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Gujarat High Court · body

2015 DIGILAW 756 (GUJ)

Clifford Antony D'costa v. State of Gujarat

2015-08-03

ABHILASHA KUMARI

body2015
Judgment Abhilasha Kumari, J. 1. Prosecutor, waives service of notice of Rule for respondent No. 1 and Mr. Hriday Buch, learned Standing Counsel for respondent No. 2, waives service of notice of Rule on behalf of the said respondent. Considering the facts and circumstances in which the matter has arisen, it is being heard and decided finally, at this stage, with the consent of the learned counsel for the respective parties. 2. This petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 ("the Code") has been preferred, inter alia, with a prayer to quash and set aside the common order dated 30.04.2015, passed below Exhibits 1, 2 and 3, in connection with the FIR, being I-C.R. No. 15/2015, registered with Detection of Crime Branch, Ahmedabad (DCB), by the learned Additional Chief Metropolitan Magistrate, Court No. 11, Ahmedabad, whereby the custody of the petitioners has been granted to respondent No. 2 - Department of Revenue Intelligence ("DRI" for short), as well as the judgment and order dated 14.07.2015, passed by the City Sessions Court, Ahmedabad, below Ex.12 in Criminal Revision Application No. 145 of 2015, whereby the above order of the learned Additional Chief Metropolitan Magistrate was modified to the extent that the custody of the petitioners was granted to respondent No. 2 for a period of fifteen days. 3. Briefly stated, the facts of the case are that the above-mentioned FIR came to be registered by the Special Operations Group (SOG), DCB Crimes, Ahmedabad, under Sections 406, 420, 411 and 120B of the Indian Penal Code, 1860 (IPC), on 24.02.2015. Later on, Sections 467 and 471 of the IPC were added. As per the case of the prosecution, it had specific information that certain passengers travelling from Dubai through Emirates Airways, were going to clear gold bars clandestinely. They, therefore, kept a watch at Airport Terminal No. 2, at Ahmedabad. It is further the case of the prosecution that six persons were arrested at the Airport, along with the gold bars. Out of the six, three were passengers and two persons had come to take the delivery of the gold bars. Upon a search being carried out, sixty gold bars, weighing 59.993 Kg, valued at Rs. 16,19,82,855/-, were found in the baggage that had been clandestinely cleared from the Immigration Center. Out of the six, three were passengers and two persons had come to take the delivery of the gold bars. Upon a search being carried out, sixty gold bars, weighing 59.993 Kg, valued at Rs. 16,19,82,855/-, were found in the baggage that had been clandestinely cleared from the Immigration Center. The passengers were taken to the office of SOG, DCB Crime, and further investigation was conducted. All six persons came to be arrested. After investigation, a Chargesheet was filed under Sections 406, 420, 411,468, 471 and 120B of the IPC. 4. Respondent No. 2 (DRI) moved an application on 04.03.2015 below Ex.1, inter-alia, praying for the custody of the accused by a transfer warrant, for inquiry, as there was material to give rise to a reasonable belief that the accused have committed offences under Sections 132 and 135 of the Customs Act, 1962 ("the Customs Act"). On 05.03.2015, respondent No. 2 preferred another application below Ex.2 inter-alia, praying that the 'Muddamal' (case-property) as shown in the Police case property receipt be handed over to it. The application at Exhibit 3 was moved by respondent No. 2 with a prayer to hear the above two applications simultaneously. 5. Respondent No. 2 had earlier filed an application dated 26.02.2015, seeking permission from the learned Additional Metropolitan Magistrate, to permit it to inquire into the matter and conduct an investigation under the provisions of the Customs Act. This application was withdrawn on 27.02.2015. The learned Additional Chief Metropolitan Magistrate allowed the applications at Exhibits 1, 2 and 3, preferred by respondent No. 2 by an order dated 30.04.2015 and directed that the custody of the accused persons, who were in judicial custody, as well as the case property to be handed over to respondent No. 2. 6. The petitioners filed Special Criminal Application No. 3094 of 2015 before this Court, challenging the above order. The said petition was withdrawn, with liberty to approach the Sessions Court by way of a revision application. The petitioners, therefore, preferred the above-mentioned revision application before the City Sessions Court, challenging the order dated 30.04.2015 passed by the learned Additional Metropolitan Magistrate. The petitioners filed Special Criminal Application No. 3094 of 2015 before this Court, challenging the above order. The said petition was withdrawn, with liberty to approach the Sessions Court by way of a revision application. The petitioners, therefore, preferred the above-mentioned revision application before the City Sessions Court, challenging the order dated 30.04.2015 passed by the learned Additional Metropolitan Magistrate. The City Sessions Court partly-allowed the revision application by modifying the order of the learned Additional Metropolitan Magistrate, to the extent that the period of custody was specified, and directed that the custody of the petitioners be handed over to respondent No. 2 for a period of fifteen days. This order, to the extent that it directs that the custody of the petitioners be granted to respondent No. 2, is under challenge before this Court. 7. Mr. Chetan K. Pandya, learned advocate for the petitioners, has submitted that the petitioners herein were the passengers who travelled from Dubai to Ahmedabad through Emirates Airways. He has contended that the impugned order, insofar as it directs the custody of the petitioners to be given to respondent No. 2 for a period of fifteen days, is contrary to law. It is submitted that the DRI cannot have the custody of the petitioners for more than twenty-four hours, without arresting them. Moreover, they cannot have the custody without the issuance of summons under Section 108 of the Customs Act. If, at all, they want the custody of the petitioners beyond twenty-four hours, they have to arrest the petitioners and produce them before the Magistrate and ask for remand. In the present case, the petitioners are already in judicial custody, therefore, custody cannot be granted to the DRI without first arresting the petitioners. 8. That, in the application filed before the Court of learned Additional Chief Metropolitan Magistrate, the DRI has not made out any grounds for grant of custody for more than twenty-four hours and nor they had declared that they want to arrest the petitioners. 9. That respondent No. 2 had earlier filed an application for the custody of the petitioners which was withdrawn without reserving liberty. Without mentioning this fact, respondent No. 2 filed the second application. 10. That, there are no provisions in the Customs Act or the Code, to have the custody for fifteen days, without arresting the petitioners. 11. 9. That respondent No. 2 had earlier filed an application for the custody of the petitioners which was withdrawn without reserving liberty. Without mentioning this fact, respondent No. 2 filed the second application. 10. That, there are no provisions in the Customs Act or the Code, to have the custody for fifteen days, without arresting the petitioners. 11. It is further submitted that the reasoning of the Court in the impugned order is not in accordance with law and, therefore, the impugned order granting fifteen days' custody to the DRI, deserves to be set aside. 12. It is contended that there is no FIR or complaint against the petitioners for the evasion of customs duty. The FIR has been filed by the SOG, for offences under the IPC; therefore, the DRI cannot be granted custody without following the provisions of the Customs Act and arresting the petitioners. 13. On the above grounds, it is prayed that the petition be allowed. 14. Mr. Hriday Buch, learned Standing Counsel for respondent No. 2 (DRI) has submitted that in the application preferred by the petitioners before the Sessions Court, the only objection taken was on the ground of double jeopardy, which has been negatived. That, the submissions advanced by the learned advocate for the petitioners are in the nature of a ghost created by the petitioners which they want the DRI to kill. The provisions of Section 104(3) of the Customs Act are absolutely clear. Once any person is arrested, the provisions of the Code would be attracted. If the provisions of the Code do not permit having custody for more than twenty-four hours, the DRI cannot go against the said provisions and would have to produce the petitioners within twenty-four hours before a Magistrate and seek further remand. This contention has been accepted by the Sessions Court, therefore, there is no need to bring up this aspect again, before this Court. 15. It is further submitted that the petitioners are in judicial custody at present, therefore, it was not possible for the DRI to arrest them. The DRI, therefore, had no other option but to file an application with a prayer to grant the custody of the petitioners as a person in judicial custody under the orders of the Court, cannot be arrested without obtaining orders from the Court. 16. The DRI, therefore, had no other option but to file an application with a prayer to grant the custody of the petitioners as a person in judicial custody under the orders of the Court, cannot be arrested without obtaining orders from the Court. 16. It is contended that the contention of the learned advocate for the petitioners regarding summons not being issued under Section 108 of the Customs Act is irrelevant, as the petitioners are already in judicial custody. They could not have responded to the summons, even if they had been issued. This fact is known to the DRI as well as the petitioners themselves, therefore the issuance of summons during the period when the petitioners were in judicial custody would have been nothing but an empty formality. The only course open, at this stage, is to seek the permission of the Court for the custody of the petitioners, which course has been adopted, in accordance with law. 17. That, the contention regarding the withdrawal of the earlier application has been negatived by both the courts below, as the said application was not withdrawn simpliciter but for the reason that discussions on the modalities regarding the future course of action were going on with the police department. Factually, the petitioners were on remand on 27.02.2015, on which day, the application was withdrawn at the stage when the inquiry was going on. 18. It is submitted that upon the completion of the investigation into the offences under the IPC, a Chargesheet has been filed. At that stage, the petitioners were in judicial custody. Thereafter, the second application was filed, when the petitioners were no longer required for interrogation for offences under the IPC. 19. That, the material on record clearly reveals that the offence under Section 135 of the Customs Act is made out against the petitioners. Looking to the value of the gold bars, the offence is non-bailable and, in this view of the matter, the courts below have not committed any illegality in handing over the custody of the petitioners as well as the case-property, to the DRI. 20. It is further submitted that the DRI is bound to follow the provisions of Section 104 of the Customs Act, read with the provisions of the Code. 20. It is further submitted that the DRI is bound to follow the provisions of Section 104 of the Customs Act, read with the provisions of the Code. The contention of the learned advocate for the petitioners regarding the number of days in custody would, therefore, have no significance as the law would take its own course. It is submitted that today, that eventuality has not arisen that the DRI has kept the petitioners in custody without following the procedure, as the custody has not yet been handed over. It is contended that the contention raised by the learned advocate for the petitioners to this effect, is premature. 21. On the basis of the above submissions, it is prayed that the petition be rejected. 22. In rebuttal, Mr. Chetan K. Pandya, learned advocate for the petitioners, has reiterated his arguments that the DRI cannot have the custody of the petitioners for a period over twenty-four hours. 23. Mr. L.B. Dabhi, learned Additional Public Prosecutor, for respondent No. 1 - State of Gujarat, has submitted that the petitioners have been arrested by the SOG and then sent to judicial custody. It would not have been possible to release them from judicial custody, or grant their custody to any other department, including the DRI, without the order of the Court. Therefore, as the order of the Court was necessary, the DRI has filed the application for grant of custody of the petitioners, which has been allowed. Hereinafter, the procedure under the Customs Act, read with the provisions of the Code, would follow and the order would be executed. 24. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned orders and other documents on record. 25. At this stage, it would be fruitful to refer to the relevant provisions of the Customs Act. 26. Section 104(1) and (3) are reproduced hereinbelow: "104. 24. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned orders and other documents on record. 25. At this stage, it would be fruitful to refer to the relevant provisions of the Customs Act. 26. Section 104(1) and (3) are reproduced hereinbelow: "104. Power to arrest-- (1) If an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs has reason to believe that any person in India or within the Indian Customs waters has committed an offence punishable under section 132 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2)......... (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of the releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4)......... (5)......... (6)......... (7)........." 27. As per the provisions of sub-section (3) of Section 104 of the Customs Act, after the arrest of the person under sub-section (1), the provisions of the Code shall be applicable, as in the case of an arrest by an officer-in-charge of a Police Station. This means that the arrested person would have to be produced before a Magistrate within 24 hours of his arrest and his custody can, thereafter, be sought by seeking remand. 28. Section 108 of the Customs Act contains the power to issue summons and reads as under: "108. Power to summon persons to give evidence and produce documents- (1) Any gazetted officer of customs 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 under this Act. (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 the 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 the 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 section 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 section 193 and section 228 of the Indian Penal Code (45 of 1860)." 29. Section 135 pertains to the evasion of duty or prohibitions. The provisions relevant to the case in hand read as follows: "135. Evasion of duty or prohibitions - [(1)] Without prejudice to any action that may be taken under this Act, if any person - (a)......... (b)......... (c)......... (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,-- (i) in the case of an offence relating to,-- (A)......... (B)......... (C)......... (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine...." 30. In the present case, the customs duty on the gold bars recovered from the petitioners would exceed rupees fifty lakhs, therefore the offence is cognizable and can attract punishment, as provided in law. 31. The learned advocate for the petitioners has contended that as per Section 108 of the Customs Act, summons ought to have been issued to the petitioners, which has not been done. It may be noted that the petitioners were arrested on 24.02.2015 by the SOG, DCB Crimes, Ahmedabad, in connection with alleged commission of offences under the IPC. 31. The learned advocate for the petitioners has contended that as per Section 108 of the Customs Act, summons ought to have been issued to the petitioners, which has not been done. It may be noted that the petitioners were arrested on 24.02.2015 by the SOG, DCB Crimes, Ahmedabad, in connection with alleged commission of offences under the IPC. They were in judicial custody at the time when respondent No. 2 made an application for grant of their custody in connection with the alleged commission of offences under the Customs Act. It has not been denied by the learned advocate for the petitioners that the recovery of sixty gold bars, weighing 59,993 kg. valued at Rs. 16,19,82,855/- would fall under the provisions of Section 135 of the Customs Act. Respondent No. 2 seeks the custody of the petitioners under the Customs Act, in connection with the offences allegedly committed under the special statute. It would have nothing to do regarding the offences committed under the IPC. 32. It so happened that the petitioners were already in judicial custody at the time when respondent No. 2 moved the first application dated 26.02.2015 (Annexure-C to the petition). Respondent No. 2 sought permission from the concerned Court to further inquire into the matter and conduct investigation in the case under the provisions of the Customs Act in the presence of the accused persons who are in judicial custody. This application was withdrawn by an application dated 27.02.2015, for the reason that discussion on the modalities regarding the future course of action were going on with the police department. Another application dated 04.03.2015, was moved by respondent No. 2, for the custody of the petitioners by way of a transfer warrant. The impugned orders of both the courts below have been passed on this application. 33. It is required to be kept in mind that the petitioners were in judicial custody at the relevant point of time, therefore, the procedure of issuing summons under Section 108, which requires the attendance of the person summoned, could not have been resorted to, on the facts of the present case. It would remain an empty formality. The submission advanced by the learned advocate for the petitioners that the petitioners could not have been arrested as they were never summoned, is unconvincing. It would remain an empty formality. The submission advanced by the learned advocate for the petitioners that the petitioners could not have been arrested as they were never summoned, is unconvincing. More so, because respondent No. 2 has not arrested them in connection with offences under the Customs Act, as empowered by Section 104. It is the SOG, DCB Crimes, that has arrested the petitioners for offences under the IPC. The nature of both types of offences is distinct, as is the substantive law governing them. 34. The provisions of Section 104 of the Customs Act are independent of the provisions of Section 108. It is nowhere stated in Section 104 that a person who has not been summoned under Section 108, cannot be arrested. Both Sections104 and 108 fall in Chapter XIII of the Customs Act, under the heading of "Searches, Seizure and Arrest". While Section104 contains the power to arrest, Section 108 pertains to the issuance of summons to a person to give evidence and produce documents. In the scheme of the Customs Act, Section 104 precedes Section 108, which indicates that the power to arrest can be exercised independently of, and even before, the issuance of summons. There is no bar in Section 104that prevents the arrest of a person to whom summons have not been issued under Section 108. The power contained in both Sections 104 and 108 can be exercised independently and does not overlap. 35. It is clear from the provisions of sub-section (3) of Section 104 that after the arrest of a person under sub-section (1) the provisions of the Code shall apply for the purpose of releasing such person on bail or otherwise. The custody of the petitioners has been granted to respondent No. 2 by the Sessions Court for a period of fifteen days, but has not been handed over, so far. The rights of the petitioners under sub-section 104 of the Customs Act cannot be curtailed and to this extent, the judgment and order of the Sessions Court is required to be modified. The position regarding the applicability of the provisions of the Code has been conceded by Mr. Hriday Buch, learned Standing Counsel for respondent No. 2. 36. The rights of the petitioners under sub-section 104 of the Customs Act cannot be curtailed and to this extent, the judgment and order of the Sessions Court is required to be modified. The position regarding the applicability of the provisions of the Code has been conceded by Mr. Hriday Buch, learned Standing Counsel for respondent No. 2. 36. Considering that the offences alleged against the petitioners are squarely covered by the provisions of the Customs Act, the grant of the custody of the petitioners to respondent No. 2 by the Sessions Court, cannot be faulted, as the matter requires investigation. It only remains to be clarified that after the custody is handed over, the petitioners are required to be dealt with, under the provisions of sub-section (3) of Section 104 of the Customs Act. 37. For the aforestated reasons, the following order is passed: "The judgment and order dated 14.07.2015, passed by the City Sessions Court, Ahmedabad, below Ex.12 in Criminal Revision Application No. 145 of 2015, is modified to the extent that the custody of the petitioners shall be handed over to respondent No. 2, subject to the provisions of Section 104(3)of the Customs Act, 1962." 38. The petition is partly-allowed in the above terms. Rule is made absolute, accordingly. 39. Direct Service is permitted.