Parkash Chand Lunia vs Amlesh Chaudhary, Intelligence Officer, Directorate of Revenue Intelligence, New Delhi

G.S. Chahal, J.

This order will dispose of two connected Criminal Misc. Petition Nos. Cr. M7465M of 1992 and 6030M of 1992 filed under Section 482 Cr.P.C.

In both the petitions, a prayer has been made for quashing the complaint Annexure P4 filed by respondent1 and for quashing of order dated March 6, 1992 passed by CJM, Narnaul, and the order dated April 2, 1992 passed by Sh. S.N. Chadha, Additional Sessions Judge, Narnaul, annexed as Annexures P3 and P2 respectively.

For the sake of convenience the petitioner Parkash Chand Lunia is hereinafter referred to as accused3 and Narinder Kumar Lunia as accused4. The complaint has also been filed against Bishan Dayal referred to as accused1 and Vishwanath Aggarwal as accused2.

The facts as gathered from the complaint Annexure P4 may be briefly enumerated as under :

"A huge quantity of silver slabs of foreign origin are alleged to have been stored in a godown situated at village Surana, Rewari Narnaul road and these premises were occupied by the accused Bishan Dayal and his son Vishwanath Aggarwal. The Officers of the Directorate of Revenue Intelligence searched the said premises on the night of 5th/6th January, 1992 in the presence of two independent witnesses in accordance with law. It is alleged that the search resulted in the recovery of 158 silver ingots/slabs of foreign origin weighing 530/384 Kgs and valued at Rs. 4,18.80,933/ besides three moulds and some incriminating articles alongwith Rs. 2,25,000/. It is alleged that out of 158 silver slabs, 155 silver ingots were bearing markings indication there foreign origin and purity of 999 indicated on them. The remaining three slabs were made from molten ingot of the foreign marked silver. These ingots were tested by an assessor who certified them to be of 999 touch/high purity. It is further alleged that Bishan Dayal and his son Vishwanath could not produce any documentary evidence for import/possession of the aforesaid 158 silver ingots and accordingly these were seized under Section 110 of the Indian Customs Act, 1962. It is further alleged that the accused Bishan Dayal and his son made voluntary statements under Section 108 of the Custom Act, 1962 on 6.1.1992 admitting the alleged recovery and seizure of the above smuggled and foreign marked silver slabs from rented premises in village Suirana, Bishan Dayal also stated that his son Vishwanath runs a jewellery shop in Saraffa Bazar, narnaul, and deals in sale and purchase of silver jewellery and he used to visit Delhi. During these visits, he happened to meet accused3 Parkash Chand Lunia who is a silver king at Katra Nagin Chand near Chandni Chowk. This accused Parkash Chand Lunia agreed to pay Rs. 70/ per kg. as commission to dispose of the foreign marked silver an by converting the same to 1515 kg. slabs and to sell them as per his directions. It is further alleged that Parkash Chand Lunia despatched 110 silver slabs of foreign origin which had been melted in the furnace and converted into 1515 kgs slabs on 19.12.1991. It is also alleged that on 3.1.1992 Parkash Chand Lunia informed Bishan Dayal and Vishwanath regarding despatch of 155 slabs from Delhi which resulted in the alleged recovery. It is further alleged that accused3 Parkash Chand Lunia used to smuggle silver from Dubai at Ajmer and his son accused4 Narender Kumar Lunia was looking after the same. On 4.1.1992 Narender Kumar Lunia despatched about 155 silver slabs were concealed in the floor cavity of the truck and 155 silver slabs at Narnaul through Chhagan Bhai and these silver slabs with foreign marking with three silver slabs which were left over of the previous lot were recovered on search on 5th/6th January, 1992. The mould was to covert foreign mark silver slabs in the furnace at village Surana situated at Narnaul into 1515 kgs. pieces and to despatch the same at the directions of the accused Parkash Chand Lunia. Certain other documents viz. Sunny Exercise Note Book MarkC and Dimple Exercise Book MarkD were also recovered form various placed during investigation.

It is further alleged that Parkash Chand Lunia was summoned of enquiries under Section 108 of the Customs Act, 1962 on 13.1.1992 but he refused to make any statement and similarly, accused4 was also summoned but these summons were received unserved and summons has to be pasted at his premises. It is also stated that the import of the silver bullion into India from a place outside India without the general or special permission of the Reserve Bank of India is prohibited under Section 8(1) of the Foreign Exchange Regulations Act, 1974 crossponding to Section 13(1) of the Foreign Exchange REgulation Act, 1973. It is also stated that any silver imported into India contrary to the law is liable to confiscation under Section 111 of the Customs Act, 1962. It is thus alleged that the accused had acquired possession and were concerned in keeping, carrying, purchasing selling and dealing with the aforesaid silver weight 5103. 384 kgs. knowing or having reasons to believe that the same was liable to confiscation and they have committed under Section 135(1)(b) of the Customs Act, 1962."

The petitioners challenge their prosecution on the ground that there is no legal evidence to connect them with the offence committed by the accused1 and 2. Bishan Dayal accused1 had filed an application Annexure P1 before the CJM, Narnaul, while Vishwanath Aggarwal had filed an application Annexure P5 before the CJM, Narnaul retracting their statements and they had claimed that no voluntary statement had been made before the Customs Authorities and in fact the statements were got recorded under duress and threat. Learned counsel for the petitioners urges that even if the confessional statements of accused1 and 2 relied upon by the complainant formed some evidence, the same has lost its value in view of the same having been retracted by both the accused1 and 2. He further urges that the only other evidence relied upon is the mentioning of some names in the books recovered from the possession of accused1 and 2 which are claimed by the complainant to be referring to the petitioners and even this evidence cannot be used against the petitioners for the very reason that smuggler may be interested in creating evidence for involving other persons and a defence for himself. The documents are not authentic and the petitioners being into party to the same, they are not relevant against them.

Mr. Satish Aggarwal, who appears for the respondents has, however, urged that there was sufficient evidence to connect the petitioners with the crime complained of and there was circumstantial evidence to connect the petitioners with the crime.

The main evidence on which reliance is placed are the confessional statements of accused 1 and 2 in which they have implicated the petitioners also about their involvement in the smuggling of silver.

The confessional statement of a coaccused is relevant under Section 30 of the Evidence Act which provides as under

"30. Consideration of proved confession affecting persons making it and others jointly under trial for some offence :

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

The scope of this Section was considered by their Lordships of the Supreme Court in Haricharan Kumari v. State of Bihar, AIR 1964 SC 1184, and their Lordships observed :

"It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence circumstances with are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of coaccused person it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated is the effect of the provisions contained in Section 30."

It was further held :

"As we have already indicated, it has been a recognised principle of the Administration of criminal law in this county for over half a century that the confession of a coaccused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible form the said evidence. In criminal trial there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases, where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a coaccused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compel the Court to render the verdict that the charge is not proved against him, and so he is entitled to the benefit of doubt."

I am unable to endorse the view quoted her under by R.L. Gupta, J of the Delhi High Court in Yudhister Kumar v. State and another, Cr. M (M) 1613/91 decided on December 4, 1991 :

"The concept of a confession in my view, in cases under the IPC cannot be extended to statement of coaccused persons in cases under the Sea Customs Act or the NDPS Act."

For the purpose of evidence, the principles of the Evidence Act will apply irrespective of the nature of offence for which an accused person is being tried, unless of course some special provision is provided in the relevant Act dealing with the Rules of evidence. I, thus, agree with the argument of the learned counsel for the petitioners and conclude that the statements of the accused1 and 2 were not substantive evidence and cannot be made the basis of any conviction.

The only other evidence relied upon is regarding some reference to the names of the petitioners in some documents recovered from the possession of accused1 and 2. Ld. counsel for the petitioners challenges the fact that the names mentioned in those documents in fact refer to the present petitioners. Obviously this question of fact cannot be gone into in the present proceedings but the fact remains that the documents are such which are not authentic and are prepared by the persons who have definitely been found in possession of smuggled silver. The names mentioned in the documents prepared by them may be selfserving to create a defence in case they are caught.

Mr. Aggarwal has conceded at the bar that mere finding of names in these documents will of course into be sufficient to base any conviction. Mr. Aggarwal has, however, relied upon the fact that Parkash Chand Lunia petitioner had refused to make a statement before the Customs Authorities while Narender Kumar Lunia has refused to appear and that on that basis he has argued that the same is a circumstance showing their guilt.

I am, however, of the view that the refusal to make a statement by Parkash Chand Lunia and refusal to appear before the Customs Authorities by Narender Kumar Lunia do not create any circumstances with respect to the present case about their involvement. As per the information supplied by Mr. Aggrwal, Parkash Chand Lunia is already being prosecuted for his refusal to make a statement. That prosecution is obviously into a subject mater of the present petition. I agree with the contention of the learned counsel for the petitioners that there are bleak chances of conviction on the basis of the evidence relied upon by the complainant and in such a case criminal proceedings should be quashed.

To support this view, the following observations of their Lordships of the Supreme Court in Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojitao Angre and others, 1988(1) RCR 565 may be noted :

"The legal position is wellsettled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at preliminary stage."

Since in the present petition, the petitioners home come to the court for quashing of the complaint and the prosecution based on the basis of that complain itself, the observations made by their Lordships of Supreme Court in Chandra Deo Singh v. Prakash Chandra Bose and another, (1964)1 SCR 639 which deals with the scope of Section 202 Cr.P.C. are not attracted.

I hereby accept the petition and quash the complaint and all consequent proceedings against both the petitioners. The petition stands disposed of.