RIPEN KUMAR Vs. DEPARTMENT OF CUSTOMS

JUDGEMENT

(1.) The petitioner has raised questions of law which have far reaching effect, namely:-

(2.) Briefly stated the facts giving rise to the above questions are, that on 28th Oc- tober, 1987 a complaint under Section 135 (1) (b) of the Customs Act, 1962 and Sec- tion 85 of the Gold (Control) Act, 1968 was filed against the present petitioner in the court of learned Additional Chief Metropolitan Magistrate (in short learned ACMM). On 23rd August, 1989 Inspector (Preventive) Customs (Public Witness-1) was called to the wit- ness box. His examination-in-chief was recorded. To some extent he was cross- rxamined also. On one of the date of the cross-examination, adjournment was sought by counsel for the present petitioner for confronting the witness with some documents. Adjournment was granted. But thereafter the said witness Shri V.P.S. Khurana (Public Witness- 1) was not produced inspite of number of opportunities having been given to the Cus- tom Department. At last on 21st November, 1994 warning was also administered. On that day last opportunity was given to the prosecution to produce Public Witness-1 for cross-ex- amination. Inspite of the warning that evidence would be closed the prosecution did not produce Public Witness-1 on the date fixed nor furnished any cogent reason for his non-ap- pearance. Even thereafter six more opportunities were afforded to the prosecution to adduce the said witness. But prosecution failed to do so. Hence when Public Witness-1 was not produced the learned ACMM Mrs. Sunita Gupta, Vide her order dated 23rd July, 1997 closed prosecution's pre-charge evidence as she found that neither any evidence was produced nor any explanation worth the name was tendered. The order of closure of pre-charge evidence was challenged by (he Customs Department i.e. by the prosecution by way of revision. The said, revision was heard by Shri N.K. Gupta, learned Additional Sessions Judge, who vide his order dated 29th July, 1998 dismissed the revision, inter alia, on the ground that right of speedy trial had been infringed. Case had been pending for the last ten years but the prosecution did not care to complete even the pre-charge evidence. The learned Additional Sessions Judge held that the order of Mrs. Sunita Gupta, learned ACMM was unimpeachable. After dismising the revision petition, he remanded the case to the Court of learned ACMM presided over by Mrs. Sangita Dhingra Sehgal. In the absence of any evidence the learned ACMM found that there was no incriminating case made out against the accused. Finding that the prosecution had failed to prove its case and, therefore, no reliance could be placed on the statement of the accused recorded under Section 108 of the Customs Act as the same was neither proved nor corroborated from any other material on record. She, therefore, discharged the accused i,e. the present petitioner. The order of discharge was assailed by the prosecution i.e. Custom Department (respondent herein) by way of revision petition. It was listed before Shri G.P. Thareja, Additional Sessions Judge, New Delhi who by the impugned order not only set aside the order of discharge but also the order of closure of pre-charge evidence passed by Mrs. Sunita Gupta, learned ACMM and the revisional order passed by his predecessor Shri N.K. Gupta, learned Additional Sessions Judge, New Delhi thereby upholding the order of learned ACMM. The said impugned order has been assailed by the petitioner on the grounds enumerated above.

(3.) Before we deal with the questions raised, it would be expedient to understand what does the word ''interlocutory order" stand for. Interpretation of the word "Interlocutory order" as appearing in Section 397(2) of the Code of Criminal Procedure (in short Cr.P.C.) came up before the Apex Court in the case of Amamath & Ors v..State of Haryana & Ors., (1978) 1 SCR 222: AIR 1977 SC 2185 while interpreting the interlocutory order" it observed that.