2015 (9) TMI 814 - HC - Customs

Evasion of Duty Necessity of sanction under Section 155, Cr.P.C Respondent was prosecuted for offence punishable under Section 135 of Customs Act, 1962, however by judgment, respondent came to acquitted Petitioner submitted that requirement of sanction under section 155 of Cr.P.C was not followed Whether sanction under Section 155(2), of Magistrate was necessary, before investigation into non-cognizable offence can be conducted Held that - It is trite that Courts do not embark or attempt to decide questions, which are purely of academic nature Even if view taken by Magistrate, insofar as requirement of sanction under Section 155 of Cr.P.C is reversed, fact that order of adjudication is set aside by CESTAT would come in way of appellant In view of matter, appeal disposed of.

Summary

Issues:
1. Necessity of sanction under Section 155(2) of the Code of Criminal Procedure before investigation into a non-cognizable offence.
2. Impact of the order of adjudication being set aside by Central Excise Sales Tax Appellate Tribunal (CESTAT) on the case.

Analysis:

Issue 1:
The appellant contended that the learned Magistrate needed sanction under Section 155(2) of the Cr.P.C before conducting an investigation into a non-cognizable offence. The appellant relied on Supreme Court decisions to argue that a 'Customs Officer' should not be considered a 'Police Officer' for the purposes of Section 155. However, the respondent did not oppose any relief sought by the appellant regarding the order of acquittal. The court acknowledged the argument but decided not to delve into the academic question, as even if the Magistrate's view on the need for sanction was reversed, the setting aside of the adjudication order by CESTAT would still impact the case. The court kept the question open for future consideration, allowing parties to present their arguments when necessary.

Issue 2:
The second issue revolved around the effect of the CESTAT setting aside the order of adjudication on the case. The appellant argued that since the adjudication order was overturned, nothing substantial remained in the proceedings. The court recognized this argument but emphasized that the ultimate decision on the necessity of sanction under Section 155 of Cr.P.C was not crucial due to the impact of the CESTAT's ruling. The court disposed of the appeal, maintaining that the academic question regarding sanction for investigation under Section 155 of Cr.P.C was left open for future deliberation, providing parties with the opportunity to address the issue before the appropriate court when required.

In conclusion, the judgment addressed the issues of sanction under Section 155(2) of the Cr.P.C and the impact of the CESTAT's decision on the case. The court refrained from deciding the academic question on sanction due to the overriding effect of the CESTAT's ruling. The appeal was disposed of with the observation that the question of sanction was kept open for future consideration as needed.