ORDER :- Perused the application and impugned order. It appears that the trial Judge refused to register the case of the applicants u/s.125, Cr.P.C. merely because the applicant was not present in court at the time of filing the application. This is apparently erroneous. The learned Magistrate must hear in mind that Chapter IX of the Criminal P.C. gives special powers to Criminal Court and lays down procedure almost similar to that of a Civil Court. The procedure is entirely distinct from the rest of the Code dealing with criminal matters. As such presence of the applicant at the stage of filing application u/s.125, Cr.P.C. is not a must. She may succeed or fail on the proof of her allegations or otherwise. No verification Statement of applicant is necessary. As such the order of the trial J.M.F.C. is bad in law per se. Rule made absolute impugned order if set aside. The Trial Court is directed to register the application and proceed according to law. Rule made absolute. 1984 CRI. L. J. 1464 BOMBAY HIGH COURT Criminal Law Journal 1960-2008 SHARAD MANOHAR, J. Harkishin Khushalani, Petitioner Versus S. G. Rajadhyaksha and another, Respondents. Criminal Writ Petn. No.130 of 1984 Decidfed on : 9-4-1984. Customs Act (52 of 1962), S.111(m) r.w. S.577 - Declaration under S.77 - Goods not intended to be imported -Declaration made about such goods is not a declaration under S.111(m). The declaration that is contemplated by S.77 of the Customs Act is to be given only for such goods which are to be cleared by the persons concerned through the Customs check-post. The mere statement made by the person as regards the contents of some of the articles in the suitcases belonging to him does not mean that he has been making a declaration as regards the goods which he wants to import in the territory of India. Clause (m) of S.111 of the Customs Act specifically contemplates the declaration which is to be made under S.77 of the Act and not a general kind of declaration as is understood by us in the Courts of law. (Para 6) The offence contemplated by Customs Act is not independent of the requirement of mens rea. The petitioner would not have gained anything by making a false statement as regards the contents of the suitcases which were to be carried from Hongkong to Abu Dhabi via Bombay. (Para 6) The offence contemplated by Customs Act is not independent of the requirement of mens rea. The petitioner would not have gained anything by making a false statement as regards the contents of the suitcases which were to be carried from Hongkong to Abu Dhabi via Bombay. The fact that he gave the description of the contents of the suitcases which was not exactly the correct description will prove at the most that he had made certain wrong statements about certain facts; but that would not justify an inference that it was a false statement. A statement is said to be false when it is narrated in wrong manner knowing it to be wrong and that particular statement is made with certain ulterior motive. (Para 7) Advocates appeared: Ram Jethmaiani with S.B, Jaisinghani and Thaku Ajwani, for Petitioner; A.R. Gupte, for Respondent No.1, J.A. Barday, P.P., for the State. ORDER :- Both the learned counsel have fairly stated that it is unnecessary for me to set out the facts or the various questions urged by the Counsel at length because on admitted facts the petitioner is entitled to contend legitimately that the complaint filed against him cannot be sustained and ought to be quashed. 2. The few relevant facts are as follows :- The petitioner is a resident of Abu Dhabi and is carrying business at Abu Dhabi. On 17-7-1980 he came by a British Airways Air Craft from Hongkong and on. his way to Abu Dhabi he broke his journey in Bombay. He had two suitcases with him; but he had no intention to bring the suitcases in Bombay. The suitcases were never to be cleared in Bombay at all. The petitioner broke his journey in Bombay because he wanted to meet his aged parents; but the suitcases were to be transhipped from British Airways Air-craft to the Gulf Airways Air-craft. This transhipment was to be done not by the petitioner but by the Airline Authorities themselves. So far as the petitioner was concerned he had a brief-case with him but even that brief-case he handed over to the Customs Authorities before he left the Airport. On 19th July 1980, the Intelligence Officers of Customs at the Bombay Air Port noticed those two cases near the conveyer-belt shutters in the arrival baggage hall. So far as the petitioner was concerned he had a brief-case with him but even that brief-case he handed over to the Customs Authorities before he left the Airport. On 19th July 1980, the Intelligence Officers of Customs at the Bombay Air Port noticed those two cases near the conveyer-belt shutters in the arrival baggage hall. Seeing that the bags belonged to the petitioner and that on lifting they were found to be unusually heavy, they got suspicion about him and they were waiting for his arrival at the Airport. When the petitioner came to the Airport for catching his flight in the morning on 20th July 1980, he was accosted by the Customs Officers and he was asked about the bags. When the petitioner admitted that the bags belonged to him, he was asked to state the contents of the bag and his statements were recorded. When the bags were opened they were found to contain some undeclared items such as wrist watches and watch straps in addition to some other articles declared by the petitioner. It was found that the declaration made by the petitioner as regards the contents of the bags was not strictly correct. It was on the basis of this state of facts that the instant criminal proceedings have been started. The Customs Authorities thereafter started adjudication proceedings against the petitioner. But the Additional Collector of Customs, Shri Joglekar, was satisfied that no offence under S. 111(d) could be brought home against the petitioner because it could not be said to have been proved either that he had imported or attempted to import the contraband articles in India. This was evidently so because the suitcases in which the contraband goods were found were not to be brought to India at all and they were to be transferred from one Air-craft to the other Air-craft for carrying, first of all, from Hongkong to Bombay and thereafter, by transhipment, from Bombay to Abu Dhabi. In this plain view of the matter, the learned Officer specifically exonerated the petitioner of the offence under S. 111(d) of the Customs Act. In this plain view of the matter, the learned Officer specifically exonerated the petitioner of the offence under S. 111(d) of the Customs Act. The learned Officer, however, held that the statement made by the petitioner as regards the contents of the suitcases were at material variance with the actual contents of the suitcases and that the declaration made by the petitioner regarding the contents in the suitcases, in his statement made before the Customs Authorities, was at variance with the actual state of affairs. He, therefore, held that the goods in question were liable for confiscation under S.111(m) of the Customs Act 1962. He therefore ordered confiscation of the goods which were not properly declared as also the imposition of penalty of Rs. 15,000/-against the petitioner. 3. The petitioner filed appeal to the Board and the Board rightly held that the facts of the case did not warrant attraction of Cl.(m) of S 111 of the Customs Act at all. The Board rightly held that the declaration contemplated by cl.(m) of S.111 of the Customs Act was the one which is provided for by S.77 of the Customs Act and the said declaration under S.77 is one which has gat to be made by the passenger for clearance of the goods for the purpose of being brought into India. The Board found that these goods were never intended to be cleared thr.ough the Customs at all and it was not the case of the Customs that any attempt was made by the petitioner to clear the goods through the customs. It was, therefore, rightly held that the description given by the petitioner of the goods in his statement before the Customs Authorities was not a declaration within the meaning of S. 77 of the Act at all and that hence, cl. (m) of S.111 of the Act not attracted at all. The order of confiscation as well as the order of penalty were, therefore quashed and set aside by the Board. 4. It was thereafter that the instant complaint was filed by Shri Joglekar, Addl. Collector of Customs (Preventive) Bombay. Sanction was accorded by Shri Joglekar, the Addl. Collector of Customs (Preventive), Bombay for the instant complaint out of which the present proceedings arise. By this sanction, the learned Addl. 4. It was thereafter that the instant complaint was filed by Shri Joglekar, Addl. Collector of Customs (Preventive) Bombay. Sanction was accorded by Shri Joglekar, the Addl. Collector of Customs (Preventive), Bombay for the instant complaint out of which the present proceedings arise. By this sanction, the learned Addl. Collector has not only sanctioned prosecution of the petitioner as regards the offence contemplated under S.111(m) of the Customs Act but also for the one contemplated by S.111(d) of the Customs Act, of which offence the Addl. Collector has in fact specifically exonerated the petitioner. The complaint was filed by the Assistant Collector of Customs before the Chief Metropolitan Magistrate and taking cognizance of the complaint filed, the Chief Metropolitan Magistrate has issued process against the petitioner. It is against this order issuing the process that the present petition is filed by the petitioner for quashing the proceedings. 5. As stated at the outset it is unnecessary for me to set out the various points argued on behalf of the petitioner because the petitioner is entitled to have the proceedings quashed even on a very narrow ground. In the first place it was conceded by Mr. Gupte, the learned Counsel appearing for the department that the sanction as regards the offence contemplated by cl.(d) of S.111 of the Customs Act is plainly unsustainable because the officer himself was fully convinced that the petitioner had no intention to bring any contraband goods in the territory of India at all. The only question therefore remained as to whether the sanction for prosecution relating to offence under S.111(m) of the Act can be justified. 6. Mr. Jaisinghani, the learned Counsel for the petitioner, contended that the very fact that the Addl. Collector has granted sanction for both the grounds of offences shows that he has completely failed to apply his mind to the question as to whether the facts of the case invited grant of sanction. The Counsel may be right; but I do not propose to base my judgment on these circumstances because, it can be argued that the fact that the officer has been in error in connection with offence under one set of legal provisions may not necessarily mean that he is equally erroneous as regards the other set of provisions. All the same it can be argued that this is an indication of non-application of mind. All the same it can be argued that this is an indication of non-application of mind. I however want to leave the question at large because, to my mind, the petitioner is entitled to clear order in his favour on the plain reading of the section and on the plain appreciation of the case by the department itself. It is not the case of the department that the goods in question were sought to be cleared through the Customs Authorities of the Bombay by the petitioner. The declaration that is contemplated by S.77 of the Customs Act is to be given only for such goods which are to be cleared by the persons concerned through the Customs Check-post. The mere statement made by the person as regards the contents of some of the articles in the suitcases belonging to him does not mean that he had been making a declaration as regards the goods which he wants to import in the territory of India. Clause (m) of S.111 of the Customs Act specifically contemplates the declaration which is to be made under S. 77 of the Act and not a general kind of declaration as is understood by us in the Courts of law. 7. Moreover, it is to be noted that the offence contemplated by Customs Act is not independent of the requirement of mens rea. The petitioner would not have gained anything by making a false statement as regards the contents of the suitcases which were to be carried from Hongkong to Abu Dhabi, via Bombay. The fact that he gave the description of the contents of the suitcases which was not exactly the correct description will prove at the most that he had made certain wrong statements about certain facts; but that would not justify an inference that it was a false statement. A statement is said to be false when it is narrated in wrong manner knowing it to be wrong and that particular statement is made with certain ulterior motive. In the instant case nothing was to be either gained or lost by the petitioner by giving over the wrong description of the contents of the suitcases. There is, therefore, complete absence of mens rea in the instant case. In view of the above, the complaint filed against the petitioner must be said to be disclosing no offence whatsoever. In the instant case nothing was to be either gained or lost by the petitioner by giving over the wrong description of the contents of the suitcases. There is, therefore, complete absence of mens rea in the instant case. In view of the above, the complaint filed against the petitioner must be said to be disclosing no offence whatsoever. If this is the position, then the order issuing process in pursuance of the complaint must be held to be unsustainable. 8. The impugned order is hereby quashed and set aside. The Rule earlier issued is made absolute. Order accordingly.