Criminal Revision No. 871 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 871 of 2009 Date of Decision: 20.5.2009 Harvinder Singh and Another …Petitioners Versus Assistant Collector of Customs, Amritsar …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Vikram Chaudhri, Advocate for the petitioners. Mr. H.P.S. Ghuman, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Present revision petition has been filed by Harvinder Singh son of Karam Singh and Avtar Singh son of Jaswant Singh. They were tried in a complaint filed by the Customs Department under Section 135 of the Customs Act, 1962 (hereinafter referred to as “the Act”). The Chief Judicial Magistrate, Amritsar, being trial Court convicted them them for an offence under Section 135 of the Act and sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- each, in default whereof to further undergo rigorous imprisonment for three months each. The recovered currency of Criminal Revision No. 871 of 2009 2 Rs.13,56,000/- was confiscated under Section 113 of the Act. Aggrieved against their conviction and sentence, petitioners filed an appeal. The appeal was decided by the Court of Additional Sessions Judge, Amritsar, on 16.3.2009. The Appellate Court upheld their conviction but taking into consideration long pendency of the trial reduced the sentence awarded to the petitioners from three years to two years. Complaint in the present case was filed by the Assistant Collector, Customs Division, Amritsar. A BSF party consisting of M.S. Raghawa, Assistant Commandant, Devi Dutt, Driver, and other officials held a special naka at India-Pakistan Border and at a distance of about 300 meters of the Border, they apprehended Harvinder Singh with Indian currency notes of Rs.13,56,000/- . The BSF party also recovered three chits written in Urdu on exercise book paper from possession of Harvinder Singh which furnish details regarding the persons who indulge in smuggling of gold in the territory of India and exchange foreign currency with gold. On 29.8.1985, Avtar Singh was arrested. His statement was recorded and he was also put to trial. Two Courts below have noticed in the statements of witnesses who appeared in the trial and relying upon their testimony recorded finding of fact that both the petitioners are guilty of offence under Section 135 of the Act. Notice of motion was issued. Record of two Courts below was requisitioned. On the last date of hearing, counsel for the petitioners was made aware of the limitations of the revisional Court i.e. it cannot re- Criminal Revision No. 871 of 2009 3 appreciate and do re-appraisal of the evidence. Therefore, this Court can only, while exercising revisional jurisdiction, examine patent illegality or irregularity in the conduct of trial or regarding admissibility of the evidence. On the last date of hearing, counsel for the petitioners had raised an argument that after the Foreign Exchange Regulation Act, 1973, was repealed, petitioners could not be convicted by the trial Court. Counsel for the parties have taken time to examine the legal position. Mr. Vikram Chaudhri, Advocate, appearing for the petitioners, has very fairly stated today that this point has been dealt with by the Hon'ble Apex Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited & Others 2008(2) Recent Criminal Reports 38 and, therefore, counsel for the petitioners will not proceed with this argument as the Hon'ble Apex Court has decided this argument in favour of prosecution. Mr. Vikram Chaudhri, Advocate, has read testimony of PW.4 Gurdev Singh and has referred to cross-examination of the witness. Mr. Chaudhri has further stated that statement of Avtar Singh recorded by PW.4 Gurdev Singh is not admissible in evidence as the statement was recorded in Jail. Counsel has read the following portion of the judgment of the Appellate Court:- “...Merely that the statement of Avtar Singh Ex.PW.4/A was not attested by any official of the jail or the permission regarding recording of such statement was not obtained from the Court, does not in any way vitiate or effects the validity of these Criminal Revision No. 871 of 2009 4 statements and these facts alone are not sufficient to shake the testimony of PW4 Gurdev Singh”. This stray observation of the Appellate Court is against the record. PW.4 Gurdev Singh, in his cross-examination, has stated that accused Avtar Singh was apprehended by the party. PW.2 R.S. Multani has stated that Avtar Singh was arrested and Ex.PW.2/B is the jama- talashi memo with regard to the search of Avtar Singh accused which was attested by the witnesses and was signed by him. No suggestion was put to PW.2 R.S. Multani or to PW.4 Gurdev Singh that petitioner Avtar Singh was in jail. Rather the entire argument built, fall on ground as on 29.8.1985, an application was moved by PW.2 R.S. Multani in the Court of Chief Judicial Magistrate, Amritsar. The application is part of the record. In the application, it has been specifically stated that Avtar Singh voluntarily tendered statement on 29.8.1985 he confessed that seized currency belongs to his father, brother and himself. Thereafter, Avtar Singh was placed under arrest at 1300 hours on 29.8.1985. Thereafter, on same day, Judicial Magistrate Ist Class had remanded him to judicial custody. Therefore, this observation of the Appellate Court is against the record. Similarly, in para 18 of the judgment of trial Court an argument was advanced that statement of Avtar Singh was recorded when he was in judicial custody, neither the statement was attested by any official of the jail nor any permission was taken. No document has been relied upon by the defence to show that Avtar Singh before his arrest which was effected on 29.8.1985 at 1300 hours was in judicial custody of any other case. Therefore, a stray line of cross- examination of officials who are not very conversant with day to day Criminal Revision No. 871 of 2009 5 affairs of the Court cannot be construed to be advantage of the accused/petitioner. Secondly, it has been stated that recovery memo was prepared by M.S. Raghawa, Assistant Commandant, BSF and Devi Dutt, Driver had participated in the recovery. It is stated that M.S. Raghawa, Assistant Commandant, has not been examined, therefore, adverse inference should be drawn against the prosecution as only Devi Dutt has appeared to prove the seizure and recovery. Another argument advanced by counsel for the petitioners, is, that R.L. Handa, in whose presence statement of Avtar Singh was recorded, has not been examined. Both the arguments are liable to be rejected. This Court is conscious of the fact that in 1985 recovery of Rs.13,56,000/- was effected by the BSF officials. Devi Dutt was one of the members of BSF party in whose presence recovery was effected. In 1985 such a huge amount could not be planted upon Harvinder Singh. Harvinder Singh has no explanation as to why he was roaming near the border with such a huge amount. Non-examination of R.L. Handa also is not fatal to the prosecution as the Criminal Courts do not insist for quantity of evidence but quality of evidence. Testimony of Devi Dutt is held to be reliable by two Courts below. Hence, the present petition is dismissed. Counsel for the petitioners has submitted that since the petitioners have suffered protracted trial, therefore, it should be considered as mitigating circumstance. The Appellate Court had also reduced the sentence of the petitioners from three years to two years. Criminal Revision No. 871 of 2009 6 Taking into consideration that this case is pending since 1985 and the petitioners have suffered protracted trial for about 24 years, sentence awarded upon the petitioners is reduced from two years to one and a half years. (Kanwaljit Singh Ahluwalia) Judge May 20, 2009 “DK”