SUBHASH JAIN Vs. STATE

JUDGEMENT

(1.) This a revision petition challenging the order of the learned Additional Sessions Judge dated 2nd April, 2007 dismissing the appeal of the Petitioner, thus upholding the conviction of the Petitioner for offence punishable under Section 135(1)(b) of the Customs Act and a sentence of rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment for one month.

(2.) The case of the Respondent is that on 4th July, 1985, the baggages of two domestic passengers Shri Subhash Jain and Akbal Jain traveling on IC 139, bound for Madras, were examined at Delhi Airport by custom officers in the presence of two independent witnesses. Thereafter the Petitioner and Akbal Jain were brought down and were asked to identify their baggage. The baggage with baggage claim tag No. 038639 was identified by the Petitioner. The same was opened by the keys supplied by the Petitioner. On search, 5 gold bars wrapped in newspaper and thereafter by adhesive tape were recovered. An expert was called, who certified the purity of gold as 23 ct and the weight of the same to be 2413 gms. The Petitioner failed to produce any document to show legal import or possession of gold bars. Hence, they were seized under Section 110 of the Customs Act and Section 66 of the Gold Control Act. The Panchnama, Ex. PW3/A was drawn in this regard which was duly signed by the Petitioner. Thereafter, the Petitioner gave his statement in his own handwriting under Section 108 of the Customs Act vide Ex.P W1/A wherein it was inter-alia stated that he has a shop at Mori Gate where he was selling tractor parts which is closed for the last 10 months and since then he is doing in the sale and purchase of tractor parts by roaming around; since his business was not doing well he was in difficulty; when he met his old friend Sushil Jain who was studying with him in school and college, who has a shop of gold jewellery at Beadon Pura, Karol Bagh; around 8-10 days ago Sushil Jain told him that in case he had money he could fell him some work and told that if the gold of foreign origin was purchased and melted to make it Vitoor and taken to Madras, one can save Rs. 70 to Rs. 80/- per 10 gms. as a result of which per kilogram there is a profit of around Rs. 8000/- and the total expenditure for going to Madras including air fare comes to Rs. 3,000/-. On his saying, he gave Rs. 1,80,000/- to Sushil Jain on the 3rd July, 1985 when Akbal Jain, brother-in-law of Sushil Jain was also there; thereafter he and Sushil Jain went to Chandni Chowk and bought 9 gold biscuits of 10 tolas each with foreign marking; they then went to Karol Bagh and melted the same and were taking it to Madras.

(3.) After recording the statement of the Petitioner and his co-accused under Section 108 of the Customs Act, the Petitioner along with co-accused was arrested and produced before the learned ACMM on 5th July, 1985. Bail application was filed on behalf of the Petitioner on 6th July, 1985 which was not signed by the Petitioner but by his counsel wherein it was stated that he is a businessman dealing in tractor parts and has been falsely implicated in this case; the alleged recovery has already been effected and no further investigation is to be carried out; the statement has been coerced out of the Petitioner, which stands withdrawn.