The Hindu : National : Prosecution failure to produce "best evidence" leads to acquittals

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Sunday, Jun 19, 2005

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Prosecution failure to produce "best evidence" leads to acquittals

Nirnimesh Kumar

Twenty-year trial; Air Customs to blame for failure to secure conviction

NEW DELHI: It is a case where the trial went on for 20 long years and cost the exchequer thousands of rupees. Yet, the prosecution, Air Customs, Indira Gandhi International Airport (IGIA) here, failed to get the accused convicted. And it is to blame for the failure.

Air Customs Officer U.K. Sharma arrested Rajpal Singh and Dinesh Kumar Verma outside the IGIA. A sum of $ 9,950 was recovered from Rajpal Singh, who was travelling to Hong Kong in September 1985. However, the Air Customs did not produce Mr. Sharma in court to allow the accused to cross-examine him, leading to the acquittal of the two. Additional Chief Metropolitan Magistrate Ravinder Dudeja, said: Rajpal Singh has not got the opportunity to cross-examine Sharma, therefore, the prosecution has failed to prove the recovery of the foreign currency from him."

Allowing the submission by counsel for the accused that the prosecution case bristled with serious inconsistencies, the magistrate said: "Since the best evidence [Sharma], which was available with the prosecution has not come on record, it will not be able to convict Rajpal Singh simply on the basis of his statements under Section 108 of the Customs Act." Mr. Sharma appeared before the magistrate for cross-examination by Dinesh Kumar Verma and was examined by counsel in December 2000.

However, cross-examination remained inconclusive that day. And when the court sat after lunch, Mr. Sharma failed to appear. In his absence, the court closed evidence.

Against the closure of evidence, the Air Customs filed a revision petition in a sessions court, which directed the magistrate to give it one more opportunity to produce Mr. Sharma for cross-examination. Yet, the Air Customs failed to produce him, the judgment said.

"In [the] absence of cross-examination, Sharma cannot be treated as an evidence against accused Rajpal Singh, and, therefore, cannot be relied upon," Mr. Dudeja observed.

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