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2006 DIGILAW 249 (KER)

Abdul Wahab v. Deputy Commissioner of Customs

2006-04-07

K.PADMANABHAN NAIR

body2006
Judgment :- The second accused in C.C.No.22 of 2001 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam is the revision petitioner in this Criminal Revision Petition. This Crl. Revision Petition is filed challenging an order passed by the Additional Chief Judicial Magistrate dismissing the petition filed by the revision petitioner pleading discharge under S.245(1) Cr.P.C. The short facts necessary for the disposal of the Crl. Revision Petition areas follows: 2. The first accused in the case imported a car purporting to be a 3200 cc Mercedez Benz Car Model S.320 from Dubai by Airway Bill No.098 7307 5693 dated 12-1-1998. M/s. Navabharath Enterprises was engaged for clearing the cargo. They filed a bill of entry M 374 for clearance, of Model S-320 Mercedez Benz Car. Reliable information was received by the Intelligence Officer of Directorate Revenue Intelligence to the effect that the documents produced for clearance of the vehicle were forged. The officer of Directorate of Revenue Intelligence intercepted the vehicle, at Air Cargo Complex, Thiruvananthapuram on 11-2-1998. The chassis number stated in the documents tallied with the chassis number inscribed in the vehicle. The engine number given in the document was No.10499422037783 but the number found in the engine was R 1040162406. The statement of the first accused was recorded by the Senior Intelligence Officer. One Ali Mubarak appeared before the Officer voluntarily. His statement was recorded on 16-2-1998. 3. The first respondent filed a complaint alleging that the importer had violated the condition Nos.(a) and (c) of the Public Notice dated 31-3-1997. It was alleged that the car was purchased by the petitioner from Ali Kalifa from South Ampton and was imported to Dubai in the year 1996. The records were manipulated to appear that the vehicle was imported in the year 1995 in the name of the first accused in an unlawful manner. It was also alleged that no payment was made towards the value of the car in Dubai before the return of the accused. It was also alleged that there was, no evidence to show that the car was used by the first accused for more than one year prior to his return to India. It was alleged that the first accused claimed clearance of the car by making a false declaration. It was also alleged that there was, no evidence to show that the car was used by the first accused for more than one year prior to his return to India. It was alleged that the first accused claimed clearance of the car by making a false declaration. It was alleged that the first accused did the above said act in pursuance of a conspiracy hatched by himself and the petitioner. 4. The petitioner as well as the first respondent appeared in pursuance of the summons received On the side of prosecution, tour witnesses were examined as P.Ws.1 to 4. Exts.P1 to P6 proved and marked. After the prosecution evidence, was over, the case was posted for framing charge under S.245 Cr.P.C. The accused had argued for a discharge under S. 245(1) Cr.P.C. The learned Magistrate by order dated 16-6-2004 rejected the prayer for discharge and posted the case for hearing and framing of the charge to 16-07-2004. Thereafter the case was adjourned to 19-08-2004. On that day, the petitioner filed Crl M.P.No.3335 of 2004 under S.245(1) Cr.P.C pleading for a discharge. The learned Magistrate by order dated 7-1-2005 dismissed Crl.M.P.No.3335 of 2004 and posted the case for framing charge. At that stage, the petitioner has filed this Crl.R.P challenging the order passed by the Additional Chief Judicial Magistrate (Economic Offences) on 7-1-2005 by which Crl.M.P.No.3355 of 2004 was dismissed. 5. Heard Sri B. Raman Pillai, the learned counsel appearing for the petitioner, Sri, John Varghese, Assistant Solicitor General for the first respondent and Sri K. Ravikumar, the learned Public Prosecutor appearing for the second respondent. 6. At the outset I may state that the Crl.R.P itself is not maintainable. A perusal of the records shows that the case was one triable by the procedure prescribed under Chapter 19 dealing with warrant case. Chapter 19 Cr.P.C. deals with trial of warrant cases. Such cases are divided into two groups (i) the cases instituted on a, police report and (ii) cases instituted otherwise than on a police report. Ss.244to 247 Cr.P.C. deal with the trial of warrant cases instituted otherwise than on a police report. The case at hand is one instituted on a compliant filed by a public servant. 7. Such cases are divided into two groups (i) the cases instituted on a, police report and (ii) cases instituted otherwise than on a police report. Ss.244to 247 Cr.P.C. deal with the trial of warrant cases instituted otherwise than on a police report. The case at hand is one instituted on a compliant filed by a public servant. 7. S.244 Cr.P.C. provides that in Any warrant case instituted otherwise than on a police report the accused Appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution - and take all such evidence as may be produced in support of the prosecution. In such cases, the Magistrate may on the application of the prosecution, issue summons to any witnesses directing him to attend the court to give oral evidence or to produce any document or other thing. After the examination of the witnesses, the Magistrate may hear the-Prosecutor and if he finds that there are prima facie materials for framing charges, the charges can be framed. S.245-(1) Cr.P.C. provides that if upon taking all the evidence referred to in S.244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which, if, unrebutted, would warrant his conviction, the Magistrate shall discharge the accused. Sub-section (2) of S.245 provides that even before that stage, the Magistrate can discharge the accused in case he considers the charge to be groundless. It is well settled position of law that the accused has no statutory right to cross, examine a witness examined at the stage of S.244. But the records of this case show that while recording the evidence of the prosecution witnesses under S.244 Cr.P.C. the petitioner was allowed to cross examine the witness examined by the prosecution thoroughly. Thereafter, the matter was beard, in detail and as per order dated 16-06-2004, the learned Magistrate found that the prayer for the Accused to discharge them cannot be accepted and it is only to be rejected. The case was posted for framing charges. The records show that thereafter, on 19-08-2004 the present petition in which the impugned order was passed was filed. So even if the Crl.R.P. is allowed, the earlier order by which the learned Magistrate had rejected the prayer of the accused for a discharge under S.245(1) Crl.P.C. stands. So the Crl. R.P is not maintainable on that simple ground alone. The records show that thereafter, on 19-08-2004 the present petition in which the impugned order was passed was filed. So even if the Crl.R.P. is allowed, the earlier order by which the learned Magistrate had rejected the prayer of the accused for a discharge under S.245(1) Crl.P.C. stands. So the Crl. R.P is not maintainable on that simple ground alone. 8. Now I shall consider whether there is any merit in the case put forward by the petitioner. A perusal of the complaint and records shows that the first accused imported a car claiming to be a 3200 CC Mercedez Benz from Dubai vide Airway Bill 09873075693 dated 12-1-1998. M/s. Navabharat Enterprises, Customs House Agent was engaged for clearing the imported cargo and the Customs House agent filed bill of entry No.374/dated 23-1-1998. The Customs House Agent held necessary papers in terms of ITC TN No.202/9297 under Category A. On receipt of reliable information that the documents produced by the importer were not genuine, an inspection of the car was conducted on 11-2-1998 at the Air Cargo Complex, Trivandrum. The importer was questioned under S.108 0 the Customs Act and his statement recorded. The statement of one Ali Mubarak was recorded on 16-2-1998 by the Assistant Director, DRI, Kozhikode. Ali Mabarak is the uncle of the first accused, The case put forward by the complainant was that the car was purchased by the petitioner from Ali Shajahan from South Ampton and was imported to Dubai in the year 1996 but the records were created to the effect the car was registered in Dubai in the year 1995 in the name of the first accused. The first accused had stated that the car was actually purchased by the petitioner and the vehicle was new used by him. The documents produced along with the Bill of Entry contain the engine number and chassis number. The inspection report of the car shows that the chassis number tallied with the documents filed. But the Engine No. of the Car shown in the document was not seen and another number was noticed. The engine number of the car given in the document was 10499422037783. But the number of the engine fitted in the car was R.1040162406. The records also show that the vehicle tallying with the Engine Number and chassis number was registered in Dubai in the year 1996 only. The engine number of the car given in the document was 10499422037783. But the number of the engine fitted in the car was R.1040162406. The records also show that the vehicle tallying with the Engine Number and chassis number was registered in Dubai in the year 1996 only. According to the petitioner, even accepting the contention of the complainant that the car was only imported on 4-7-1996, the vehicle was brought to India after the period mentioned in the public notice and hence no offence is made out. 9. The materials on record show that the chassis number of the vehicle is established as that of Mercedez Benz. The complainant proceeded on the assumption that the engine fitted to the car was actually manufactured by Mercedez Benz Company and usually fitted to the model S.320. But whether the engine fitted to the disputed car was actually manufactured by the Mercedez Benz Company was not seen verified with the Company. How far the car now imported can be treated as a 3200 CC Mercedez Benz Car S.320 itself is doubtful. The evidence adduced by the complainant shows that chassis alone is that of a model S.320 Mercedez Benz. But that alone is not sufficient to hold that the car is actually a model S.320. It is the engine that matters. If another engine is fitted to a chassis of a car manufactured by another company, it cannot be treated as a car made by the company which manufactured the chassis. 10. The documents produced to prove the date of import from Southampton to Dubai were forged. Whether such documents were issued in respect of the car itself is doubtful. As rightly held by the learned Magistrate, there is no prima facie material to show that the importer made any payment in Dubai before his return to India. The statement given by importer shows that he had absolutely no idea, regarding the import of the car from Southampton to Dubai. If he was the actual importer of the car, such information could have been easily furnished by him. As rightly observed by the learned Magistrate, there is prima facie material to show that it was not the first accused who imported the car from Southampton to Dubai but there is strong prima facie, material to show that the car was imported by the second accused who is the petitioner. 11. As rightly observed by the learned Magistrate, there is prima facie material to show that it was not the first accused who imported the car from Southampton to Dubai but there is strong prima facie, material to show that the car was imported by the second accused who is the petitioner. 11. The learned counsel appearing for the revision petitioner has strenuously argued before me that Ali Mubarak had no business to give a statement for and on behalf of the petitioner, Ali Mubarak voluntarily appeared before the Competent officer and produced an authorization given by the petitioner. At the time of argument, the learned counsel appearing for the petitioner, had disputed the genuineness of the authorization letter. In this connection it is very pertinent to note that even though the accused has no statutory right to cross examine the witness examined by the prosecution at the stage of recording evidence under S.244 of the Crl. Procedure Code in this case the petitioner availed that opportunity. He was permitted to cross examine the witness examined by the prosecution, The document was admitted without any objection in the presence of the advocate appearing for, the'-petitioner. Witnesses were cross examined by the counsel appearing for the petitioner with reference to the authorization letter. Since the document was admitted without any objection, the petitioner cannot now be allowed to turn round and dispute the authenticity or genuineness of that document. There is absolutely no law which enjoins that an authorization given by a party to represent him before the DRI shall be in any particular form and it shall be attested in any particular manner. It is also very pertinent to note that the relationship between the petitioner and Ali Mubarak is not disputed. If as a matter of fact, Ali Mubarak, had appeared before the Magistrate without the knowledge and consent of the petitioner, he could have very well objected to the authority of Ali Mubarak at the appropriate time. The entire attempt made by the petitioner during the cross examination of P.W.4 was to prove that P.W.4 was not acquainted with the signature and handwriting of the petitioner and that was not signed in his presence. An authorisation is produced because the actual person is not able to appear before the competent officer. The entire attempt made by the petitioner during the cross examination of P.W.4 was to prove that P.W.4 was not acquainted with the signature and handwriting of the petitioner and that was not signed in his presence. An authorisation is produced because the actual person is not able to appear before the competent officer. It is not the law that the person who gives an authorisation shall appear before the competent officer along with the person in whose favour he proposes to give an authorisation and sign the same in the presence of the competent officer. It is too late to raise a contention that the authorization produced by Ali Mubarak before P.W.4 was not, an authorization given to him by the petitioner. That is a document properly proved and admitted in evidence. The genuineness or admissibility of the same cannot be disputed in this proceedings. 12. Another contention raised by the petitioner is that the statement by Ali Mubarak cannot be relied on for any purpose. It is argued that the statement given by Ali Mubarak cannot be used against the petitioner under S.108 of the Customs Act. It is argued that the gazetted officer of the Customs has got power to record the statement of a person only in case that person is served with a summons and that person appears before the Customs Officer in pursuance of such a summons issued under S. 108 of the Customs Act. S.108 of the Customs Act reads as follows:­ "108. Power to summon persons to give evidence and produce documents. (1) Any gazetted officer of custom shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry, which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under S. 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of S.193 and S.228 of the Indian Penal Code." A reading of S.108 of the Customs Act shows that it deals with the, power of a customs officer to summon a person whose attendance is considered to be necessary either to give evidence or to produce a document. It does not say the customs officer can record a statement under that section only if he issues a summons. Sub-s.(2) of S.109 provides the form of summons. Sub-s.(3) of 108 provides that any person who is served with summons is bound to attend either in person or by an authorised agent. The power to examine a person is given under S.107 of the Customs Act also. S. 107 reads as follows: "Power to examine persons. - Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with smuggling of any goods (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case." So any officer of the customs empowered in this behalf by general or special order May examine any person acquainted with the facts and circumstances of the case during the course of any enquiry. S.108 confers additional power to issue summons also. S.108 confers additional power to issue summons also. But that does not mean that unless the Customs Officer issues summons, he cannot examine any person acquainted with the facts of the case and record his statement and even if such a person voluntarily gives statement, that cannot be relied on for any purpose. Even without summons any person can appear before the Customs Officer and can give a statement. But when a statement is recorded under S.107 or 108 of the Customs Act, the person who gives a statement must be informed of the purpose of recording such a statement. The person who gives the statement is bound to state the truth and the statement which is recorded is perfectly admissible in evidence. There is no merit in the contention raised by the petitioner that the statement given by Ali Mubarak is not admissible under the provisions of S.108 of the Customs Act. The learned Magistrate had considered all aspects, of the matter and correctly found that the non-issuance of summons to A2 is not a ground to discredit the statement given by Ali Mubarak who is his authorised agent. 13. The facts and circumstances stated above show that the finding of the learned Magistrate that there are materials to frame charge against the accused is perfectly correct on merits also and does not call for any interference. So on merits also the contention raised by the petitioner is liable to be rejected. I do so. In the result, the Criminal Revision Petition is dismissed. Being an old case, there will, be a direction to the learned Magistrate to try and dispose of the case as expeditiously as possible. Crl.M.P.No.2675 of 2005 shall stand dismissed.