, and that the proclamation was pu b lished on such day.

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(4) Where a proclamati o n published under sub-section (1) is in respect of a person ac c used of an offence punishable under section 302, 304, 364, 3 6 7, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436 , 449, 459 or 460 of the Indian P enal Code (45 of 1860), an d such person fails to appear a t the specified place and ti m e required by the proclamation, the Court may, after making such inquiry as it thinks fit, prono u nce him a proclaimed offe n der and make a declaration to that effect.

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(5) The provisions of su b -sections (2) and (3) shall apply to a declaration made by th e Court under sub-section (4) as they apply to the proclamatio n published under subsection (1).”

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There are catena of jud g ments of different High C o urts discussin g the requirements necessary for issuance and publicatio n of proclamat i on against an absconder under S ection 82 Cr.P.C. and for decl a ring him as a p r oclaimed person/offender. The s e requirements have been discussed from time to time in Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561, Bishundayal Mahton and others Vs. Emperor : AIR 1943 Patna 366, Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783, Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal) 339, Dilbagh Singh Vs. State of Punjab : (P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368, Birad Dan Vs. State : 1958 CriLJ 965, Negi alias Debu Vs. State of U.P. and another, 1994 Cri LJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318.

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The position of law as laid d own in the above cited autho r ities may be su m marized as under:

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(i) Prior issuance of wa r rant of arrest by the Court is sine qua non for issuance and p u blication of the proclamation an d the Court has to first issue warrant of arrest against the p e rson concerned.

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(ii) There must be a re p ort before the Court that the p e rson against whom warrant w as issued had absconded or had b een concealing himself so t h at the warrant of arrest could n o t be executed against him. H o wever, the Court is not bound to take evidence in this regard before issuing a Proclamation u nder Section 82 (1) of the Cr. P .C.

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(iii) The Court cannot i ssue the Proclamation as a matt e r of course because the Poli c e is asking for it. The Court mu s t be prima facie satisfied t h at the person has absconded o r is concealing himself so t hat the warrant of arrest, previ o usly issued, cannot be execut e d, despite reasonable diligence. (iv) The requisite date and place for appearance must be specified in the procla m ation requiring such person to a p pear on such date at the spec i fied place. Such date must not be less than 30 clear days from t he date of issuance and publicati o n of the proclamation.

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(v) Where the period b e tween issuance and publication o f the proclamation and the sp e cified date of hearing is less than t h irty days, the accused c annot be declared a procla i med person/offender and th e proclamation has to be issued and published again.

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(vi) The Proclamation h as to be published in the manner laid down in Section 82 (2 ) of the Cr.P.C.. For publication , the proclamation has to be fi rst publicly read in some conspic u ous place of the town or vi l lage in which the accused ordinarily resides; then the same h as to be affixed to some conspic u ous part of the house or ho m estead in which the accused ordinarily resides or to some cons p icuous place of such town or vi l lage and thereafter a copy o f the proclamation has to be affix e d to some conspicuous part of the Court-house. The three subclauses (a)- (c) in S e ction 82 (2)(i) of the Cr.P.C. are conjunctive and not disj u nctive, which means that there w ould be no valid publication o f the proclamation unless all the t hree modes of publication ar e proved. Where the Court so ord e rs a copy of the proclamatio n has to be additionally published in a daily newspaper circula t ing in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so tha t one each of the three copies o f the proclamation may be af f ixed to some conspicuous part o f the house or homestead in w hich the accused ordinarily resid e s, to some conspicuous place of such town or village and to s ome conspicuous part of t h e Courthouse and report rega r ding

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publication may be m ade on the fourth copy of the proclamation. Addition a l copy will be required where the proclamation is also req u ired to be published in the newspa p er. (vii) Statement of the se r ving officer has to be recorded b y the Court as to the date and mode of publication of the proclamation.

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(viii) The Court issui n g the proclamation has to ma k e a statement in writing in i t s order that the proclamation was duly published on a specifie d day in a manner specified in Se c tion 82(2)(i) of the Cr.P.C.. S uch statement in writing by the C ourt is declared to be conclu s ive evidence that the requiremen t s of Section 82 have been c o mplied with and that the proclam a tion was published on such d a y.

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(xi) The conditions spec i fied in Section 82(2) of the Cr.P. C . for the publication of a P r oclamation against an absconde r are mandatory. Any non-co m pliance therewith cannot be cur e d as an ‘irregularity’ and ren d ers the Proclamation and procee d ings subsequent thereto, a nul l ity.

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On applying the above disc u ssed position of law to the pec u liar facts and c ircumstances of the present c a se and on a perusal of the mat e rial placed on record, it is revealed that the M inistry of Commerce and Indu s try, Govt. of I ndia had passed a detention o rder against the present petiti o ner under the provisions of COFEPOSA on 0 6.05.2015. As per Section 3 ( 1 ) of this Act, C entral Government or the Stat e Government or any officer o f the Central G o vernment, specially empower e d, may, if satisfied, with respe c t to any perso n (including a foreigner), that, w ith a view to preventing him f rom acting in any manner prejudicial to th e conservation or augmentatio n of foreign exchange or with a view to preve n ting him from smuggling goo d s or abetting t h e smuggling of goods or enga g ing in transporting or conceali n g or keeping s m uggled goods or dealing in s muggled goods otherwise tha n by

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engaging in transporting or concealin g or keeping smuggled good s or harbourin g persons, engaged in smugglin g goods or in abetting the smug g ling of goods, make an order directing such p erson to be detained. Then as per Section 7 o f this Act, if the appropriate G o vernment has reason to believe that a person i n respect of whom a detention o rder has been made has absco n ded or is conc e aling himself so that the order c annot be executed, the Govern m ent may mak e a report in writing of the fac t to a Metropolitan Magistrate or a jurisdictio n al Magistrate in the place whe r e the said person ordinarily re s ides and there u pon the provisions of Section 82 of the Code shall apply in re s pect of such pe r son and his property.

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In exercise of its powers u n der the aforementioned provi s ions and being satisfied that the petitioner had a bsconded after passing of dete n tion order, the respondents-authorities moved application (Annexure P-8) b e fore the jurisd i ctional Magistrate at Sonipat o n 07.11.2015. The said Magist r ate, vide orde r dated 24.08.2016 (Annexur e P-11), issued proclamation u n der Section 8 2 of the Code against the petiti o ner. Now the question that req u ires considerat i on by this Court is as to wheth e r the proper procedure as prescribed under Se c tion 82 of the Code had b e en followed by the jurisdictional Magistrat e or not?

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On a perusal of the reco r d, it has been revealed tha t on 24.08.201 6 , learned Magistrate had passe d order for issuance of proclam a tion against th e petitioner for 15.10.2016. A c opy of order dated 15.10.2016 has been plac e d on record as Annexure P-1. T h is order reads as under :

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“Proclamati on issued u pon accused Pawan received b ack duly executed. Today m andatory period of 30 days a s per Section 82 Cr.P.C. ha v e been elapsed since executio n of

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the proclamation. Stat e ment of serving official reco r ded. None has appeared on behalf of accused Pawan since morning. Case called s everal times. It is already 3:30 PM. Hence, accused Pawa n is hereby declared as proclai m ed person. Now, for proc e edings u/s 83 Cr.P.C. to come u pon 19.11.2016.”

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A perusal of Annexure P-2 reveals that the executing p o lice official A S I Jaswant Singh had also appeared before the concerned Cou r t on 15.10.201 6 and had recorded his stateme n t that on 30.09.2016/01.10.201 6 , he had visite d the given address of the p e titioner, had pasted a copy o f the proclamat i on on the premises of the give n address, one photocopy was p a sted on the ma i n gate of the TDI City and on e was pasted on the notice boa r d of the Court. On a perusal of the statemen t of the executing police offici a l as well as th e order dated 15.10.2016, it is a p parent that the proclamation is s ued for 15.10.2016 had in fact bee n published/executed only on 30.09.201 6 /01.10.2016. Meaning thereby that as on 15.10.2016, the spec i fied period of 3 0 days had not expired. Henc e , the same was in clear violati o n of the provis i ons of Section 82(1) of the Co d e, as per which, a specified ti m e of not less t h an 30 days is required to be gi v en to the accused from the da t e of publishin g such proclamation which is m a ndatory in nature. Reliance in this regard ca n be placed upon Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826 and Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal) 339.

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Accordingly, in view of the d iscussion as made above and al s o in view of t h e ratio of law as laid down in above cited authorities, the pr e sent petition is allowed and the impugned ord e r dated 15.10.2016 (Annexure P -1),

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passed by the Court of learned Judicial M a gistrate First Class, Sonepat in case titled as DRI vs. Pawan , arising out c ase bearing CRM-30-2019 , d ated 17.08.201 9 , whereby the petitioner had b e en declared a proclaimed perso n , is quashed with all consequential pro c eedings arising therefrom. The responden t s will be at liberty to proceed further in the matter in accord a nce with law.

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20.03.2025 (MANISHA BATRA) Waseem Ansari JUDGE Whe t her speaking/reasoned Yes/No Whe t her reportable Yes/No

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Pawan Gupta v. State of Haryana and Others

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Pawan Gupta v. State of Haryana and Others

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