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2008 DIGILAW 465 (PAT)

Abu Zafar @ Md. Zaffar v. Union Of India

2008-03-05

ABHIJIT SINHA

body2008
Judgment 1. The petitioner who has been impleaded as one of the accused in G.0.71/82 (Samastipur)/Trial No. 210 of 2006, is aggrieved by order dated 21.12.1989 passed therein by the learned Presiding Officer, Special Court, Economic Offences, Muzaffarpur, whereby he has taken cognizance of the offences against the petitioner which have not been stated in the order and has directed for issuance of summons to him and has prayed for quashing of the same. 2. It appears that a written complaint was filed by one K.K. Jha, Assistant Collector, Customs Division, Muzaffarpur, on 15.7.1982 stating therein that the petitioner had violated Government of India Notification No. 76/Cus/ 65 dated 19.6.1965 issued under Section 11 of the Customs Act, 1962 read with Section 3(1) of Import and Export Control Act, 1947, punishable under Section 135 of the Customs Act, 1962 . 3. The facts giving rise to the allegation as stated in the complaint petition is that the Customs Preventive Staff of Samastipur checked Bus No. WMH-75 plying between Siwan and Kolkata on 1.7.1979 at 4.30 P.M. on National Highway near Rupauli and intercepted a passenger who gave out his name Nadim Raza and from his possession contraband goods such as mercury calculator of Japan, ladies wristwatch of third country origin, cassettes and goods were allegedly recovered of the value of Rs. 31,310/- and as Nadim Raza could not produce any documents authorizing his possession of those goods there were reasons to believe that the same were being smuggled. It is further stated that the said Nadim Raza confessed his guilt and stated that he had purchased the goods from Birganj (Nepal) and also divulged that the financier of the above goods is Md. Jaffar who was the brain behind the smuggling. It has also been submitted that the Additional Collector of Customs, Indo Nepal Border, Muzaffarpur, had accorded sanction for prosecution under Section 135 of the Customs Act. 4. It has been submitted by the learned counsel for the petitioner that from perusal of order taking cognizance dated 21.12.1989, it is clear that the Special Court has not stated the offence whereunder cognizance was being taken although- the complaint had been filed under Section 135 of the Customs Act. 5. One cannot feel aggrieved under the above circumstances since cognizance is taken of a case and not under particular Sections of penal law. 5. One cannot feel aggrieved under the above circumstances since cognizance is taken of a case and not under particular Sections of penal law. As held in M.K. Agrawal vs. State of Bihar reported in 2002(2) PLJR 28 , it is for the Trial Court to consider as to what offences are made out and under what heads of criminal offences charges should be framed. 6. It was further submitted that it would also appear from the perusal of the order impugned that the records of G.O. Case No. 106 of 1979 was not available before the Court and notwithstanding the same cognizance of the offence had been taken against the petitioner. Referring to the order-sheet between 21.12.1989 to 17.8.2006 which has been appended as Annexure-2 to this application, the learned counsel for the petitioner sought to submit that it would be apparent from perusal of order dated 23.6.1993 that in this case the prosecution report had not submitted and it was awaited. It has also been submitted that earlier by order dated 2.12.1989 cognizance had been taken but the same had been overlooked by the Bench Clerk and summons was directed to issue for the first time on 20.7.1993 and although repeated orders had followed for issuance of summons, the fact remains that no summons was issued and notwithstanding the same warrant of arrest non-bailable was issued on 17.3.1994 but neither any execution report of the warrant nor the warrant itself had been received in Court till 17.8.2006. 7. The learned counsel for the petitioner has submitted that admittedly the complaint under Section 135 of the Customs Act and sub-section (1)(b)(i) of Section 135 of the Customs Act clearly indicates that in case of offence relating to any of the goods the market price where of exceeds one lac of rupees then punishment shall be imprisonment for a term which may extend to 7 years and with fine and Section (1)(b)(ii) thereof provides that in any other case the punishment shall be imprisonment for a term which may extend to three years or fine or both. On the aforesaid premise the learned counsel has sought to submit that the value of these goods allegedly seized, as per the prosecution is Rs. On the aforesaid premise the learned counsel has sought to submit that the value of these goods allegedly seized, as per the prosecution is Rs. 31,310/- and as such the case of the petitioner even if accepted to be true would fall within the ambit of Section 135(1)(b)(ii) of the Customs Act and the maximum punishment would only be for three years or fine or both. 8. The further submission of the learned counsel for the petitioner is that taking cognizance is barred under the provisions of Section 468 Cr.P.C. as the complaint dated 1.7.1979 was filed on 15.7.1982 beyond a period of 3 years and cognizance was taken on 21.12.1989 almost after 10 years. It has further been submitted that the aforesaid goods were confiscated under Section 119(d) of the Customs Act and the petitioners were each imposed penalty under Section 112 of the Customs Act of Rs. 1000/- each by order dated 15.5.1980 of the Additional Collector of Customs, Muzaffarpur, a copy whereof has been appended as Annexure-3 to this application. Against the said order the petitioner had filed an appeal before the Government of India, Central Board of Excise and Customs, New Delhi and by order dated 29.4.1982, the appeal filed by the petitioner has been allowed and the penalty of Rs. 1000/- imposed upon the petitioner was accordingly set aside by Member, Central Board of Excise and Customs. A copy of the said order is appended as Annexure-4 to the application. 9. It will not be out of place to mention here that the Courts in India have been unanimous in their opinion that when once the order of adjudication/assessment is set aside or quashed and the assesses contention is accepted and upheld by the Tribunal or Board, the orders of the Tribunal or Board must be. taken as the basis for quashing the proceeding arising from prosecution launched by the Revenue. Gainful reference can be made to the cases of Patna Guini House vs. Commissioner of Income Tax, reported in (2000)324 ITR 274, Ashirvaad Enterprises vs. State of Bihar, reported in (2004)266 ITR 578 and K.C. Builders vs. Assistant, CIT, reported in (2004)265 ITR 562. 10. in the instant case for the alleged offence the petitioner was imposed with a penalty of Rs. 10. in the instant case for the alleged offence the petitioner was imposed with a penalty of Rs. 1000/- by the Additional Collector of Customs, Muzaffarpur which was set aside by the Appellate Authority, namely, Member, Central Board of Excise and Customs. Therefore, once the alleged offence and penalty thereunder has been set aside by the higher authority then the petitioner cannot be subjected to a further prosecution in the criminal Courts. In the instant case, the prosecution of the petitioner would be an abuse of the process of the Court. Even the taking of cognizance appears to be barred by limitation and taking of cognizance without the availability of the case records cannot be sustained in law. 11. Due regard being had to the facts and the circumstances of the case and the discussions made above, the impugned order taking cognizance is hereby set aside and the application is allowed.