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TMI Blog2012 (7) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... impleaded as a party. Accused Jagbir Singh and Harkesh Chand (respondent Nos.2 and 3 respectively herein) are stated to be not represented while accused Gurmej Singh (respondent No.1 herein) is the only accused who is represented before this court. The allegations contained in the complaint were that on the basis of a specific information that a white coloured Maruti Van bearing registration No.CH-01A-8195, allegedly carrying contraband gold, would be passing through Panipat and enroute to New Delhi, the officers of DRI, Delhi Zonal Unit, kept surveillance at Kohend Police Post at National Highway (1), Haryana on 23.7.1990. The officers of the DRI noticed that a white Maruti Van with the aforesaid registration number approached the Police Post at about 9:30 hours on the said date. The driver was signaled to stop but instead of stopping, he sped away towards Panipat side. The DRI officials then chased the white Maruti Van and intercepted it near Panipat at about 10 hours on the same date. One of the occupants of the Van, whose name was later on revealed as Gurmej Singh, respondent No.1, tried to flee but he was over-powered. The Van along with its occupants, Gurmej Singh and Jagbir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very was effected in Delhi and; (iii) the statutory provisions contained in Sections 104 to 106 of the Customs Act, which provided for search, seizure and the arrest of the accused was exercised in Delhi. 5. The learned ACMM, after hearing the learned counsel for the parties has held that the Delhi Court did not have the jurisdiction as the interception of the vehicle had taken place at Panipat, which was admittedly not within the jurisdiction of Delhi Court. The learned ACMM, in order to hold that the Delhi Court did not have the jurisdiction, has placed reliance on a judgment of Punjab Haryana High Court in the case titled Kanwarjit Singh vs. Union of India; 1994 (1) Crimes 255. The facts of the said case were held by the learned ACMM to be somewhat similar to the facts of the present case inasmuch as in the said case also there was a specific intelligence report that Kanwarjit Singh @ Pehalwan had arranged for smuggling of 520 foreign marked gold biscuits into Amritsar sector of the Indo-Pak Border which would be reaching Delhi in the evening of 6.1.1988 concealed in Truck No.DIL-1677. In pursuance of the report, the aforesaid Truck was intercepted at Kundli, which happens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ignored the fact that the factual matrix in the reported case and the present case, no doubt, were somewhat similar, but the stage at which the court s jurisdiction was invoked for discharging the accused on account of lack of territorial jurisdiction was totally different. In the reported case, it was at the stage of summoning itself though, it is not clear but the operative portion of the observations passed by the Punjab Haryana High Court would make it amply clear as it had quashed the issuance of non-bailable warrants against the accused persons in the said case, therefore, that makes one to draw an inference that at the stage of threshold itself, the accused was vigilant to raise the question of territorial jurisdiction of the court taking the cognizance. While as in the instant case, the accused has not only participated in the proceedings by subjecting the witnesses to cross-examination at the pre-charge stage itself, but has continued to do so for a long 12 years and it is only after expiry of these years that the accused has woken up to file an application under Section 245 (2) Cr.P.C. seeking discharge for lack of jurisdiction. It is not only the lack of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that even if the cognizance is taken where the learned Magistrate does not have the competence to take such a cognizance on account of the lack of territorial jurisdiction or lack of competence to deal with the subject, the proceedings do not get vitiated ipso facto. The law is extended even to such an extent that the conviction and sentence in such a contingency cannot be set aside, unless and until a failure of justice is shown by the accused. If this failure of justice would have been shown by the accused to the learned ACMM only then, in my opinion, the learned Magistrate could have discharged the accused under Section 245 (2) Cr.P.C. for the lack of jurisdiction of the Delhi Court. Because of the above reasons, I feel the learned ACMM s order is not sustainable in law. 11. Secondly, the learned Magistrate has failed to notice the subtle difference between the Panipat case and the Delhi case inasmuch as it does make lot of difference in a case where said question is raised at the threshold, in comparison to a case where it is raised after inordinate delay of 12 years. 12. Thirdly, even on merits, I feel that the Delhi Court will have jurisdiction. This is because of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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