2010 (9) TMI 38 - HC - Customs

Recording of testimony of witness - department failed to produce the witness - Held that - On the request of the petitioner, Department of Customs, one opportunity was granted to produce PW-2, Mr.Rajiv Kumar Kumra but they failed to produce him. Wait cannot be endless. The alleged offence relates to year 1990. Enough time and fair opportunity has been given to the prosecution to lead their evidence. In view of the aforesaid the impugned order dated 18th April, 2007 does not merit interference in exercise of discretionary jurisdiction under section 482 of the Code

Issues: Alleged seizure of gold slabs under the Customs Act, 1962; Application under Section 311 of the Code of Criminal Procedure for recording further testimony of a witness; Failure to produce the witness for testimony; Discretionary jurisdiction under section 482 of the Code.

1. Alleged seizure of gold slabs under the Customs Act, 1962:
The judgment pertains to a prosecution filed under the Customs Act, 1962 concerning the alleged seizure of two gold slabs on 15th December 1990. The case progressed to the stage of final arguments after evidence was recorded.

2. Application under Section 311 of the Code of Criminal Procedure for recording further testimony:
An application under Section 311 of the Code was filed by the Department of Customs to record further testimony of a witness, PW-2, Mr. Rajiv Kumar Kumra. The application was allowed, granting an opportunity to produce the witness for testimony on a specified date. However, on the scheduled date, the witness was not produced, leading to the matter being directed for final arguments.

3. Failure to produce the witness for testimony:
The Department of Customs failed to produce the witness, Mr. Rajiv Kumar Kumra, on the designated date despite being granted an opportunity to do so. The Department cited the unavailability of the witness due to being on deputation abroad. The court noted that the Department had been aware of the witness's availability and had been granted a specific date to produce him for testimony. The court emphasized that sufficient time and opportunities had been provided to the prosecution to present their evidence, and the failure to produce the witness led to the dismissal of the petition.

4. Discretionary jurisdiction under section 482 of the Code:
In the exercise of discretionary jurisdiction under section 482 of the Code, the court dismissed the petition, stating that the impugned order did not warrant interference. The court highlighted that the prosecution had been given ample time and opportunities to present its evidence, and the failure to produce the witness on the specified date led to the conclusion that the wait for testimony could not be endless, especially considering the alleged offence dating back to 1990.

In conclusion, the judgment addresses the issues related to the alleged seizure of gold slabs under the Customs Act, 1962, the application for recording further testimony of a witness, the failure to produce the witness for testimony, and the court's discretionary jurisdiction under section 482 of the Code. The court emphasized the importance of timely and diligent presentation of evidence, ultimately leading to the dismissal of the petition due to the prosecution's failure to produce the witness despite being granted an opportunity to do so.

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