Air Customs v. State

1. The present Revision Petition is filed under section 397 Cr.P.C. read with section 401 Cr.P.C. on behalf of the petitioner to impugn the order dated 03.07.2010 passed by the Court of Additional Chief Metropolitan Magistrate, New Delhi in case titled as Air Customs V. Olga Kozireva & Others.

2. It is reflected that Olga Kozireva was arrested by the Officers of the Air Customs for offences punishable under Sections 132 and 135(1)(A) of the Customs Act, 1962 and thereafter the petitioner filed a prosecution against Olga Kozireva and nine others before ACMM, New Delhi for offences punishable under Sections 132 and 135 (1) (A) of the Customs Act, 1962.

3. Olga Kozireva after grant of bail has absented from the Court since 11.10.2007 as a result of which the concerned Trial Court issued the non-bailable warrant with the notice to her surety. As per Report received on 11.02.2008, the non-bailable warrant against Olga Kozireva was sent to the Home Ministry and thereafter the case was adjourned for awaiting the report on the non-bailable warrant issued against Olga Kozireva on 15.07.2008 and thereafter on 17.11.2008.

4. The concerned Trial Court vide order dated 17.11.2008 issued the fresh non-bailable warrant against Olga Kozireva, returnable on 21.08.2009. On 21.08.2009 request for forwarding the warrants against Olga Kozireva to the Ministry of External Affairs for execution was filed and the matter was adjourned for 03.07.2010 for issuance of fresh non bailable warrant. The report was filed on 03.07.2010 but the Court of ACMM, New Delhi passed orders dropping/dismissing the proceedings against Olga Kozireva. The order dated 03.07.2010 is read as under:- In the facts and circumstances, there is no justification for this Court to make any request for extradition on it shown affidavit. It is not intimated that the department has any proposal to request for extradition of accused No.1. It is reported that the NBWs against the accused No.1 can not be executed except through extradition channel. Hence when the complainant has failed to take steps for execution of NBWs against accused No. 1, this Court is left with no option but to drop/dismiss the proceedings against accused No. 1. Held accordingly.

5. The petitioner being aggrieved by the order dated 03.07.2010 (hereinafter referred to as “the impugned order”) filed the present petition to challenge the impugned order on the grounds that the impugned order is bad in law and facts. There is no provision in entire Code of Criminal Procedure for dropping/dismissing the complaint if the non-bailable warrants could not be executed. The Trial Court should have issued the coercive process against Olga Kozireva and required to be declared her as proclaimed offender. The impugned order is contrary to law. It is prayed that the order dated 03.07.2010 be set aside.

6. The perusal of the impugned order dated 03.07.2010 reflects that Olga Kozireva is not available in the country and his presence can be secured through extradition proceedings. The Ministry of External Affairs vide letter dated 20.10.2009 has requested the investigating agency i.e. the complainant to examine the case as per the Extradition Act, 1962 and a formal request of Extradition may be sent to the concerned Authorities. The Trial Court also observed that there is no justification in the Court to make request for extradition and there was nothing on the record to show that the Department has any proposal to request for extradition of Olga Kozireva. It was also reported that the non-bailable warrant against the accused no.1 i.e. Olga Kozireva cannot be executed except through extradition channel and accordingly the proceedings against the accused no.1 i.e. Olga Kozireva were ordered to be dropped.

7. The counsel for the petitioner stated that the concerned Trial Court should not drop or dismiss the proceedings against the respondent no.1 in case the complainant has failed to take steps for execution of non-bailable warrant against the accused no.1 i.e. Olga Kozireva.

8. The section 82 Cr.P.C. deals with proclamation for the person Absconding. Sub section (1) provides that if any Court has reason to believe that any person, against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

9. Admittedly the accused no.1 i.e. Olga Kozireva in the complaint was admitted to bail but absconded thereafter. The nonbailable warrant has already been issued against the Olga Kozireva but could not be executed. Thereafter the appropriate procedure which was required to be followed by the Trial Court to issue the proclamation against Olga Kozireva for appearance at specified place and at specified time. The Trial Court was not required to drop the proceedings as per the impugned order. The impugned order is not sustainable in law and accordingly set aside. The Trial Court is directed to take appropriate steps further in accordance with law in case the non-bailable warrant received unexecuted due to reason whatsoever. In view of the above facts and circumstances of the case, the present petition is accordingly disposed of. CRL.M.A. 9355/2022 (for vacating the direction of Hon’ble Court dated 09.04.2021)

1. It is stated in the application that the applicant who is impleaded as respondent no.2 was made an accused in the present complaint filed by the petitioner in the 2001 and is facing trial since last more than 20 years. Due to delay in the trial, the respondent no.2/applicant is facing inconvenience physically and financially. The Trial Court has already granted last opportunity to the prosecution to conclude the trial but the prosecution has not taken any steps to conclude the trial. The respondent no.2 is the only accused who is facing the trial. This Court in Crl.M.C. NO. 2910/2021 vide order dated 22.12.2021 has already directed to the concerned Trial Court to conclude the trial at the earliest on day-today basis. This Court vide order dated 09.04.2021 has directed the Trial Court that the Trial Court shall not pass the final judgment till the disposal of the present petition. The respondent no.2 prayed that the order dated 09.04.2021 be vacated and the present complaint qua the respondent no.2 be decided as early as possible.

2. In view of the submissions made in the application and as the present Revision Petition has already disposed of, the Trial Court shall be at liberty to pass the final judgment after conclusion of trial in accordance with law and the directions given vide order dated 09.04.2021 be vacated. The Trial Court shall make every possible effort and endeavor for the trial qua the respondent no.2.

3. The application stands disposed of.

SUDHIR KUMAR JAIN (JUDGE) NOVEMBER 23, 2022/j/mys