Assistant Collector, Customs vs Amrik Singh

K.C. Puri, J.—By this common judgment, I intend to dispose of criminal Appeal No. S. 696 SBA of 1997 titled as Assistant Collector, Customs v. State of Punjab and Criminal Revision No. 595 of 1997 titled as Ajit Pal Sethi and another v. Union of India through Assistant Collector, Customs as both appeal and revision have arisen out of the same judgment and incident. For convenience facts are being taken from Criminal Appeal No. S. 696 SB of 1997 titled as Assistant Collector, Customs v. State of Punjab. Ajit Pal Singh Sethi and Daljit Singh-accused have been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a line of Rs. 10,000/- each. In default thereof, further rigorous imprisonment for one year in a case u/s 135 of the Customs Act, 1962 fin short the Act).

The facts of the prosecution case, in brief, are that on 4-5-1992 the officials of Directorate of Revenue Intelligence (Regional Unit) Amritsar, comprising of S.K. Luthra, Senior Intelligence Officer, Buta Singh, Harpal Singh, V.K. Sharma, all intelligence officers, R.K. Saini, Steno, Rajbal Singh Sepoy, Kashmir Singh along with Border Security force consisting of Sharam Singh, Jasbir Pal Singh, Dhir Singh, Roop Singh, Sukhwinder Singh, Baljinder Singh, Shankar Singh. Sukhdev Raj, Vijay Singh Negi, Bhagwan Singh, Baga Singh, Raghbir Singh and Nand Kishore, had set up naka on Pathankot-Jalandhar road near Mukerian. On the basis of specific information, the party intercepted one Mahindra Jeep bearing registration No. PB-08-K-0992 near Mukerian on the said road along with its two occupants Ajit Pal Singh Sethi and Daljit Singh at 8:15 hours. The place of interception being unsafe, the jeep including the above-mentioned occupants was escorted to the above-mentioned Directorate where the said jeep was thoroughly rummaged in the presence of Satnam Singh son of Tara Singh, Kulwant Singh son of Sulakhan Singh and C.S. Pokharia, Assistant Director (General) B.S.F. headquarter Jalandhar and the above-mentioned customs/B.S.F. officers. The rummaging revealed a specifically designed secret cavity in the rear mud-guard on the left side of the said jeep''s body. The search of the cavity revealed four cloth vansalies which when opened yielded gold biscuits duly wrapped in adhesive tapes which on counting came to 400. Each biscuit weighing 10 tolas was bearing foreign marking. On further rummaging, one more cavity built in right side of the mud-guard of the jeep was detected from where, three more vansalies were recovered. When the same were opened, the same revealed 328 more gold biscuits each weighing 10 tolas bearing foreign marking duly wrapped in similar adhesive tapes. Therefore, in all 728 gold biscuits valued at Rs. 3,65,00,464/- were recovered and the same were seized u/s 110 of the Customs Act, 1962 in consequence of failure of Ajit Pal Singh Sethi and Daljit Singh to produce any documentary evidence regarding their lawful importation acquisition/possession/transportation. The above-mentioned jeep valued at Rs. 2,00,000/- was also taken into possession u/s 115 of the said Act along with the registration book and insurance cover note.

Statements of Ajit Pal Singh Sethi were recorded on 4-5-1992, 5-5-1992 and 6-5-1992 before S.K. Luthra, wherein, he admitted the recovery of the above said gold biscuits in the stated manner and he also admitted that on 3-5-1992, he along with Daljit Singh and Inderjit Singh had proceeded from Jalandhar to village Nagri near Kathua in the above-mentioned jeep for taking gold and on 4-5-1992 they were returning after obtaining the gold to Jalandhar. Inderjit Singh got down from the jeep at Lakhanpur and that he (Ajit Pal Singh Sethi) and Daljit Singh were intercepted by the above-mentioned officers of the Directorate of Revenue Intelligence, Regional Unit, Amritsar and he further added that the gold under seizure did actually belong to Amrik Singh @ Chamku and his son Salwinder @ Billa and they are the carriers and were doing this job for monetary consideration with the connivance of Inderjit Singh who was the owner of the jeep. The statements of Daljit Singh were also recorded on the above-mentioned dates before Sh. S.K. Luthra and he also admitted the recovery memo (panchnama) dated 4-5-1992 by Harpal Singh, Seizing Officer. These gold biscuits were got tested from Vijay Kumar and Ghansham Dass. Investigating Officer reached at the spot and prepared site plan and after completion of necessary investigations, challan against the accused was presented for trial of the accused.

In pre-charge evidence, prosecution examined Harpal Singh, Intelligence Officer, DRI (PW-1), S.K. Luthra, Superintendent Customs (PW-2), Buta Singh, Custom Inspector (PW-3), V.K. Sharma, Intelligence Officer, DRI (PW-4), Ghansham Dass, goldsmith (PVV-5), Vijay Kumar, goldsmith (PW-6) and closed the evidence.

Charges u/s 135 of the Act were served upon the accused to which the accused pleaded not guilty and claimed trial. Therefore, the prosecution witnesses were recalled for further cross-examination. Thereafter, the complainant closed its evidence.

In their statements recorded u/s 313 of Cr.P.C., the accused denied all the allegations as incorrect and pleaded that they have been falsely involved in this case. Accused Ajit Pal Singh Sethi has stated that he was taken away from his house by the officials of Directorate of Revenue Intelligence on 4-5-1992. He was told that Inderjit Singh, who was tenant in his house has been apprehended with gold and that his statement is to be recorded. Summons were got served at his residence. He was taken from his house in the presence of so many people and brought to Directorate Revenue Intelligence Office, Amritsar where he was asked to write confessional statement involving himself and other accused. Statement was dictated to him by the officials of DRI under duress and threat. He further stated that he never admitted that the gold has been recovered from him nor he stated that gold belonged to Amrik Singh @ Chamku and Bal-winder Singh @ Billa. He was made to sign blank papers under duress and threat. On 7-5-1992 he had submitted an application before the Court. On 23-11-1992 after he was released on bail he made application about his innocence to Collector Customs, Chandigarh that he is innocent and has been falsely implicated.

Accused Daljit Singh stated that he was picked up from bus stand when he came from Patiala. He never made any statement voluntarily. He was asked to write the statement as per dictation of officers of DRI under duress and threat. He never told that the gold biscuits have been recovered from him or their co-accused nor he stated that the gold biscuits belonged to Amrik Singh @ Chamku. In his defence, accused Daljit Singh examined DW-1, Satish Kumar DW-2 and M.K. Bhan DW-3. Other accused did not lead any evidence in defence.

The trial Court after appreciating the evidence convicted and sentenced the accused-appellants vide judgment and order dated 10-3-1997 passed by learned Additional Sessions Judge, Amritsar, as aforesaid whereas acquitted accused Amrik Singh @ Chamku and Balwinder Singh alias Billa.

Feeling dissatisfied with the aforesaid judgment and order dated 10-3-1997, accused-Ajitpal Singh Sethi and Daljit Singh preferred appeal before ld. Sessions Judge, Amritsar. The learned Additional Sessions Judge, Amritsar vide judgment dated 24-5-1997 dismissed the appeal.

Still feeling dissatisfied with the aforesaid judgment dated 24-5-1997 and dated 10-3-1997, the present revision petition has been directed by the accused whereas the Union of India has preferred the appeal against the impugned judgment dated 10-3-1997 vide which accused Amrik Singh @ Chamku and Balwinder Singh have been acquitted.

I have heard learned counsel for both the sides and have gone through the records of the case.

The learned counsel for the appellant (Assistant Collector of Customs) has submitted that Trial Court has accepted the statement of co-accused Ajit Pal Singh and Daljit Singh u/s 108 of the Customs Act. Both these accused have stated in their statement recorded u/s 108 of the Customs Act that they were mere carrier and the gold biscuits belong to Amrik Singh and Balwinder Singh, the accused acquitted by the trial Court. So, the learned trial Court should have also convicted Amrik Singh and Balwinder Singh, more so when conviction of Ajit Pal Singh and Daljit Singh has been upheld by the learned Additional Sessions Judge.

Counsel for Amrik Singh and Balwinder Singh has supported the judgment of the trial Court.

I have carefully considered the said submission made by the counsel for customs but do not find any force in that submission.

The trial Court has given a detailed reasoning for acquitting Amrik Singh and Balwinder Singh in paragraph No. 11 of its judgment. That finding is based upon authority Sh. Parkash Chand Lunia v. Amlesh Chaudhary, Intelligence Officer, 1993 (2) RCR page 535 and Mahabir Biswas and Another Vs. State of W.B., .

The question arises whether the admission of co-accused u/s 108 of the Customs Act can be the basis of conviction of other co-accused. The learned trial Court has rightly held that statement of co-accused u/s 108 of the Act against the co-accused is a weak type of evidence and conviction of co-accused cannot be based on the uncorroborated statement of co-accused. Counsel for the appellant (Customs) is fair enough to concede that there is no corroborative evidence against Amrik Singh @ Chamku and Balwinder Singh for warranting their conviction u/s 135 of the Customs Act except statements of co-accused u/s 108 of Customs Act.

Consequently, the appeal preferred by the Customs Department stands dismissed being without any merit.

Criminal Revision Petition No. 595 of 1997

Shri Bipan Ghai, learned Senior counsel for the revisionist has not challenged the conviction of both the accused Ajit Pal Singh Sethi and Daljit Singh u/s 135 of the Customs Act. Otherwise also, there is concurrent finding of fact recorded by both the Courts below in respect of quilt of revisionists u/s 135 of the Customs Act. So, the conviction recorded by both the Courts below in respect of offence u/s 135 of Customs Act against both the revisionists stands affirmed.

Regarding quantum of sentence, learned counsel for the revisionist has submitted that occurrence relates to 4-5-1992 i.e. more than 21 years ago. The case of the prosecution itself is that the revisionists were carriers. The Hon''ble Apex Court in authority reported in jeevraj B. Jain v. Central Excise and Customs Deptt. and another, 2000 (10) SCC page 270 reduced the sentence to already undergone in case of recovery of 600 gold biscuits, however, the sentence of fine was enhanced in that case. So, it is submitted that appellants are not previous convicts nor have been tried for any similar offence. The petitioners were taken into custody on 24-5-1997 on the date of judgment by learned Additional Sessions Judge, Amritsar and they were allowed the concession of bail vide order dated 8-7-1997. So, the prayer has been made for taking lenient view in the matter of sentence in view of authority jeevraj B. Jain''s case (supra).

Counsel for the Customs Department has opposed the prayer.

I have given my thoughtful consideration to the rival submissions made by both the sides regarding quantum of sentence.

As per record of Appellate Court, the petitioners/revisionists remained in custody from 24-5-1997 till 7-8-1997 when they were granted concession of bail by this Court in the present revision petition. The occurrence relates to more than 21 years and since then petitioners are undergoing the agony of trial. Even according to the case of the prosecution, the petitioners were simply carriers for payment of some amount. The Hon''ble Apex Court in authority Jeevraj B. Jain''s case (supra) direct the accused to pay a fine of Rs. 1,00,000/- where the occurrence related to the recovery of 600 gold biscuits and the matter was 30 years old in that case.

So keeping in view the ratio of the said authority, the sentence of the petitioners stands reduced to the period already undergone. However, their sentence of fine stands enhanced to Rs. 2,00,000/- each instead of Rs. 10,000/- as imposed by the trial Court. The said amount shall be paid within two months from the receipt of copy of this judgment failing which the petitioners shall undergo the remaining part of their substantive sentence awarded by the trial Court.

With the modification in sentence, as aforesaid, the revision petition stands disposed of accordingly. A copy of this judgment be sent to the trial Court for strict compliance.