2011 (1) TMI 1433 - HC - Customs

Power to summon persons to give evidence and produce documents - If learned ACMM considers some witnesses had been left out, instead of using its power of summoning additional witnesses under Section 311 Cr. P.C. during trial and to see that the culprit are punished, the learned ACMM seemed to have acted more like a Clerk than like a Judge and was happy in discharging everybody on the ground that there was no investigation on the point how the goods were allegedly exported, who were the officers posted at Customs Port at the relevant time and what goods were exported. - A Judge has power to summon additional evidence suo moto and has also power to question the witnesses and if he finds that investigation was mis-directed, the Judge can still ensure that necessary witnesses are summoned in the Court and examined - The parties are directed to appear before the Court of ACMM on 15th January, 2011

Summary

Issues:
1. Validity of order discharging the accused by the Additional Chief Metropolitan Magistrate (ACMM).
2. Consideration of evidence and sanctioning authority's role in prosecution.
3. Adequacy of evidence and investigation in the case.
4. Duties of the Judge in ensuring fair trial and summoning additional witnesses.
5. Comparison with a similar order in a previous case regarding sanction.

Analysis:

1. The High Court reviewed a Revision Petition challenging the order discharging the accused by the ACMM. The ACMM's order was criticized for questioning the sanctioning authority's process, which was deemed unnecessary and beyond the authority's scope. The High Court expressed surprise at the ACMM's observations and emphasized that the sanctioning authority's role is to grant prosecution sanction based on the facts presented, without detailing the sources of information.

2. The ACMM's reliance on a retracted statement under Section 108 of the Customs Act as the sole evidence was questioned by the High Court. The Court noted that there was a sequence of circumstantial evidence from departmental witnesses supporting the prosecution's case. The ACMM's failure to consider this evidence and his emphasis on the lack of investigation raised concerns about the adequacy of the judgment.

3. The complaint revealed collusion between the accused and certain customs officers to evade duties, implicating the officers as well. The High Court criticized the ACMM for not utilizing the power to summon additional witnesses under Section 311 Cr. P.C. during the trial. The Court highlighted the Judge's duty to ensure fair trials, summon additional evidence, question witnesses, and prevent criminals from escaping justice on technical grounds.

4. In a related judgment involving a similar issue of sanction, the High Court set aside the ACMM's order, deeming it illegal and contrary to the record. The parties were directed to appear before the ACMM for framing charges and trial proceedings to continue. The comparison with the previous case underscored the importance of following legal procedures and ensuring a fair trial.

This detailed analysis of the judgment highlights the High Court's scrutiny of the ACMM's decision, emphasizing the need for thorough consideration of evidence, adherence to legal procedures, and the Judge's responsibility in ensuring justice is served.