Decided on February 15,2016

Air Customs Officer Igi New Delhi Appellant
Pramod Kumar Dhamija Respondents


- (1.) Leave granted.
(2.) This appeal challenges the judgment and order dated 04.1.2011 passed by the High Court of Delhi at New Delhi in Crl. M.C. No.460 of 2009.
(3.) That the facts leading to the filing of this appeal are as under:- (A) On the basis of specific information, AIR Customs Officers (Preventive) at IGI Airport, New Delhi, on 09.07.1996 recovered and seized from meal trolleys of the aircraft of Lufthansa Airlines flight from Frankfurt to Delhi, 184 gold biscuits of ten tolas each, weighing 21454.400 grams valued at Rs.1,09,84,652/- concealed in the meal trolleys by two passengers, named Varyam Singh and Ranbir Singh. In their statements, Varyam Singh and Ranbeer Singh admitted the recovery and seizure of gold and named other persons involved in the incident. Varyam Singh, inter alia, disclosed the name of one Pramod Kumar i.e. the respondent herein who invested the money with him in the seized gold as well as the gold smuggled on earlier occasions. (B) Varyam Singh further stated that on 6.07.1996, Ranbeer Singh and he went to Dubai where the respondent delivered two packets of gold; that they went to Frankfurt; that in the flight from Frankfurt to Delhi with the help of Ranbeer Singh, he put both the packets in dry ice trays and as per prearrangement these packets were to be removed and delivered to him near Moti Bagh Gurudwara by the catering staff and that he had agreed to pay Rs. 50,000/- for this job to that person; that he had to hand over this gold to the respondent and in return he was to get Rs. 2,00,000/- out of the profit; that his share of investment in the gold seized on 9.7.1996 was Rs.Thirty Two lacs and that the balance was invested by the respondent. He admitted that earlier he had gone to Frankfurt via Dubai and come back to Delhi on six occasions and brought gold in the same manner. The authorities recorded the statements of all the persons involved. However, the statement of the respondent could not be recorded as inspite of numerous summons, he did not cooperate with the investigating authorities and remained in hiding. (C) The Commissioner of Customs, Delhi accorded sanction on 04.09.1996 for the prosecution of the respondent, Varyam Singh, Ranbeer Singh and four others and accordingly Complaint No. 66/1/96 was filed in the Court of ACMM, New Delhi. The respondent was declared "proclaimed offender" by the Ld. ACMM, New Delhi in the subject case. (D) In the meantime adjudicating proceedings were initiated pursuant to the show cause notice to the respondent. Order in Original No. 66/99 dated 30.09.1999 was passed by the Additional Commissioner of Customs, IGI Airport, New Delhi imposing penalty of Rs.15 lacs on the respondent. Following observations in the said order are noteworthy:- "In response to summons Shri Kanwar Bhan appeared before the Customs authorities and he in his further voluntary statement dated 30.8.1996 recorded under Section 108 of the Customs Act, 1962, stated that he was shown the record of details of call charges of Mobile phone number 9811028643 obtained from Essar Cell Phone mobile phone services, that on 21.04.1996 and 27.04.1996 telephone calls were made to telephone number 6914037; that he had been told that telephone number 6914037 belonged to Shri Varyam Singh and was his residence number and who had been arrested for smuggling of 184 gold biscuits. On being asked about that he stated that neither did he know any person by name of Shri Varyam Singh nor his telephone number on being asked about as to how telephone calls were made to telephone number 6914037 on 21.04.1996 three times and one time on 27.04.1996 from his mobile phone, he stated that he did not know the exact date but in the month of April, 1996, his younger brother Shri Pramod Kumar came to Delhi from Dubai as his mother was seriously ill, it might be possible that Shri Pramod Kumar had made four calls from his (Kanwar Bhan) mobile phone to telephone number 6914037 belonging to Shri Varyam Singh as he did not know Shri Varyam Singh and his telephone number." (E) The aforesaid order dated 30.09.1999 was carried in appeal and the Commissioner of Customs (Appeal) vide his order dated 25.01.2008 set aside the penalty imposed on the respondent. The Appellate Authority was of the view that there were two persons having same name i.e. Pramod Kumar, one in Dubai and the second being the respondent and that beyond the statement of the co-accused there was no material on record. During the course of this order it was observed as under:- "If the investment was made by Shri Pramod Kumar of Dubai, then it cannot be linked to the appellant. The department has not made Shri Pramod Kumar of Dubai a party in the case and nothing is on record to suggest that efforts were made to trace and identify Shri Pramod Kumar of Dubai and how the telephone number in Dubai i.e. 531228 is linked to the appellant. Thus there is only the lone statement of Shri Varyam Singh alleging the involvement of the appellant and is not corroborated by the statement of any other person or by any documentary evidence. On the other hand the claim of the appellant that he had left India on 06.09.1994 and since then he has not visited India again is corroborated by the statements of various persons tendered under Section 108 of the Customs Act 1962 and also by documentary evidence i.e. copies of his passports. No other person involved in the case has mentioned anything about the appellant. Thus the statement of Shri Varyam Singh who himself accepted as evidence whereas the claim of the appellant is supported by way of corroborative statements under Section 108 of the Customs Act 1962 and documentary evidence is acceptable as credible evidence in his favour. Moreover the appellant has not laid any claim on the impugned gold under seizure in this case. Keeping the above in view the finding of the Adjudicating Authority about the appellant are not fair, legal and based on facts and hence the penalty imposed on the appellant is hereby set aside." (F) Based on the observations and findings rendered in the aforesaid order dated 25.01.2008, a petition under Section 482 of the Criminal Procedure Code being Crl. M.C. No. 460 of 2009 was filed on behalf of the respondent in the High Court of Delhi at New Delhi. It is relevant to note that in the petition itself two addresses of the respondent were given, one of Dubai and the other of Delhi. The affidavit in support of the petition was filed by none other than Shri Kanwar Bhan, the brother of the respondent. It was submitted on behalf of the Department that the respondent had not joined investigation and as such the instant petition did not deserve any consideration and that there were not two Pramod Kumars but only one person having two addresses. The High Court by its judgment and order under appeal, allowed the petition and quashed Complaint No.66/1/96 pending before the Additional Chief Metropolitan Magistrate, New Delhi. It was observed by the High Court as under:- "The entire evidence sought to be relied upon by the respondent department against the petitioner is the same, that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, I consider that no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court.";

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