Crl.A. No. 577 of 2008. Case: Department of Customs Vs Joginder Pal Jain. High Court of Delhi (India)
| Case Number | Crl.A. No. 577 of 2008 |
| Counsel | For Appellant: Mr. H.S. Phoolka, Senior Advocate with Mr. Harsh Jaidka, Mr. Suryadeep Singh and Ms. Shilpa Dewan, Advocates for Mr. Naresh Grover, Adv. and For Respondents: Mr. S.S. Gandhi, Senior Advocate with Mr. Akshay Anand and Mr. K.R. Dogra, Advocates along with Respondent in person |
| Judges | S. Muralidhar, J. |
| Issue | Customs Act, 1962 - Sections 132, 135(1)(a), 110, 108, 114; Criminal Procedure Code - Sections 313, 311; Indian Penal Code - Section 120A; Foreign Exchange Management Act, 1991 |
| Judgement Date | August 28, 2014 |
| Court | High Court of Delhi (India) |
Judgment:
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The Department of Customs has in this appeal challenged an order dated 29th September 2006 passed by the learned Additional Chief Metropolitan Magistrate (''ACMM'') in Case No. 444/2004 acquitting the Respondent Joginder Pal Jain of the offence under Sections 132 and 135(1)(a) of the Customs Act, 1962 (''Act'').
The complaint
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The Complainant in this case was Mr. K.K. Dhasmana (PW-2) who at the relevant time was working as Air Customs Officer, IGI Airport, Terminal-II, New Delhi. According to the Complainant, on 29th January 1988, the Respondent was waiting at the IGI Airport, New Delhi at 1.30 am to travel to Hongkong via Bangkok by a Thai Airways Flight No. TG 914. The Respondent was holding an Indian passport issued from Chandigarh in the name of Mohan Lal S/o Ram Lal. The Respondent was travelling with one of his friends, Mr. Manohar Lal Grover who was also holding an Indian passport issued from Chandigarh.
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In the evidence of PW-2, it emerged that the travel documents and the baggage of both passengers were examined. Mr. Grover disclosed that he was carrying only one hand bag. He also disclosed that the other passenger travelling with him in the name of Mr. Mohan Lal was actually Mr. Joginder Pal Jain S/o P.L.Jain, a resident of Moga in Punjab. According to PW-2, the Respondent also admitted that his actual name was Mr. Joginder Pal Jain but had got a passport made in an assumed name. It was found that the Respondent had checked in one cardboard carton, one sea green colour suitcase and one briefcase of black colour of Dunsen make. The Respondent was asked to declare the contents of the baggages. He was asked whether they contained any restricted or prohibited items, or currency - foreign or Indian - or if he was carrying any such item on his person. He denied carrying any such items. Mr. Grover declared that he had one checked in baggage and that the Respondent had got the sea colour suitcase checked in Mr. Grover''s name in the airline counter. This fact was also confirmed by the Respondent. The baggage of the Respondent was examined in the presence of witnesses. It is stated that the Respondent opened the suitcase with a key taken out from the pocket of the coat which he was wearing. The suitcase was found to contain the personal clothing of Respondent and two packets of sweets. They were of abnormal shape and weight. When asked whether they contained any objectionable restricted item, the Respondent is stated to have replied that the packets contained only sweets. The said packets were opened and found to contain two polythene bags, one in each packet, concealed under a layer of ''burfi''. The polythene bags were found to contain foreign currency equivalent to Rs.16,12,371.89. These were recorded in panchnama. A separate panchnama was prepared of the personal clothing found in the suitcase. The cardboard box was found to contain items which were recorded in Annexure ''C'' to the panchnama.
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The personal search of the Respondent resulted in the recovery of foreign and Indian currency equivalent to Rs.7,463.90. This was also recorded in the Annexure to the panchnama. Since the Respondent could not produce any evidence or documents showing lawful possession of the recovered currencies, they were seized under Section 110 of the Customs Act on the reasonable belief that they were being attempted to be exported in contravention of the provisions of the Customs Act and the Foreign Exchange Regulation Act, 1973 (''FERA'').
The statements of Mr. Grover under Section 108 Customs Act
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The Respondent was produced before Mr. D.K. Malhotra (PW-1) who was posted as ACS (Preventive) at the IGI Airport. Mr. Grover made a statement before him on 29th January 1988 (Ex.PW-1/B) and thereafter again on 4th February 1988 (Ex.PW-1/A). On 29th January 1988, the Respondent also tendered a statement (Ex.PW-1/C) before PW-1. In his statement made on 29th January 1988, Mr. Grover stated that he arrived at the Old Delhi Railway Station on 28th January 1988 by Punjab Mail from Faridkot in the morning. After finishing some work in New Delhi, he met his friend, the Respondent, in Broadway Hotel. He stated that he and the Respondent were to travel by Thai Airlines to Hongkong on 29th January 1988 at 1.30 am. It had already been arranged between him and the Respondent that they would meet at the Broadway Hotel. He stated that the Respondent had on his own come to Delhi from Moga. Thereafter Mr. Grover reached the IGI airport at his own at around 10.30 pm. The Respondent reached there at 11.15 pm. They both entered the airport building together. As Mr. Grover was not fully aware of the procedure at the airport, the Respondent took his passport, ticket and small hand bag. The Respondent kept the hand bag in a trolley along with his own baggage consisting of one sea green suitcase, one card board carton and a black briefcase. He told Mr. Grover that he would manage and that Mr. Grover should not worry. Later both of them reported at the Thai Airlines counter. The Respondent presented Mr. Grover''s passport and baggage along with his own at the counter. Two boarding cards were issued to the Respondent and he returned to Mr. Grover his ticket and passport. Thereafter both of them reported at the departure hall. Mr.Grover stated that when the Customs Officer at the immigration counter asked him whether he was carrying any checked-in baggage, he replied that he was carrying only a small zipper hand bag containing his personal effects. When the customs officers examined the boarding pass, they found one baggage with tag No. TG 95-10-47 and asked Mr. Grover about it. He replied that the baggage belonged to the Respondent. The Customs Officer then asked the Respondent to bring his baggage to the Customs counter. The Respondent went to a nearby cabin where the suitcase and cardboard carton were lying near the baggage conveyor belt. The Respondent carried the said baggage to the Customs counter. After tallying the baggage tag number with those affixed on the boarding passes, Mr. Grover realised that the Respondent had checked-in his suitcase on Mr. Grover''s ticket for reasons not known to Mr. Grover.
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In his supplementary statement recorded on 4th February 1988, Mr. Grover reiterated that the earlier statement made by him on 29th January 1988 "was totally correct". He maintained that he was not aware till being informed by the Customs Officer that the Respondent was travelling in the fake name of Mr. Mohan Lal. The said statement records a question put to him stating that his lawyer had filed an application before the Metropolitan Magistrate (''MM'') that he was being compelled to give a confessional statement before the MM. Mr. Grover by way of reply to the question straightway denied it and stated that he had not moved any such application in any Court or instructed anyone to do so. He stated that any such application was not in his knowledge.
The statement of the Respondent under Section 108 Customs Act
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On his part, by statement dated 29th January 1988, the Respondent stated that his actual name was Joginder Pal Jain but he was holding an Indian passport in the name of Mr. Mohan Lal bearing his photograph and...
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