TaxTMI 
TaxTMI 
2026 (1) TMI 223
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....s legs, his bag was examined and personal search was conducted, after serving him with a Notice under Section 102 of the Customs Act, 1962. During his personal search, FICNs to the tune of Rs. 6,01,500/- in dominations of Rs. 1,000/- and Rs. 500/-, which were found concealed in the socks of both of his legs, was recovered. The Case under Section 120B read with Section 489-B & 489-C Indian Penal Code, 1860 (hereinafter referred to as "IPC"), was registered on 13.09.2012, vide RC No.220/2012/E0019/EOU-V/EO-II. 3. The genuineness of the recovered currency notes was confirmed by taking accused and the money to the counter of SBI located at the arrival hall of IGI Airport, New Delhi. The recovered Indian currency notes were put through the machine, which rejected all the notes, which prima facie confirmed that the recovered notes were fake. The FICNs were seized by the Customs Officers and a Panchnama dated 11/12.09.2012 was prepared on the spot, which was signed by the independent witnesses. 4. The voluntary Statement of the Respondent under Section 108 of the Customs Act, 1962, was recorded wherein he disclosed that while leaving for Bangkok from India, he had met one person, Ku....
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....89-C of IPC, to which the Respondent pleaded not guilty. 10. The Prosecution, in support of its case, examined 11 prosecution witnesses. These were PW-1, Sh. Praduman Kumar Yadav, who was posted at IGI Airport as Superintendent, Customs, and deposed about the interception of the accused. PW-2, Sh. Prithish Chakrovorty, who was posted as Inspector (Air Customs Officer) at IGI Airport, deposed about the currency recovered from the accused. PW-3, Sh. Pradeep Kumar, is an independent panch witness during the recovery and seizure proceedings conducted by the Customs authorities from the accused. PW-4, Sh. I.P. Singh, who was posted as Senior Manager, Punjab National Bank, deposed regarding the proceedings dated 22.12.2012 conducted at the CBI Office for recounting. PW-5, Sh. Rohit Kumar Gupta, is a formal witness who produced the relevant file. PW-6, Sh. Nirmal Das, who was posted as Junior Assistant in the SDM Office, Nawanshahr, Punjab, deposed regarding the search proceedings conducted at the premises of Kulwant Rai and Kuldeep Singh. PW-7, Sh. Balbir Singh, is an independent panch witness during the recovery proceedings conducted by the Customs authorities. PW-8, Sh. Sandeep Kuma....
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....counting of notes, had been mentioned in the Chargesheet itself. Furthermore, the Statement of the Respondent under Section 108 of the Customs Act, 1962 wherein he admitted his guilt, has also not been considered. 18. It is further submitted that PW9-Sh. D.K. Shrivastava, official from BNP Dewas had deposed that the sealed packets were received in the office. On de-sealing the Packets, he noted the discrepancy in the number of FICNs and he re-sealed the packet and sent them back to CBI Office. However, his testimony has not been appreciated correctly. Ld. CMM Court on 15.12.2012 permitted the CBI to open, count and re-seal the said packet. This packet was re-opened in the presence of PW11 Sh. Mohit Kumar, PW2 Sh. Prithish Chakravorty, PW3 Sh. Pradeep Kumar and PW7 Sh. Balbir Sharma and PW4 Sh. IP Singh. 19. It has not been appreciated by the Ld. ASJ that the discrepancy in regard to number of total currency notes, was mentioned and explained in the Chargesheet. It has been erroneously held by Ld. ASJ that the currency notes were taken out, changed or added to the packet containing the case property. It is on record that the case property was handed over to CBI in sealed conta....
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....dent man's estimate as to the probabilities of the case. 25. The Examination Report dated 06.06.2012 of the Expert of the BNP, Dewas, M.P who concluded that the seized notes were counterfeit, has also not been considered. The mens rea of the Respondent can be easily inferred from the nature of possession of FICNs, his non-declaration at the disembarkation point as well as the negative reply on material points. The Judgment dated 28.01.2017 is, therefore, bad in law, which may be set aside and the Respondent be convicted and punished in accordance with law. 26. The Reply has been filed on behalf of the Respondent who has denied all the averments made in the Appeal. It is contended that there is no infirmity in the impugned judgement and the Appeal is liable to be dismissed. 27. A Rejoinder had been filed by the CBI in which they reiterated the assertions as made in the Appeal. Submissions heard and record perused. 28. Briefly stated, on 11.09.2012 as the Respondent, Kulwant Rai disembarked from a flight from Bangkok to Delhi at IGI Airport, he was apprehended by the Custom Officers and 301 notes of 100 denominations and 601 notes of Rs. 500/- denomination, having a to....
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....x. PW-1/A, was recorded, wherein the respondent admitted carrying the FICNs. 33. PW8 Sandeep Kumar Rawal, who was posted at IGI Airport as Deputy Commissioner (Preventive) Customs, deposed that he had the role of monitoring the investigations conducted by Inspectors and Superintendents of Department of Customs. He came to know about this case on 12.09.2012 when the file was submitted to him by the Superintendent and it came to his knowledge that passenger Respondent Kulwant Rai who was travelling in Flight TG315 from Bangkok was intercepted by the customs officers on duty in Green Channel and he was found in possession of FICNs amounting to Rs. 601500/-. The case was forwarded to CBI vide Complaint dated 13.09.2012, Ex.PW8/A. Later, some documents were also forwarded to CBI vide letter dated 18.09.2012 Ex.PW8/B. 34. PW11 Mohit Kumar, Inspector, who was posted as Sub Inspector, CBI in the year 2012, deposed that the instant FIR was recorded on the basis of written Complaint of Shri Sandeep Rawal and he had arrested the Respondent on 15.09.2012 vide Arrest Memo Ex.PW11/A. 35. The ocular testimony of these witnesses is fully corroborated by the Statement under Section 108 Cus....
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....rom the Bank officials, who checked the notes. He gave the name and address of Kuldeep Singh in Banga, Punjab. 37. As per the case of the Prosecution, Kuldeep Singh was interrogated but was not arrested as no incriminating evidence was found from him. 38. Kuldeep Singh was earlier doing business with Kulwant Singh. He used to carry his goods in commercial quantity to Thailand, for which he used to get Rs. 10,000/- per month as salary. He has been associated Kuldeep Singh with since April, 2012. He further stated that Kuldeep Singh had handed over six bundles of notes of Rs. 500 denomination and three bundles of Rs. 1000 denomination and advised him to take the currency to India and promised to pay him Rs.20,000/- on his arrival. He also gave him a single note of Rs. 1000/- and Rs. 500/- denomination, for his onward expenses to Punjab. 39. This raises the evidentiary value of statement of the Respondent recorded under Section 108 Customs Act. Section 108 Customs Act gives power to a Custom Officer to issue summons to a person to give evidence and to produce documents. The Notice under Section 102 Customs Act was given to the Respondent, after which his statement u....
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....cerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice. It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards. Certainly a statement recorded under duress or coercion cannot be used against the person making the statement. It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers." 43. The Apex Court has held that a statement made under Section 108 of the Customs Act before a Customs Officer is admissible in evidence and can be used against the maker. The object of Section 108(b) is to elicit the truth in such cases. While recording such a statement, the Customs Officer is required to act fairly and judiciously, ensuring all procedural safeguards, so that the statement meets the minimum judicial standards and principles of natural justice. However, a statement recorded under duress or coercion cannot be relied upon. 44. In the present case, the statement Under S.108 ....
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....could be elicited in the cross-examination of any of the witnesses. 49. The main controversy which emerged in the Prosecution evidence was a mismatch in total number of recovered FICNs and also some discrepancy in the serial number of a few Notes. The significant fact which emerges is that while preparing the Panchnama, the List of serial number of the Notes so recovered, was prepared which was annexed along with the Panchnama, by PW2 Pritish Chakravarty to which there is no challenge. As per the testimony of PW2 Pritish Chakravarty, the packet containing the Notes was sealed with the Customs seal No.'6' and was thereafter, forwarded to BNP, Dewas. 50. The next material witness is PW9 Sh. D.K. Srivastava Technical Officer, Bank Press Note, Dewas, M.P. who was an Expert in identification of FICN. 51. He deposed that he received a sealed packet, duly sealed bearing facsimile seal impression Seal No.'6' of Customs official, vide Letter dated 23.11.2012 Ex.PW9/A from the then SP, CBI forwarded through General Manager, Bank Press Note, M.P., for examination of the suspected FICNs. However, on counting the notes, he found some discrepancy in total number and serial number of FIC....
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.... testimony of PW2 Pritish Chakravarty and PW9 Sh. D.K. Srivastava when read together, is that the case property had been sealed on the spot with the Custom Seal No.'6' and the seal was found to be intact on the packet, when received in Bank Press Note, Dewas, M.P. It clearly reflects that there was no tampering with the packet. 55. PW11 Mohit Kumar Inspector, CBI who in the year 2012 was posted as Sub Inspector, CBI deposed that the Bank Note Press letter dated 24.11.2012, along with the case property, was received in the CBI office. An Application was filed by the CBI for de-sealing the case property for the purpose of counting. However, since the letter Ex.PW9/B did not contain any information about the status of seal at the time of receiving the case property by them and returning it, the Court directed the CBI to seek clarification from the Bank Note Press, Dewas. 56. On official request, the Bank Note Press, Dewas vide its official Letter dated 08.12.2012 Ex.PW9/D clarified that the case property was received with seal intact and that description of the Seal on the case property matched with the specimen seal of Customs Authority. Further, the official seal of Bank Note ....
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.... from the Respondent were found to be counterfeit, in terms of Report Bank Note Press, Dewas Ex.PW9/E. 63. Another significant aspect which emerges is that the serial number of all the Notes had been noted initially by the Customs Officer along with the Panchnama Ex.PW2/1 and the currency notes serial numbers had also been checked by the Bank Note Press, Dewas wherein certain discrepancies were noted. 64. The only ground on which the Ld. ASJ has given the benefit to the Respondent is on account of discrepancy in the counting of the notes and in some serial numbers. It is pertinent to note that even though there was one note short in the bundle of Rs. 500/- note denomination and in Rs. 1000/- note respectively, but it cannot be overlooked that it does not negate the recovery of the remaining 600 notes of Rs. 500/- and 300 notes of Rs. 1000/-. 65. It is also pertinent to significant to note that the explanation given for discrepancy in the serial numbers of two notes in the series of Rs. 500/- is partly explainable from the fact there was one note number had been repeated twice i.e., 7BK 144652 (500 Denomination). 66. The explanation given on behalf of the Prosecution tha....