2008 (5) TMI 435 - HC - Customs

Original documents have been misplaced by the concerned officer and are not traceable - Callous and negligent manner of the Customs Department in handling its inquiries and consequent filing of the complaints in the court of law without the original documents - only pre-charge evidence available before the Magistrate for consideration for framing of charge was oral evidence not supported by any documentary evidence Held that - nature of oral evidence recorded by the court without any proper support from documents, the trial court as well as the revisional court erred in holding that prima facie case under Section 135(1)(b) of the Customs Act was made out against the present Petitioner - there should be strong suspicion created in the mind of the court from the material available on the record, the possibility of the Petitioner having committed the offence cannot be ruled out and need to be reversed orders set aside.

Summary

Issues:
Petitioner challenging order of charge under Section 135(1)(b) of the Customs Act, 1962 based on lack of evidence and mishandling of original documents by Customs Department.

Analysis:
1. Allegations and Trial Proceedings:
The Petitioner was facing trial for an offence under Section 135(1)(b) of the Customs Act, 1962 based on a search conducted in a godown where certain goods were seized. The trial court took cognizance of the complaint and fixed the case for pre-charge evidence. The charge was passed against the Petitioner, leading to a revision petition seeking quashing of the order.

2. Arguments of Petitioner's Counsel:
Petitioner's counsel argued that the recovery of goods was not proven, and there was no evidence against the Petitioner. It was contended that the impugned order of charge was passed without supporting evidence, and therefore, there was no basis to frame the Petitioner for the alleged offence. Reference was made to a relevant case law to support the arguments.

3. Response of Respondent's Counsel:
The Respondent's counsel refuted the submissions made by the Petitioner's counsel.

4. Court's Consideration of Submissions:
The Court considered the arguments presented by both sides and examined the record.

5. Missing Original Documents:
It was revealed that crucial original documents related to the case, including search memos and statements, were not placed on record. The Customs Department had misplaced these documents, indicating negligence in handling inquiries and court filings.

6. Lack of Documentary Evidence:
The pre-charge evidence available was solely oral and lacked documentary support. The absence of documentary evidence undermined the credibility of the oral evidence presented before the Magistrate.

7. Dismissal of Application for Secondary Evidence:
An application to lead secondary evidence due to the loss of original documents was dismissed by the court in a previous order, which was not challenged further and became final.

8. Error in Applying Legal Principle:
The Additional Sessions Judge failed to correctly apply legal principles to the case. The lack of evidence raised serious doubts about the Petitioner's involvement in the alleged offence, and the courts erred in framing the charge without sufficient material.

9. Failure to Establish Prima Facie Case:
Due to the absence of proper documentary evidence, the prosecution failed to establish a prima facie case against the Petitioner under Section 135(1)(b) of the Customs Act.

10. Reversal of Findings:
The Court held that the trial court and the revisional court's findings were against established legal principles. As there was no strong suspicion or evidence indicating the Petitioner's guilt, the orders of 19-4-2007 and 16-7-2007 were set aside.

11. Final Decision:
The petition was allowed, and the challenged orders were overturned. An attested copy of the order was directed to be sent to the trial court and the State.