AJAY RAJPAL Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) By invoking the writ jurisdiction under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (hereinafter `the Code'), the petitioner has been seeking quashing of a complaint dated 23.12.1997 filed under Sections 135(1)(a) and (1)(b) of the Customs Act 1962 (hereinafter `the Act') against him and for the consequential relief of the return of the goods of the petitioner seized as per seizure memo dated 24.10.1997 and the release of a sum of Rs.2 lacs cash seized from the house of the petitioner vide seizure memo dated 24.10.1997.

(2.) The facts giving rise to the present petition, shortly stated, are that the petitioner has been running his business of audio cassettes/CDs distribution of reputed companies for the last about 19 years in Chandni Chowk, Delhi in the name of Music Mahal; that the petitioner never indulged in any illegal business or smuggled goods; that on 23.10.1997, customs officers intercepted one Maruti car and a tempo and apprehended one Vipin Kalra and Sandeep Bhaskar with a consignment of 25000 complete watch movements made in Japan; that the said persons had alleged to have removed the said watch movements from the air cargo in a clandestine manner and without payment of customs duty thereon; that the said watch movements were taken into possession by the officers of the customs; that the statements of Vipin Kalra and Sandeep Bhaskar were recorded under Section 108 of the Act wherein they have falsely, wrongly and malafidely implicated the petitioner by stating that the petitioner had instructed them on mobile telephone to get the said consignment cleared from the air cargo; that these statements of accused Vipin Kalra and Sandeep Bhaskar are totally wrong and illegal; that on the basis of the statements of Vipin Kalra and Sandeep Bhaskar, the customs officers raided the business and residential premises of the petitioner on 24.10.1997 and have illegally seized the cash worth Rs.1,25,000.00 and the electronics goods lying in the shop worth Rs.3,41,190.00 and a sum of Rs.2 lacs from the residence of the petitioner; that the customs officers have failed to seize/ recover any incriminating documents against the petitioner, which may connect the petitioner, with the offence committed by aforesaid Vipin Kalra and Sandeep Bhaskar; that the petitioner has not been dealing in watch movements and the petitioner had shown the documents qua the seized electronic goods and also the details of the amount recovered from the shop and the residence stating that the goods lying in his shop are lawful as he has already paid the required customs duty thereon; that the amount of Rs.2 lacs cash recovered from the residence was withdrawn from Oriental Bank of Commerce, Kingsway Camp, Delhi on 22.10.1997 against a chit of Sisganj Chit & Finance Company and the documents pertaining to the said chit fund and the bank statement were duly shown to the customs officer; that the petitioner was illegally arrested only on the basis of the illegal disclosure statements of other accused persons namely Vipin Kalra and Sandeep Bhaskar; that there is absolutely no evidence to even remotely connect the petitioner with the alleged consignment; that the petitioner in his statement has denied all the allegations levelled against him and stated in his statement that he has no connection with the said consignment which was alleged to have been consigned in the name of M/s.Umesh Book Service, a concern of Vipin Kalra; that said Vipin Kalra was teaching Tikando (a sort of martial art) to his daughter and the petitioner had given a loan of Rs.10,000.00 to Vipin Kalra and thereafter one Sim Card was also arranged by the petitioner for Vipin Kalra from some of his friends on the request of Vipin Kalra and the petitioner has been asking Vipin Kalra time and again to pay the said sum of Rs.10,000.00 and Rs.3,000.00 for Sim Card but said Vipin Kalra has been avoiding the same on one pretext or the other but on hard insistence of the petitioner, Vipin Kalra became furious and threatened the petitioner to face consequences in case he ever dared to ask for the said sum of Rs.10,000.00 plus Rs.3,000.00 ; that it was due to the said incident that Vipin Kalra named the petitioner in his statement just to settle the score with the petitioner; that there is absolutely no evidence to connect the petitioner with the consignment of 25000 watch movements made in Japan which was intercepted by the customs officers on 23.10.1997.

(3.) In the complaint filed under Section 135(1)(a) and (1)(b) of the Act, it has been stated that the Commissioner of Customs, Air Cargo, Delhi has accorded sanction for the prosecution of the accused persons; that acting on the information regarding the modus operandi of illegal removal of goods from the Import Shed, Air Cargo, Near IGI Airport, New Delhi without payment of customs duty and without filing of Bill of Entry, the officers of Customs of Air Cargo, Preventive Unit, IGI Airport, New Delhi kept a surveillance on 23.10.1997 and intercepted one blue colour Maruti car bearing registration No.DL 4CG 1513 outside the exit gate of ACAAI Agents Cargo Terminal, Old CWC Building, Old Gurgaon Road, New Delhi in presence of two independent witnesses; that the said car was containing a khaki coloured corrugated carton having stickers of Air India Cargo bearing Airway Bill No.098 6685 3382 showing destination DEL and another sticker of KRM Freight Express Limited bearing House Airway Bill No.KRM 09960 showing destination DEL and from HKG and also having the markings as AI 313 dated 21.10.97/11913-098 6685 3382-H-09960/01 and on other side in the circle figure 517 was marked; that the occupants of the car introduced themselves as Vipin Kalra and Sandeep Bhaskar (accused No.1 and 2); that they were asked to produce the documents relating to the legal possession of the cartons; that the occupants of the car could not produce any document for legal possession of cartons; that they informed the Customs Officers that the carton was removed from the Import Shed of Air Cargo, Near IGI Airport Complex, New Delhi by concealing the carton with the packages of books; that the occupants of the car, the witnesses along with the blue coloured Maruti car containing the carton were escorted to New Customs House, Near IGI Airport, New Delhi; that the carton was opened and examined in presence of the witnesses, Vipin Kalra and Sandeep Bhaskar and found to contain 25000 boxes bearing labels of the following description and quantity, the details of which are as under:- <FRM>JUDGEMENT_5_DRJ47_1998Html1.htm</FRM>