Nabeel v. State of Kerala and Directorate of Revenue Intelligence

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **Crl.MC.No.4400 OF 2019(H)** (OR NO.12/2013 OF THE DIRECTORATE OF REVENUE INTELLIGENCE, REGIONAL UNIT, KOCHI IN ERNAKULAM DISTRICT) **PETITIONER/A3:** **NABEEL, AGED 36 YEARS S/O.ABDUL KHADER, THALASSERY, KANNUR DISTRICT.** **BY ADVS. SMT.DHANYA BABU SRI.S.SAMEER SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031. 2 THE DIRECTORATE OF REVENUE INTELLIGENCE, REPRESENTED BY THE SENIOR INTELLIGENCE OFFICER, REGIONAL UNIT, KOCHI- 25.** **R2 BY SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT** ## **OTHER PRESENT:** ## **R1 BY SRI.SANTHOSH PETER SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8.1.2020, THE COURT ON 14.09.2020 PASSED THE FOLLOWING:** Crl.MC 4400/2019 2 ## ASHOK MENON, J. ------------------------------------ ## Crl.MC No.4400 of 2019 ------------------------------------- Dated this the 14[th] day of September, 2020 ## O R D E R This is a petition filed under Section 482 Cr.P.C. The petitioner is the 3[rd] accused in O.R. No. 12/2013 of the Directorate of Revenue Intelligence (D.R.I), Regional Unit, Kochi, for allegedly committing an offence punishable under Section 135 of the Customs Act, 1962. The allegation against him is that along with the other accused namely Shahbaz and Abdul Lais, the petitioner/3[rd] accused used ladies as carriers for smuggling gold through various Airports in India. In the instant case, the smuggling gang had allegedly used two ladies named Rahila Cheerayi and Hiromasa Sebastian (accused Nos. 4 and 5, respectively) as mules to smuggle 39 KGs of gold worth Rs.11.7 Crl.MC 4400/2019 3 crores which includes the smuggling of 6 KGs of gold on 08/11/2013 through the Calicut Airport which was intercepted and seized by the D.R.I. 2. The petitioner has approached this Court under Section 482 of the Cr.P.C to quash the proceedings against him in the aforesaid OR No. 12/2013 stating that apart from the confession statements of accused numbers 1, 4 and 5 under Section 108 of the Customs Act, there is no other reliable evidence against the petitioner holding guilty of having committed the offence alleged. It is stated that there is not even a remote chance of convicting the petitioner in this case and hence prays that the entire proceedings may be quashed. 3. The prosecution allegation is that on 07/11/2013 the DRI allegedly got discreet information regarding A4 and A5 arriving at Calicut International Airport by Air India Express flight IX-344 from Dubai at 4:55 AM on 08/11/2013 carrying a large quantity of Crl.MC 4400/2019 4 gold concealed in their bodies and would be smuggling it without declaring to the Customs. Based on this information, the officers of the DRI conducted surveillance at the Airport and intercepted the aforesaid passengers while they were walking through the Green Channel. Personal search of the aforesaid passengers by the lady officers resulted in recovery and seizure of 3 gold bars weighing one kilogram each, from each of them, valued at Rs 1,83,72,000/in the domestic market, cleverly concealed in a long cloth wound around their waist as per Annexure-A1 mahazar. Accused Nos.4 and 5 gave Annexures-A3 and A2 statements under Section 108 of the Customs Act, respectively, admitting smuggling of gold seized from them. They also admitted of having smuggled gold in a similar fashion on previous occasions through Chennai and Cochin International Airports. The 5[th] accused stated that her roommate, the 4[th] accused, had introduced her to Mr.Shahbaz, the 1st accused. She was made to believe that they would get good Crl.MC 4400/2019 5 remuneration for smuggling of gold. Due to financial difficulties, she accepted the offer. She also understood that the petitioner was a business partner of the 1[st] accused. She admitted of having received good remuneration for smuggling gold on previous occasions. After reaching India, she had handed over the gold to the 4[th] accused for being handed over to the other accused. Remuneration to her was also paid through the 4[th] accused. 4. The 4[th] accused also gave a similar statement under Section 108 of the Customs Act revealing the fact that she was working as SAP Consultant and has been associated with MPC General Trading LLC, Dubai owned by the 1[st] accused and the petitioner. She admits of having acquaintance with the petitioner for the last 7 to 8 years. It was the petitioner who introduced her to the 1[st] accused as his partner in business. It is stated by her that she was being used as a carrier to smuggle gold into India. She admitted of having introduced her friend, the 5[th] accused, into Crl.MC 4400/2019 6 smuggling. She has also admitted of having smuggled gold on earlier occasions through the International Airports of Chennai and Cochin. She has admitted that accused Nos.1 to 3 were the main operators of the gang and has also identified their photographs and subscribe her signature on their photographs. The 4[th] accused has subsequently retracted her confession vide Annexure-A4 statement filed before the Additional Chief Judicial Magistrate (Economic Offences). She has stated that the DRI officers made her right and untrue statement of confession regarding her involvement in the smuggling of gold several times and also made her mention the names of accused 1 to 3 who were professionally associated with her, accusing them of being involved in the alleged activity of smuggling gold through carriers. She states that accused 1 to 3 are innocent, and persons engaged in running their own business in places like Dubai, Calicut, Saudi Arabia and Kuwait. She was produced before the Magistrate at his residence and cautioned Crl.MC 4400/2019 7 by the five DRI officials not to disclose anything to the Magistrate. After consulting her Advocate, she had retracted her confession statement. 5. The petitioner states that accused 1 to 3 were implicated solely on the basis of the statements given by accused Nos. 4 and 5. Annexure-A5 is the occurrence report filed before the Court. 6. The DRI also recorded Annexure-A6 statement of one P.V. Naushad, the caretaker of the flat at Alfa Serene, taken on lease by the petitioner. He was introduced to the petitioner by Louis Rodriguez, a film director, who revealed that the petitioner used to invest his money earned out of smuggling activities in the production of films. He has stated that the film star Idavela Babu used to frequently come to that flat for discussions regarding production of films. He also states that the 4[th] accused had resided there several times during the months of July and August. He was Crl.MC 4400/2019 8 also aware that the flat was being used for accommodating ladies engaged as carriers for smuggling of gold. Statements of Louis Rodriguez and Idavela Babu @ Ammanath Babuchandran were also recorded as Annexures-A7 and A8. Rodriguez has in his statement admitted that he knows the petitioner and has seen accused 4 and lady carriers in the flat of the petitioner. He knows that it is a person named Faisal who coordinates the activities of smugglers in Kerala and that the flat leased out by the petitioner was being used as a centre of smuggling activities in Kerala. In his statement, Idavela Babu has admitted of visiting the flat of the petitioner in Alfa Serene on 17-08-2013 and 25-08-2013 to meet the petitioner and Habeeb. 7. Habeeb Rahman was arrested by the Air Intelligence Unit on 23-08-2013 in connection with smuggling of 6 KGs of gold through the Chennai Airport. He gave Annexure-A9 statement admitting about the involvement of the petitioner in smuggling of Crl.MC 4400/2019 9 gold. He admits of having been to the flat of the petitioner at Alpha Sarene twice in connection with smuggling activities. He has also indicated that the petitioner had a major share in the gold that was seized from him. 8. Annexure-A10 is the statement given by the 1[st] accused in this case indicating the role of the petitioner and the other accused in smuggling of gold. He admits that gold was purchased from Gold Souk and Viren A U at Dubai and the payments for the purchase of gold was made either by M. P. C Trading or personally by the petitioner. The smuggled gold was sold and proceeds shared by the partners and distributed as Hawala money. He has admitted sale of 10 Kgs of gold to Mohammed Ashraf of Malabar Gold. 9. In Annexure-A11 statement given by the aforesaid Mohammed Ashraf, he has admitted of purchasing 10 Kgs of gold from the 1[st] accused. Though he gave a second statement on the Crl.MC 4400/2019 10 very next day affirming his Annexure-A11 statement, he later retracted it by sending a letter to the ADGP, DRI alleging coercion and threat. 10. The petitioner was not arrested as he was residing in Dubai in connection with his business. All the other accused were arrested and remanded to judicial custody. Proceedings under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act) were also initiated against them and orders of detention made. After undergoing the period of detention under the COFEPOSA Act, they have been released. The petitioner has not so far been served with any notice or detention order. Annexure-A12 is the copy of an order of detention addressed to the 1[st] accused. 11. The petitioner submits that the DRI has implicated him as the 3[rd] accused solely based on uncorroborated statements of co-accused 1, 4 and 5. Prima facie, no offence is made out against Crl.MC 4400/2019 11 the petitioner for an offence punishable under Section 135 of the Customs Act and there is no chance of his being convicted after trial. Hence, it is prayed by the petitioner that all further proceedings against him in OR No.12/2013 be quashed under Section 482 of the Cr.P.C. 12. The learned Standing Counsel for the DRI has filed a statement objecting to the petition seeking to quash the proceedings in Annexure-A5 occurrence report. It is submitted that the occurrence report is not filed under the provisions of the Cr.P.C and the customs officers are not Police officers and, therefore, the occurrence report submitted by customs officers cannot be equated to a First Information Report filed by the Police. The provisions of the Cr.P.C is, therefore, not strictly applicable to the proceedings under the Customs Act. Formal accusation under the Customs Act could be said to have been made only after the filing of a complaint before the jurisdictional Magistrate. It is also stated Crl.MC 4400/2019 12 that statements made under Section 108 of the Customs Act during the enquiry by the customs officers are not statements made by a person accused of an offence. Hence, the inherent powers of the High Court under Section 482 Cr.P.C cannot be invoked in a case where a person is apprehending proceedings against him under the Customs Act, so long as no complaint has been filed against him. Hence, it is prayed that the petition may be dismissed. 13. Heard the learned counsel appearing for the petitioner , Sri Madhavankutty, and Sri S. Manu, the Standing Counsel appearing for the D.R.I. 14. The learned counsel appearing for the petitioner submits that interference of this Court under Section 482 Cr.P.C is necessary to secure the ends of justice and to prevent the abuse of the process of law. He relies on the decision of the Honourable Apex Courti in Madhavrao Jiwaji Rao Scindia & Ano v. Sambhaji Rao Chadrojirao Angre & Ors [AIR 1988 SC 709] in support of his Crl.MC 4400/2019 13 argument, wherein it is held as thus:- “ The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” It is further argued by the learned counsel for the petitioner that confession by a co-accused cannot be treated as evidence under the Evidence Act. It is also submitted that confession spoken to under Section 30 of the Evidence Act is not of much assistance in this case. Crl.MC 4400/2019 14 15. Per contra, Sri S.Manu, the learned Standing Counsel for the D.R.I., submits that customs officers are not Police officers. They are revenue officers, primarily concerned with detection of smuggling and enforcement of proper duties. It is stated that an occurrence report submitted by a customs officer cannot be equated with an F.I.R., and therefore, the provisions of the Cr.P.C cannot strictly apply to an investigation under the Customs Act. The learned Standing Counsel argues that the power to arrest a person by a customs officer is statutory in character and cannot be interfered with. The person who gives a statement under Section 108 of the Customs Act may not necessarily be made an accused and the provisions of Sections 154 to 157 and Section 173 (2) of the Cr.P.C do not apply to a case under the Customs Act. The learned Standing Counsel relies on the decision of the Division Bench of this Court in Kishin S. Loungani v. Union of India & Ors. [2017(1) KHC 355] . Crl.MC 4400/2019 15 16. The Customs Officials are not Police Officers. The confession, though retracted, is an admission and binds on the petitioner ( See Surjeet Singh Chhabra v. Union of India [AIR 1997 SC 2560] ). Statement given under Section 108 of the Customs Act, which is inculpatory, is not hit by the provisions under Sections 25 and 26 of the Evidence Act. Whether the statements of the co-accused could be used against the petitioner is a question to be determined by the trial court. It is, therefore, premature for this Court to discard the materials against the petitioner in the form of statements under Section 108 of the Customs Act given by the other accused. This is not a fit case for invoking the jurisdiction of this Court under Section 482 Cr.P.C to quash the proceedings. The Crl.MC is dismissed. Sd/- ASHOK MENON JUDGE jg Crl.MC 4400/2019 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE MAHAZAR DATED 08.11.2013 PREPARED BY THE 2ND RESPONDENT.** **ANNEXURE A2 TRUE COPY OF THE STATEMENT DATED 08.11.2013 OF MS.HIROMASA V.SEBASTIAN UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** **ANNEXURE A3 TRUE COPY OF THE STATEMENT DATED 08.11.2013 OF MS.RAHILA CHEERAYI UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** - **ANNEXURE A4 TRUE COPY OF THE RETRACTION LETTER SUBMITTED BY MS.RAHILA BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (ECONOMIC OFFICERS), ERNAKULAM.** **ANNEXURE A5 TRUE COPY OF THE OCCURRENCE REPORT BEARING O.R.NO.12/2013 OF THE DIRECTORATE OF REVENUE INTELLIGENCE, REGIONAL UNIT, KOCHI, DATED 09.11.2013. ANNEXURE A6 TRUE COPY OF THE STATEMENT DATED 11.11.2013 OF MR.P.V.NOUSHAD RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962. ANNEXURE A7 TRUE COPY OF THE STATEMENT DATED 15.11.2013 OF LOUIS RODRIGUEZ RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962. ANNEXURE A8 TRUE COPY OF THE STATEMENT DATED 18.11.2013 OF SRI.AMMANATH BABUCHANDRAN @ EDAVELA BABU RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** Crl.MC 4400/2019 17 **ANNEXURE A9** **ANNEXURE A10** **ANNEXURE A11** **ANNEXURE A12** **TRUE COPY OF THE STATEMENT OF HABEEB RAHMAN RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** **TRUE COPY OF THE STATEMENT OF SHAHBAS MUHAMMED RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** **TRUE COPY OF THE STATEMENT OF T.V.MOHAMMED ASHRAF RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.** **TRUE COPY OF THE ORDER OF DETENTION ALONG WITH ITS GROUNDS (WITHOUT DOCUMENTS).**