The duty of the prosecutor to ensure proper and formal adduction of evidence, especially in cases of public interest, and the consequences of negligence in discharging this duty.

1. On the criminal complaint (CC No.282/1/1993) of the petitioner, the respondent stood summoned as accused by order dated 06.07.1993 of Additional Chief Metropolitan Magistrate (ACMM), the accusations levelled constituting the offence under Section 135 of the Customs Act, 1962. It may be mentioned that besides the respondent, one another (Jitender Nath) had also been summoned by the said order, the said other accused having since died and the proceedings against him having abated.

2. The complaint dated 30.06.1992 was presented by Mr. Satish Aggarwala, Senior Special Public Prosecutor engaged by the petitioner, he having continued to be the counsel till date and representing the petitioner in these proceedings as well. The complaint was accompanied by sanction and authorization for prosecution granted by Collector of Customs on 26.11.1992 in exercise of the power vested in him by Section 137(1) of the Customs Act, 1962.

3. In view of the fact that the complaint was filed by a public servant in official capacity, no preliminary inquiry was held, cognizance being taken on the complaint, the documents and the material filed therewith, it being inclusive of the above mentioned sanction, satisfaction about its sufficiency having been recorded by the ACMM in the order dated 06.07.1993, and procedure of trial of warrant cases instituted otherwise than on a police report (i.e., the complaint cases) was applied. After securing the presence of the accused, the ACMM took the matter to the stage of recording of pre-charge evidence.

4. The case was listed before the ACMM for such purposes on 09.11.1994 when the following order was recorded:-

“Present: Sh. Satish Aggrwal P.P. for the Customs. Accused No.2 on bail with counsel Sh. Akshay Anand.

Accused No.1 is not present. The presence of accused No.1 is exempted for today on an application made on his behalf by Sh. Akshay Anand Adv. However, Sh. Akshay Anand Adv. has got no objection if the evidence of the witness present is recorded. As such statement of PW 1 Sh. S.K. Verma partly recorded. His further statement is to be recorded at Nangloi where the case property is lying and the permission from the Hon’ble High Court has been received to hold the court there. To come up for evidence at Nangloi on 8.12.94.

ACMM/9.11.94”

5. It may be mentioned here that S.K. Verma (PW-1), referred to in the aforementioned proceedings, was Inspector Customs (Preventive) by whom the complaint had been filed on behalf of the petitioner. The deposition recorded on 09.11.1994 was his part examination-in-chief, which would read thus:-

“PW1. Sh. S.K. Verma ACO, IGI Airport, New Delhi.

On S.A.

In September, 1992 I was posted as Inspector Customs at Customs Collectorate, Delhi. On 26.9.92 acting on specific information I alongwith the officers of Customs preventive searched the godown located at Nilothi Mode near G.R. Public School Sri Ram Park, Nangloi in the presence of two independent witnesses and Sh.Vikaram Singh Watchman. Sh. Vikaram Singh opened the godown with the keys available with him and as a result of search ball bearing of foreign origin valued at Rs.14,57,500/- (MV) were recovered and during the course of the search the documents, packing list having No.1094 of M/s Ameeco Marketing, Dubai, U.A.E. pasted on one of the wooden crates containing details regarding quantity etc and sticker of Ameeco Marketing telephone numbers, destination, C.C.U./KT etc and one debit voucher of M/s. Great India Chemicals, 251 Kamla Market were also seized. On demand Sh. Vikaramjit could not produce any evidence for the lawful import/acquisition/possession for the purchase and storage of the recovered ball bearing and as such the same were seized vide panchnama Ex.PW1/C which is in my own hand and is signed by me, two panch witnesses at points A to D and thumb marked by S. Vikaram Singh

Watchman at point D on all the pages. Certain documents were also seized which are Ex.PW1/D1 to D3. (To be continued)

RO & AC ACMM/9.11.94.”

6.