Air Customs Vs Islam Ahmad (Delhi High Court)
Delhi High Court held that prior testimony inadmissible under section 33 of the Indian Evidence Act, 1872 since prosecution didn’t prove that witness is unavailability for post charge cross-examination. Accordingly, appeal is dismissed.
Facts- In this appeal under Section 378 (4) of the Code of Criminal Procedure, 1973, (the Cr.P.C.), the complainant in CC No. 97/1999 on the file of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, assails the judgment dated 05.11.2012 as per which the accused no. 2 (A2), the respondent herein, has been acquitted under Section 248(1) Cr.P.C. of the offence punishable under Section 135 (1)(a) of the Customs Act, 1962 (the Act).
Conclusion- The testimony of PW1 recorded under Section 244(1) Cr.P.C. is certainly evidence given by a witness in a judicial proceeding. The stage under Section 246(4) and 246(5) can be stated to be a later stage of the same judicial proceeding. A2 did cross examine PW1 at the Section 244(1) Cr.P.C. stage. But there is yet another aspect that needs to be satisfied for the Section to apply that is, the evidence becomes relevant only when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. This aspect of the Section has not been satisfied by the complainant because it has not been shown that PW1 was unavailable or incapable of giving evidence or that had been kept out of the way by the adverse party or that his presence could not be obtained without an amount of delay or expense which the trial court, under the circumstances of the case considered unreasonable. Therefore, the testimony of PW1 cannot be made admissible under Section 33 of the Evidence Act.
