Niranjan Kumar v. DRI, New Delhi

CORAM : HON’BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? YES YES YES V.K. SHALI, J.

1. This is a petition filed by the petitioner under Section 482 Cr.P.C. for issuing necessary directions to the respondent to place on record the file of COFEPOSA from the office of respondent no. 1.

2. Briefly stated the facts of the case are that a complaint under Section 135 of the Customs Act, 1962 was filed by the respondent against the petitioner which is presently pending in the Court of ACMM, New Delhi. The charges were directed to be framed against the petitioner for the said offence. The petitioner feeling aggrieved against the order directing the framing of the charge for the aforesaid section, filed a revision petition which Crl. M.C. No. 1770/2009 came to be listed in the Court of Ms. Ravinder Kaur, learned Additional Sessions Judge, Dwarka, New Delhi. In this revision petition the petitioner filed an application for production of COFEPOSA record before the Revisionist Court. The case of the petitioner was that he had not made any statement under Section 108 of the Customs Act, 1962. There was no recovery effected from him and despite this he was detained under COPEPOSA. The petitioner had appeared before the Advisory Board and it had quashed the detention order. The petitioner accordingly wanted the production of the record of the Advisory Board quashing the detention order under COPEPOSA. The learned Additional Sessions Judge called for the report on the application of the petitioner and observed as under: “Report has been Government of India, Ministry of Finance, COFEPOSA, that the required file is not available being 24 years old. received So the matter is adjourned for arguments on 22.05.2009.”

3. The petitioner has felt aggrieved by this order and has accordingly prayed that the High Court in exercise of its power under Section 482 Cr.P.C. may direct the respondent to place the said file before the learned Additional Sessions Judge or alternatively in case the record is not available the petitioner be permitted to file an affidavit stating his stand before the Revisionist Court. Crl. M.C. No. 1770/2009

4. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent. I have also gone through the record.

5. The learned counsel for the petitioner mainly contended that there was no recovery affected from the petitioner nor was his statement recorded under Section 108 of the Customs Act, 1962 and there being no incriminating evidence against the petitioner his detention order was quashed.

6. As against this, learned counsel respondent/department contended that under Section 8(e) of the COFEPOSA Act, 1974, the record of the COFEPOSA is a confidential record and the same cannot be produced before any Court as evidence.

7. The learned counsel for the respondent further contended that the second prayer of the petitioner that he be permitted to file an affidavit before the Revisionist Court in case the record is not available or not produced is also not tenable in law because the trial of the complaint case under Section 135 of the Customs Act, 1962 is not before the Revisionist Court. It is before the learned ACMM and whatever evidence the petitioner wants to adduce that he can do in his defence as and when he enters into same. Therefore, this prayer was also opposed.

8. I have carefully considered the respective submissions and gone through the record.

9. Section 8(e) of the COFEPOSA Act, 1974 reads as under : Crl. M.C. No. 1770/2009 “8(e) A person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential.”

10. A perusal of the above provision would show that except the opinion of the Advisory Board the rest of the things are confidential, and therefore, cannot be asked for the petitioner.

11. Therefore, I feel that the prayer of the petitioner is totally misconceived and cannot be granted under Section 482 Cr.P.C. There is no doubt that Section 482 Cr.P.C. recognizes the inherent powers of the Court to pass any order in the interest of justice or to prevent the abuse of process of law, but this is not an unfettered power and has to be based on certain sound reasoning. The petitioner is facing prosecution in a case under Section 135 of the Customs Act, 1962 and the petitioner is assumed to be innocent till it is proved to the contrary. So far as the proceedings before the Advisory Board are concerned by virtue of Section 8(e) the same are confidential except the opinion part given in the form of recommendation, and therefore the record sought by the petitioner cannot be directed to be provided by this Court in defiance of express provision of law. Therefore, this prayer is totally misconceived.

12. So far as the prayer of the petitioner to file an affidavit before the Revisionist Court is concerned, the said Court does not have to take evidence by way of an affidavit while deciding Crl. M.C. No. 1770/2009 the revision. The Revisionist Court has to see the legality, propriety and the correctness of the order of the Court below. The petitioner admittedly will get an opportunity to enter his defence in whatever manner he wants to do so. In view of the aforesaid facts and circumstances, the petition of the petitioner is totally misconceived and accordingly the same is dismissed. JULY 21, 2009 KP V.K. SHALI, J. Crl. M.C. No. 1770/2009