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2008 DIGILAW 733 (GAU)

Gurnam Singh v. Superintendent of Customs

2008-09-26

MAIBAM B.K.SINGH

body2008
JUDGMENT Maibam Binoy Kumar Singh, J. 1. Heard Mr. Nabneet Pawar and Mr. L. Shashibhushan, learned Counsel appearing for the Petitioner and Mr. N. Brojendro, learned Counsel appearing on behalf of the Respondent. 2. This criminal petition has been filed praying for quashing the Crl. (Complaint) Case No. 3 or 2006 of the court of Chief Judicial Magistrate, Imphal, which was initiated by taking cognizance of offences under Section 406, Indian Penal Code and Section 135 Customs Act as against the Petitioner by the learned Chief Judicial Magistrate, Imphal ('CJM') vide order passed on 23.1.2006 in Crl. Misc. Case No. 142 of 2005. 3. The said Crl. (Complaint) Case No. 3 of 2006 was filed by the Superintendent of Customs Preventive, New Checkon, Imphal alleging commission of offences under Section 406, IPC, Section117 of the Custom Act, 1962 as well as the offence under Section 135(1)(b)(ii) of the same Act. The allegations of the complainant are, in brief, as follows: 3.1 On 24.9.1993, the Customs Officers from the Headquarter (Customs) Preventive Unit, Shillong, seized, in pursuant to the order of the Collector/Commissioner of Customs, Preventive, in presence of witnesses, 2080 kgs. of cardomoms of foreign origin, valued at Rs. 6,24,000, packed in 52 gunny bags of 40 kqs. each and also 12,330 kgs. of Javitri (mace) of foreign origin, valued at Rs. 6,16,500, packed in 411 gunny bags of 30 kgs. each from one importer, namely, Ch, Ranjit Singh in connection with Seizure Case No. 10/CL/CUS/IMP/HOR-PREV/SH/93 and 68,000 kgs. of cloves of foreign origin, valued at Rs. 34,000,00, packed in 1700 bags of 40 kgs. each from another importer, namely, L. Haokip in connection with Seizure Case No. 11/CL/CUS/IMP/HOR-PREV/SH/93 under Section 11 of Customs Act and read with Import Control Order No. 17/55 dated 7.12.1955. 3.2 On the same day, i.e., on 24.9.1993, Shri Gurnam Singh (the present, Petitioner) executed a Supradnama thereby undertaking for safekeeping of the seized goods as he was personally closed to the two importers and also well known to the concerned Customs Inspector and as also there was no proper departmental storage place for keeping the seized goods. The Gurnam Singh received 68,000 kgs. of cloves valued at Rs. 34 lakhs, 2080 kgs. of small cardamoms valued at Rs. 6,24,000 and 12,330 kgs. of Javitri (mace) valued at Rs. 6,16,500 from the Inspector of Custom and Central Excise. The Gurnam Singh received 68,000 kgs. of cloves valued at Rs. 34 lakhs, 2080 kgs. of small cardamoms valued at Rs. 6,24,000 and 12,330 kgs. of Javitri (mace) valued at Rs. 6,16,500 from the Inspector of Custom and Central Excise. Shri Gurnam Singh undertook to produce the said goods whenever he was called upon to do so by the concerned authorities and to compensate the department of Customs and Central Excise in the event of his failure to keep the goods safe or to produce them when called upon to do so. 3.3 In the month of September, 1995, on enquiry and physical verification conducted by the officials of the Directorate of Revenue Intelligence, Imphal, it was found that the said Gurnam Sing had removed illegally 53,400 kgs. of cloves of the value of Rs. 26,70,000 and 2080 kgs. of cardamoms of value of Rs. 6,24,000 in violation of the undertaking under the Supradnama. 3.4 In early 1995, 12,330 kgs. of Javitri (mace) was released to one of the importers, namely, Shri Ch. Ranjit Singh from the custodian Gurnam Singh after realization of the redemption fine from the said importer, vide a direction dated 15.2.1995 from the Assistant Collector (Prev.), Collectorate of Customs (Prev.), N.E.R., Shillong given with reference to Adjudication Order No. CDI/CUS/COLLR/6/94 dated 22.7.1994. 3.5 A demand notice dated 5.9.1995 was given to the said Gurnam Singh asking him to pay a sum of Rs. 32,94,000 to the Department of Customs and Central Excise, Shillong, within 15 days from the date of the notice. The said Gurnam Singh failed to pay the said amount and as such, in exercise of the powers conferred by Clause (a) of Section 142(1) of the Customs Act, 1962, the Deputy Commissioner, Customs (Prev.), North Eastern Region, Shillong issued a detention order for recovery of the said amount by detaining and selling of goods of the said Gurnam Singh. 3.6 Even after about 10 years from the date of the above said demand notice, the said Gurnam Singh has not made himself available at his place at Imphal, He has also neither paid the amount nor has there has been any explanation shown by him. 3.7 There was entrustment under the Supradnama dated 24.9.1993. There was also disappearance/disposal/removal of 53,400 kgs. of cloves and 2080 kgs. 3.7 There was entrustment under the Supradnama dated 24.9.1993. There was also disappearance/disposal/removal of 53,400 kgs. of cloves and 2080 kgs. of cardamoms from the custody of the said Gurnam Singh for which he has not given any explanation, so far, nor has he made any attempt to make payment to compensate the value of the lost goods in spite of the notice given to him as far back as in the month of September 1995. These facts taken along with non-availability of the said Gurnam Singh at his place of residence show criminal intent on his part to defraud or to cause wrongful loss to the Government/Department. 4. It is alleged in the complaint petition that the said Gurnam Singh is liable for the offences under Section 406, IPC, Section 117 of the Custom Act, 1962 as well as under Section 135(1)(b)(ii) of the same Act. Further, it is alleged that the Commissioner of Customs (Preventive), North Eastern Region, Shillong, having jurisdiction over the whole of State of Manipur, in exercise of the powers conferred upon him under Section 137(1) of the Customs Act, 1962, accorded sanction for prosecution of the said Gurnam Singh in a competent court for the offence under Section 135(1)(b)(ii) of the Customs Act and Section 406 of the Indian Penal Code. A list of 24 documents was also enclosed with the complaint petition. 5. On the basis of the said complaint, the learned Chief Judicial Magistrate, Imphal took cognizance of the offence under Section 406, IPC and Section 135 of the Customs Act as against the said Gurnam Singh (the Petitioner) and secured the presence of the said accused by issuing process. The complaint is at a very initial stage. 6. Subject to the provisions of Chapter XIV of the Code of Criminal Procedure, 1973, under Section190(1)(a) of the Code of Criminal Procedure, the learned Chief Judicial Magistrate, Imphal was having jurisdiction to take cognizance of any offence upon receiving a complaint. In fact, the learned Chief Judicial Magistrate, Imphal was purportedly satisfied about making out a case for commission of offence under Section 106, IPC and Section 135 of the Customs Act on the basis of the said complaint and as such, he took cognizance of the said offences for further proceeding. In fact, the learned Chief Judicial Magistrate, Imphal was purportedly satisfied about making out a case for commission of offence under Section 106, IPC and Section 135 of the Customs Act on the basis of the said complaint and as such, he took cognizance of the said offences for further proceeding. As soon as the learned Chief Judicial Magistrate, Imphal applied his judicial mind to the offences stated in the complaint or took judicial notice of the said offences, cognizance was taken of the said offences. On a close reading of the complaint, it is clear that the ingredients of the said two offences are prima facie made out. As already noted above, the stage of the complaint is a very initial one. At that stage, the learned Chief Judicial Magistrate, Imphal, was not required to undertake an elaborate enquiry by sifting and weighing the materials nor was it necessary to delve deep into various aspects. Further, at the said stage, learned Chief Judicial Magistrate, Imphal was not concerned either with possible defence that the accused person might, make or any document which he might be thinking of producing in the course of proceeding of the case. The said stage is not even the stage of charge consideration wherein the court is supposed to consider if there is sufficient ground for proceeding against the accused. It is well settled that even at the stage of charge consideration, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. See State of Bihar v. Ramesh Singh (1997) 4 SCC 39, Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 . 7. It is well settled that exercise of powers under Section 482 of the Code of Criminal Procedure for quashing a case is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the test specifically laid down in the section itself. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) to give effect to an order under the Code, (2) to prevent abuse of the process of court and (3) to otherwise secure the ends of justice. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) to give effect to an order under the Code, (2) to prevent abuse of the process of court and (3) to otherwise secure the ends of justice. There is no dispute that it would be, the abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. It is well settled that the section is not an instrument handed over to an accused to short-circuit the prosecution and bring about its sudden death. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 8. In K.L.E. Society and Ors. v. Siddalingesh, (2008) 4 SCC 541 , the hon'ble Apex Court, after referring to its earlier decision in R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, held at p. 546, para No. 9 as follows: 9. As noted above, the powers possessed by the High Court under Section 482of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise to this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of the State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage, See Janata Dal v. H.S. Chowdhary and Ragghubir Saran (Dr.) v. State of Bihar. Of course, no hard-and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage, See Janata Dal v. H.S. Chowdhary and Ragghubir Saran (Dr.) v. State of Bihar. It would not be proper for the High Court to analyse the case case of the complaint in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would and in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegation in the Sight of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an informations lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. 9. In the light of the above said well-settled principles regarding quashing of a criminal complaint, the Petitioner's prayer is to be considered. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. 9. In the light of the above said well-settled principles regarding quashing of a criminal complaint, the Petitioner's prayer is to be considered. According to the Petitioner's counsel, in respect of the offence under Section 135(1)(b) of the Customs Act, 1962 alleged in the complaint petition, the prosecution under Section 135 of the said Act can be made only in respect of goods which are liable to confiscation at the relevant time under Section 111 of the said Act. In the instant case, according to the Petitioner's counsel, the goods were seized by officers of the Respondent and subsequently, the same were confiscated under Section 111(d) of the said Act vide Adjudication order dated 29.7.1994 in respect of the said Shri L. Haokip and order dated 22.7.1994 in respect of the said Shri Ranjit Smgh passed by the Commissioner of Customs. The failure of the concerned importers/owner of the goods to redeem the same by paying redemption fine, duty and penalty imposed, vide the aforesaid orders, as per Section 126 of the Act, the goods were vested to the Central Government. It is the case of the Petitioner that at the time commission of the alleged offences, the goods, which were alleged to have been misappropriated or removed by the Petitioner, had already been confiscated by the aforesaid orders and as such, the said goods belonged to the Central Government at the relevant time and they were not in the status of goods liable to confiscation. According to the Petitioner, since one of the essential ingredients of Section 135(1)(b) of the Customs Act, about the goods being in the status of liable to confiscation at the relevant time, being not satisfied, the proceeding initiated on the basis of the said complaint is liable to be quashed. In other words, according to the Petitioner, the complaint does not disclose the alleged offences under Section 135(1)(b) of the Customs Act and as such, the said proceeding is liable to be quashed. 10. In other words, according to the Petitioner, the complaint does not disclose the alleged offences under Section 135(1)(b) of the Customs Act and as such, the said proceeding is liable to be quashed. 10. On careful perusal of the complaint as well as enclosed documents, one cannot conclude reasonably that at the time of alleged misappropriation or removal of the goods, they were no longer in the status of liable to confiscation and that they had already been confiscated and as such, they had been vested to the Central Government. At this early stage of proceeding, the entire facts are incomplete and hazy and the evidence has not been produced before the court. The issues whether the goods had already been confiscated and as such whether they were no longer in the status of liable to confiscation at the relevant time of mis-appropriation or removal are of magnitude and cannot be seen in their true perspective without sufficient materials. It is to be noted that as per allegations in the complaint, the authorities came to know about the removal of the goods, i.e., 53,400 kgs. of cloves of the value of Rs. 26,70,000 and 2080 kgs. of cardamoms of the value of Rs. 6,24,000 in the course of inquiry and physical verification conducted in the month of September 1995. It is not however mentioned as to when the said removal of goods actually took place. On the basis of the materials produced before the court, it cannot reasonably be concluded that the said mis-appropriation or illegal removal of the goods took place after they had already been confiscated to the Central Government. Merely on the basis of the fact that 12,330 kgs. of Javitri (mace) were released to Shri Ch. Ranjit Singh after realization of redemption fine from the said importer vide direction dated 15.2.1995 of the Assistant Collector (Prev.), Collectorate of Customs (Prev.), NER, Shillong given with reference to Adjudication Order No. CDL/CUS/COLLR/6/94 dated 22.7.1994, one cannot reasonably conclude that the said 54,400 kgs. of cloves and 2080 kg. of cardamoms were still in the godown of the Petitioner on the date of the said release of 12,330 kgs. of Javitri (mace) to Shri Ch. Ranjit Singh and that the said misappropriation or removal took place only in between the above said date and the date of the physical verification. of cloves and 2080 kg. of cardamoms were still in the godown of the Petitioner on the date of the said release of 12,330 kgs. of Javitri (mace) to Shri Ch. Ranjit Singh and that the said misappropriation or removal took place only in between the above said date and the date of the physical verification. In order to ascertain the date of misappropriation or removal of the goods, evidence will have to be taken. I am not inclined at this stage to accept the submission of the learned Counsel of the Petitioner about the absence of one of the ingredients of the offence under Section 135(1)(b) of the Customs Act. 11. As regards the alleged offences under Section 406 of Indian Penal Code, on perusal of the complaint and documents before the learned Chief Judicial Magistrate, Imphal, I find prima facie case in respect of the said offence as against the Petitioner. In my opinion, no interference is called for at this stage regarding the initiation of proceeding for the commission of the said offence. 12. Another point submitted on behalf of the Petitioner is that since the complaint was filed after more than 10 years from the date of alleged commission of the offences and having regards to the nature of the offences, this complaint is time barred. In this connection, learned Counsel of the Petitioner draws this Court's attention to Chapter XXXVI of the Code of Criminal Procedure, 1973. As per Section 468 of the Code of Criminal Procedure, except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in Sub-section (2) after the expiry of three years if the offence is punishable with imprisonment for a term extending one year but not exceeding three years. The substantial sentence for the offence punishable under Section 406of Indian Penal Code as well as for the offences punishable under Section 135(1)(b)(ii) of the Customs Act, 1962 is imprisonment for a period of three years. Apparently, the complaint ought, to have been filed within a period of three years from the commission of the alleged offences. The substantial sentence for the offence punishable under Section 406of Indian Penal Code as well as for the offences punishable under Section 135(1)(b)(ii) of the Customs Act, 1962 is imprisonment for a period of three years. Apparently, the complaint ought, to have been filed within a period of three years from the commission of the alleged offences. So far as the alleged offence under Section 135(1)(b)(ii) of the Customs Act is concerned, by virtue of Section2 of the Economic Offence (Inapplicable of Limitation) Act, 1974, the said Chapter XXXVI of the Code of Criminal Procedure shall not be applicable to any offence punishable under any of the enactment specified in the Schedule of the said Act, 1974. The Customs Act, 1962 is one of the enactments specified in the Schedule of the said Act, 1974 and as such, Chapter XXXVI of the Code of Criminal Procedure shall not be applicable in respect of the alleged offence under Section 135(1)(b)(ii) of the Customs Act. In respect of the offence under Section 406 of Indian Penal Code, the said Chapter XXXVI of the Code of Criminal Procedure will be applicable. It is however to be noted that this issue of the complaint in inspect of the offence under Section 406 of Indian Penal Code having already been time barred, was never raised before the learned Chief Judicial Magistrate, Imphal. This issue will have to be decided after taking into consideration of the facts and circumstances of the case in the light of the provisions of Chapter XXXVI of the Code of Criminal Procedure. Bar to taking cognizance on the expiry of the period of limitation are dealt in Sections 468 and 473 respectively of the Code of Criminal Procedure. The point of commencement of the period of limitation in case of a continuing offence as embodied in Section 472 of Code of Criminal Procedure and in case of other than a continuing offence is contained in Section 469 of Code of Criminal Procedure. The provisions of exclusion of time in computing the period of limitation are incorporated in Section 470, 471 of Code of Criminal Procedure. In respect of Section 473, Code of Criminal Procedure, which deals with extension of the period of limitation, the hon'ble Apex Court held in Arun Vyas and Anr. v. Anita Vyas, (1999) 4 SCC 690 para 14 as follows: 14. In respect of Section 473, Code of Criminal Procedure, which deals with extension of the period of limitation, the hon'ble Apex Court held in Arun Vyas and Anr. v. Anita Vyas, (1999) 4 SCC 690 para 14 as follows: 14. It may be noted here that Section 473, Code of Criminal Procedure which extends the period of limitation is in two parts. The first part, contains a non obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. The first limb confers power on every competent court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the cases that the delay has been properly explained and the second limb empowers such a court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression "in the interest of justice" in Section 473cannot be interpreted to mean in the interest of prosecution. What the court has to see is "interested of justice". The interest of justice demands that the court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the courts, in case of delayed complaints, to construe liberally Section 473, Code of Criminal Procedure in favour of a wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying the rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the court may take cognizance of an offence after the expiry of the period of limitation in the interests of justice. This is only illustrative, not exhaustive. 13. The issue if a complaint in respects of the offence under Section 406 of Indian Penal Code has been time barred or not will have to be decided by taking into consideration of all the relevant fact and circumstances in the light of the provisions of Chapter-XXXVI of Code of Criminal Procedure. This is only illustrative, not exhaustive. 13. The issue if a complaint in respects of the offence under Section 406 of Indian Penal Code has been time barred or not will have to be decided by taking into consideration of all the relevant fact and circumstances in the light of the provisions of Chapter-XXXVI of Code of Criminal Procedure. Any decision regarding the above said issue without, consideration of the provision of Sections 472 and473 of Code of Criminal Procedure will be deficient and defective decision. This issue ought to have been raised before the learned Chief Judicial Magistrate, Imphal first, this Court is not inclined to consider the said issue which was never raised before the learned Chief Judicial Magistrate, Imphal and as such, the said point regarding the complaint having been time barred is not accepted. At this stage and on the basis of materials before the court, I am not in a position to decide the said issue. 14. As already noted, the complaint is at a very initial stage, no evidence has been produced and the facts are incomplete and hazy. At the stage of charge consideration, the learned Chief Judicial Magistrate, Imphal will be in a position to decide if the Petitioner is entitled to be discharged in respect of the offence under Section 406 of Indian Penal Code on the ground that taking cognizance of the said offence has already been barred by limitation and also in respect of the offence under Section135 of the Customs Act on the ground of having not made out a prima facie about it. 15. At this early stage of the proceeding of the case and on the basis of the materials before the court, it cannot be conclude reasonably that there was only failure on the part of the Petitioner to honour the terms of the said Supradnama and that he had not committed any of the alleged offence. 16. In the result, having regards to all the relevant consideration, the prayer of the Petitioner for quashing the proceeding of the complaint case, viz., Crl. (Complaint) Case No. 3 of 2006 at this initial stage is rejected. Send the trial court's records back to the court of the learned CJM, Imphal along with a copy of this order for proceeding of the said complaint case expeditiously in accordance of law.