Crl.M.C. 2306/2003 Page 1 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. 2306/2003 Date of Reserve: 14.09.2009 Date of Decision: 06.10.2009 GOPALCHAND KHANDELWAL ..... Petitioner Through: Mr. R.M. Bagai, Advocate Versus D.R.I. ..... Respondent Through: Mr. Satish Aggarwala, Advocate CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed Yes to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG,J 1. This judgment shall dispose of a petition filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India by the petitioner, who has been asked to face trial in a complaint case filed by the respondents under Section 135 (1)(b) of the Customs Act 1962 on the allegations that he along with other co-accused persons was also involved in the smuggling of gold as stated by the co-accused, Mahavir Prasad Khandelwal in his statement recorded under Section 108 of the Customs Act. It is stated that there is no other evidence collected by the respondents to substantiate the allegations against the petitioner of his involvement in this case. As far as the statement made by co-accused under Section 108 of the Customs Act is Crl.M.C. 2306/2003 Page 2 of 20 concerned, it is submitted that the said statement was involuntary and was soon retracted by the co-accused. In fact, the said co-accused has also relied upon the medical report to substantiate his plea that the statement was extracted under duress. 2. The ACMM framed charges under Section 135 (1)(b) of the Customs Act on 15.10.2001 against the petitioner even though initially he was also sought to be tried under Section 85(1) of the Gold (Control) Act, 1968 and Section 120-B IPC. The aforesaid order of framing charges was challenged by the petitioner by way of a revision petition before an Additional Sessions Judge under Section 397 Cr.P.C. but the same has been dismissed vide order dated 28.10.2002 and it is against the said order, the present petition has been filed. 3. The petitioner to support his petition and to assail the order of the Addl. Sessions Judge has submitted that the impugned order suffers from material infirmity and is liable to be set aside, inter alia, on the following grounds: a. Ld. ASJ failed to take into consideration the case of the petitioner properly because his case was entirely different from that of other three accused. That there was neither any incriminating statement of petitioner under Sec.108 of Customs Act despite the fact that petitioner was available and willing to give a statement. Crl.M.C. 2306/2003 Page 3 of 20 b. There is neither any recovery of gold from the person nor from the residence of the petitioner. The Scooter from which the alleged recovery was made also not belongs to the petitioner. That petitioner has been victimized only because he is the brother of the Mahavir Prasad Khandelwal. c. The involuntary statements made by all the three accused persons were soon retracted when they were produced before the ACMM. Neither the ACMM nor the Sessions judge has look into the medical examination reports of the accused persons where it is clearly written „the multiple injuries within 48-64 hours‟ before they brought to jail. d. The petitioner has also suffered incarnation on account of an order of detention passed under section 3(1) of the COFEPOSA by the Central Government at the behest of the officials of the respondent. It is pertinent to submit that the advisory board comprising of three sitting judges gave the opinion that no sufficient cause for detention of petitioner and the detention orders were revoked by the Central Government on the advice of the board and therefore, acquits him of those charges. e. that the trial court proceeded to frame the charges on the basis of an assumption that the statement of the petitioner was also recorded as observed in paragraph 16 of the order framing charge, which is reproduced for the sake of reference:- “16. Accused Mahavir Prasad and Gopal Chand both in their statement stated that they are living in the house from where the scooter was recovered and from the dicky of that Crl.M.C. 2306/2003 Page 4 of 20 scooter the recovery has been effected. It is correct that complainant has not proved the ownership of scooter in question. However it is a common experience in this part of country that people are in a habit of purchasing vehicle without getting the same transferred in their name. In these circumstances non proving of ownership of scooter in question is not fatal to the case of the complainant.” This is despite the fact that admittedly the statement of the present petitioner was not recorded under Section 108 of the Customs Act. f. that the Additional Sessions Judge while deciding the revision ignored the aforesaid facts which was specifically pleaded and blindly accepted the arguments of learned counsel for the respondent that it was only inadvertent observation and makes no difference. The observation made in paragraph Nos. 5 and 6 of the order of the Additional Sessions Judge are reproduced hereunder:- 5. Next ground pleaded in the revision is that ld. ACMM in para 16 of his order observed that accused Mahavir Prasad and Gopal Chand both in their statement u/s 108 Customs Act have stated that they were living in the house from where scooter was recovered and contraband gold biscuits were taken out of dicky of that scooter. It is argued that in fact statement of Gopal Chand Khandelwal had never been recorded u/s 108 Customs Act. Counsel argued that accused Gopal Chand Khandelwal was being prosecuted only on the basis of confessional statement given by co-accused Mahavir Prasad Khandelwal and statement of other co-accused namely Dharam Pal and Surinder Khanna. 6. On the other hand counsel Sh. Satish Aggarwal argued that the impugned order makes inadvertent observations that statement of accused Gopal Chand Crl.M.C. 2306/2003 Page 5 of 20 Khandelwal had also been recorded u/s 108 Customs Act, then that is not a serious matter to call for an order of discharge once other evidence and material is there on record to put this accused also on trial for the offence he has been charged with. 4. The petitioner has relied upon the following judgments: i. Chonampara Chellappan Vs. state of Kerala AIR 1979 SC 1761 ii. Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 iii. Ravindran @ John Vs. The Superintendent of Customs JT 2007 (7) SC 47 iv. Pradeep Kumar Vs. State 1994 RLR 117 5. On the other hand, the respondents while opposing the petition have submitted that the statement of co-accused person recorded by the D.R.I. officials under Section 108 of the Customs Act is admissible in evidence against the petitioner and as such that evidence can be used against the petitioner. It is submitted that the statement made by the co-accused person directly implicate the petitioner in respect of the crime for which the co- accused persons has been charged. 6. It is also the case of the respondents that on information received by the officers of the Directorate of Revenue Intelligence, New Delhi on 14.10.1988 they searched the residential premises of accused no. 1, Mahavir Prasad Khandelwal, situated at 199/9, Than Singh Nagar, Anand Parbat, New Delhi 110005 in the presence of two independent witnesses. During the search of the premises Mahavir Prasad (accused no. 1) was present in the above-said premises, which was conducted on the basis of a search warrant Crl.M.C. 2306/2003 Page 6 of 20 issued under Section 105 of the Customs Act, 1962. It is also the case of the DRI that as a result of search one ”ECHOLAC” black color brief case was recovered from the premises and further on opening it Indian currency amounting to Rs.3,45,660 was recovered. One Sky blue color Bajaj Chetak Scooter bearing registration number. DDK-5692 which Accused no. 1 stated that he had just bought was found parked within the above said premises. The officers of the DRI further searched the Dickies of the scooter, from the front dickey of the said scooter one green color canvas bag having yellow strips was recovered. In this canvas bag some dirty and soiled cloth belts were found to contain foreign marked gold biscuits numbering 325 of total 10 tolas each and in all weighing 37.911gms. and valued at Rs.1,21,31,520/-. The gold was then seized in the reasonable belief that the same was smuggled and was therefore, liable to confiscation under the provisions of the Customs Act and the Gold Control Act, 1968. The Indian Currency was seized in the belief that the same was the sale proceeds of smuggled gold and was therefore liable to confiscation under the provisions of Customs Act, 1962. 7. It is also the case of DRI officials that the statement of said Mahavir Prasad Khandelwal (accused no. 1) was recorded under section 108 of the Customs Act on the same day on the basis of which petitioner was summoned. An English translation of the said statement filed along with reply by the respondents is as under: “that he is residing at the first floor of the house no. 199/9 than Singh Nagar, Ananad parbat, New Delhi -5 alongwith his elder brother Gopal Chand Kahandelwal (petitioner Crl.M.C. 2306/2003 Page 7 of 20 herein) that his telephone number is 5712353, that his house was searched the officers of the DRI, New Delhi on 14.10.1988, that Indian currency amounting to Rs. 3,45,660/- was recovered from his house , and 325 foreign marked gold biscuits of 10 tolas each were recovered form the front dickey of blue Bajaj Chetak Scooter DDK-5692 which was parked inside his house , that he did not know the owner of the scooters that this scooter was given to him that day at haldipur village by a person named Shri Surinder Khanna(accused no.3) who also told him that its fron dickey contained 325 foreign marked gold Biscuits that the officers seized the Indian Currrency and the gold buiscuits alongwith the scooter DDK -5692 as detailed in Panchnama dated 14.10.1988, that the Indian currency amounting to Rs. 3,45,660/- seized from his house was the balance sale proceeds of the foreign marked gold sold by him prior to 14.10.1988 and was given to him on 14.10.1988 by one Ramesh at his residence. He further admitted that he and his brother Gopal (accused No. 4) used to receive smuggled gold from one Dharam Pal Narang (accused No.2) (whom he later on identified and gave his address as BH-36) (East) Shalimar Bagh, Delhi) with whom he and his brother Gopal (accused No.4) had developed acquaintance about one and half year back and who had suggested to him and his brother to sell the smuggled gold sent to him (Dharampal) (accused No.2) by one Dubai based smuggler „Ashraf‟ who was known to Dharam Pal and the price received after selling the smuggled gold was also to be sent to Dubai through Hawala. Both of them agreed on partnership basis to Dharam Pal‟s offer after finding the waysand means to sell the smuggled gold as he has a shop at 1164, Kucha Mahajini, Chandini Chowk Delhi, with Tel. Nos. 2528308 and 232411. After that he received small quantities of gold through Dharam Pal which were sold by both of them and the sale proceds were sent to Dubai on the address given by Dharam Pal. Then for a long time his business of contraband gold remained in abeyance and again started in Sept., 1988. This time he used to take delivery of smuggled gold near Haiderpur village from Shri Surinder Khanna @ Ustad, (accused No.3) Dharam Pal Narang’s man, that he and his brother Gopal (accused No.4) used to sell this gold in the market and send the sale proceeds to Dubai at the address given by Dharam Pal Narang, (accused No.2) that money was sent to Dubai through Hawala Agent whose names were given to both of them by Narang. In Sept., 1988 he received 1500 foreign marked gold biscuits of 10 tolas each from Narang and sold the same in the market, that in October, 1988 upto 14.10.1988 he had received four deliveries of smuggled gold consisting of 447, 279, 276 and 325 gold biscuits from Dharam Pal Narang, that except the last 325 gold biscuits he had sold all the gold biscuits in the market, that they two brothers and Dharam Pal Narang (accused Crl.M.C. 2306/2003 Page 8 of 20 No.2) received a commission of Rs. 100/- per gold biscuit which they used to distribute among themselves, though Narang‟s share was a little more.” 8. However, the perusal of the original statement does not show that the present petitioner was having any knowledge or involvement about the currency or gold recovered from the house or dickey of scooter of accused no.1. The statement only narrates the alleged previous transactions. 9. The respondents have also submitted that even the petitioner was summoned under section 108 of the Customs Act, on 26.10.88 to appear before the Asstt. Director, DRI on 7.11.1988 at 11:00 am but he did not appear. However, it is not a case where he has been tried for non-appearing as a witness. 10. The respondents have also relied upon the following judgments: a. Naresh J. Sukhwani Vs. UOI b. UOI and Anr. Vs. Prakash Chand Lunia and Anr. c. Yogendra rai Vs. NCB d. OM Praksh bakshi Vs. State. e. Paramjit Singh Vs. Commr. Of Customs & Ors. 11. I have gone through the record of the case and find that the only evidence relied upon by the respondents against the petitioner comprises of the statement made by co-accused Mahavir prasad Khandelwal the brother of the accused, which statement has been retracted by Shri Mahavir prasad Khandelwal as per the retraction letter dated 18.10.1988. In the said letter he has stated as under: Crl.M.C. 2306/2003 Page 9 of 20 Sir, It is most respectfully submitted as under: 1. That I was produced in the court of duty Magistrate on 16.10.1988. 2. That I have been falsely implicated by the officers of D.R.I. 3. That I have no connection with the scooter from which gold was allegedly recovered nor I had any connection with the gold seized but the offices tortured me to write involuntary statement. They also forced me to implicate my brother Gopal and other persons who have no connection with me. 4. That I hereby retract the statement made under pressure. 5. That I am innocent and I have never before come to the adverse notice of my law enforcing authority. 6. That the statements produced by the D.R.I. officers may not be relied. 7. That the Indian currency seized is all accountable. It is prayed accordingly. Accused/Applicant (Mahavir Parshad S/o Shri Govind Ram Khandelwal) 12. It is also appropriate to take note of the medical report of accused Mahavir Prasad Khandelwal, which reads as under: Medical examination of accused Mahavir Prasad lodged in central Jail Tihar as per the Court order of Sh. Kamlesh Kumar, Duty Magistrate, N.D. Date of examination 17.10.88 Patient name Mahavir Prasad 30 years Male M.I: scar mark on Right elbow. Time of exam 9.45 AM B.P. 140/90 mm Hg Pulse 84/mt. Following external injuries were noted on the body of accused Mahavir Prasad Injuries i. at interseafular region ii. Seven linear abrasion with seab varing person 8” to 10” on the whole back iii. Contusion 1” X Y2” below Left eye (puple colour) iv. Contusion 6” X 6” on both hips (purple colour) Besides this C/o pain in all over body and severe Crl.M.C. 2306/2003 Page 10 of 20 pain in left knee joint. Impression Injuries no. 1, 2, 3, 4 have been caused by blunt object, simple in nature, duration of injury between 48 to 72 hours approximaly. To reach the court of ACMM New Delhi Through Supdt. Central Jail-1 Medical Officer Central Jail Tihar New Delhi 13. It is not disputed by the respondents that nothing has been recovered either at the instance of the petitioner or from his person or from his premises where he is residing separately other than his brother i.e. premises no. CU/11 Pitam Pura, Delhi. 14. As observed above, the ACMM in the present case has proceeded on a wrong presumption that the statement of the present petitioner has been recorded under Section 108 of the Customs Act which fact has also not been looked into by the Ld. ASJ while dealing with the revision petition who simply dittoed the order passed by ACMM. That neither the ACMM while framing the charges nor the Ld. ASJ while dealing with the revision petition dealt with the medical examination report of Mahavir Khandelwal (accused no.1) given by the Govt. Doctors which says that the injuries found on the person of Mahavir within 48 to 72 hours before he has been brought to the Central Jail Tihar which, prima facie, support the version of petitioner that the statement has been recorded involuntary. 15. The legal position with regard to the admissibility of the statement of co-accused persons recorded under Section 108 of the Customs Act and Crl.M.C. 2306/2003 Page 11 of 20 under Section 67 of the NDPS Act is well settled. The Hon‟ble Supreme Court has taken note of the aforesaid provisions in the case of UOI & Ors. Vs. Bal Mukund JT 2009 (5) SC 45 and has been pleased to observe: 19. The prosecution case principally hinges on the purported confessions made by the respondents. The learned Special Judge failed and/ or neglected to notice that the respondent No. 3 had retracted his confession at the earliest possible opportunity. He could have, therefore, been convicted only if independent corroboration thereof was available. Admittedly, no contraband was found from his possession. He was prosecuted for entering into a conspiracy in regard to commission of the offences under Section 8/18 of the Act with the respondent Nos. 1 and 2. Such conspiracy was not proved by the prosecution. No evidence whatsoever was brought on record in that behalf. The High Court, in our opinion, therefore, rightly accepted the contention of the said respondent, stating: 12. As far as appellant Amritlal is concerned, he was apprehended only on the basis of the statement made by the appellants Bal Mukund and Basantilal. The only evidence available against him is his confessional statement recorded under Section 67 of the Act. M.R. Narvale (PW-7) has stated in his statement that statement of Amritlal Anjana Ex. P/24 was recorded by him. The contents of Ex. P/24 have not been duly proved by the prosecution. The so called confession has been retracted by the appellant Amritlal. He cannot be convicted only on the basis of Ex. P/24. Even the confessional statements of co-accused cannot form the basis of his conviction. His conviction is not based on the evidence and cannot be sustained. 20. For recording his conviction, confession of the respondent Nos. 1 and 2 had been taken into consideration. 21. Mr. B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co- accused. Strong reliance in this behalf has been placed on Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 wherein it was held: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to Crl.M.C. 2306/2003 Page 12 of 20 connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest. 23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru AIR 2005 SC 3820, this Court has laid down the law in the following terms: 38. The use of retracted confession against the co- accused however stands on a different footing from the use of such confession against the maker. To come to grips with the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to "lend assurance to other evidence against a co-accused. The legal position was then stated thus: (SCR p. 530) Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But Crl.M.C. 2306/2003 Page 13 of 20 cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. 39. The crucial expression used in Section 30 is "the Court may take into consideration such confession" (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co- accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) The court may take the confession into consideration and thereby, no doubt, makes its evidence on which the court may act; but the section does not say that the confession amounts to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can