J.P. SINGH (AIR CUSTOM OFFICER) Vs. DHARAMPAL

JUDGEMENT

(1.) The Petitioner seeks leave to appeal against the order dated 28th July 2009 passed by the learned Additional Sessions Judge ('ASJ') in Criminal Appeal No. 1 of 2009, allowing the appeal filed by the Respondent against the judgment dated 19th March 2005 passed by the learned Additional Chief Metropolitan Magistrate ('ACMM') convicting him under Sections 132 and 135(i)(a) of the Customs Act, 1962 ('Act') and the order dated 24th March 2005 whereby he was sentenced to a period already undergone by him till then and the fine of Rs. 5,000 and in default, to undergo simple imprisonment ('SI') of one month for the offence under Section 132 of the Act and a fine of Rs. 10,000 and in default to undergo SI for two months for the offence under Section 135(i)(a) of the Act. The Respondent was himself an air customs officer employed as such from 19th January 1979 onwards. It is stated that, on the intervening night of 10th-11th September 1988, while checking passengers bound to Bangkok by Thai Airways Flight No. TG-915, the Respondent was noticed near the Customs Clearance Counter at the Indira Gandhi International Airport at New Delhi. He is stated to have told the officers that he had come to receive someone at the arrival hall and had incidentally come to the departure hall to meet his old colleagues. It is stated that the officers were surprised to find a boarding card in his hand and then to find him subsequently reporting for a security check at gate No. 10 as a passenger. When it was realised that his name had not been struck off the passengers' manifest with the Customs authorities, it was concluded that he had not reported for customs clearance. When asked, he replied in the affirmative that he was travelling as a passenger to Bangkok. His boarding card was stamped with the Customs stamp. When he was asked if he was carrying foreign/Indian currency, he replied that he had 500 US Dollars and US 20 Dollars purchased from the bank at the airport. He was brought to the Departure hall and a personal search was undertaken in the presence of two witnesses. They recovered foreign and Indian currencies equivalent to Rs. 96,664.45. Since he failed to produce any document for lawful export of the said currencies, they were seized under Section 110 of the Act. Charges were ultimately framed against the Respondent more than seven years later, on 27th October 1995 under Sections 132 and 135(i)(a) of the Act.

(2.) This is the second round of litigation. In the first round, by a judgment dated 22nd April 2002, the learned ACMM found the Respondent guilty of the offences under Sections 132 and 135(i)(a) of the Act and sentenced him to six months' rigorous imprisonment ('RI') with a fine of Rs. 5,000, and in default, to undergo SI for' months for the offence under Section 132 of the Act and three years' RI coupled with a fine of Rs. 5,000 and in default, to undergo 1 1/2 months' SI under Section 135(i)(a) of the Act. The Respondent appealed against the above judgment. The Sessions Court, by orders dated 21st September 2002, set aside the order of the learned ACMM and remanded the case to the learned ACMM to given an opportunity to the Respondent to adduce additional evidence.

(3.) In the second round of litigation, on remand, the Respondent examined one Mr. J.M. Sharma, a retired Assistant Commissioner, Customs as DW-1. The Respondent examined himself as DW-2.