2016 (9) TMI 875 - HC - Customs

Validity of criminal revision - summon of revisionist under section 135 of the Customs Act 1962 - raid - search of godown - Chinese silk yarn - seizure under Section 11 of Act 1962 - recording of statement Sections 107 and 108 of Act 1962 - summon of four persons who were alleged to be partner in smuggling under Section 108 of Act 1962 - Held that - Here is a case at a nascent stage when on the basis of complaint made by a Public Servant i.e. Assistant Commissioner (Customs) Varanasi alleging that accused-revisionists have committed an offence under Section 135 of Act 1962 Magistrate has summoned revisionists against whom allegations have been made in the compliant that these are the persons who have committed offence under Section 135 of Act 1962. In order to form opinion prima facie at this stage Magistrate is supposed to look into the allegations contained in the complaint and the material placed along with it which in the present case include seizure memo confessional statement of Vijay Kumar as well as statements of accused-revisionists which have been looked into by Magistrate and thereafter it has formed an opinion that a prima facie case has been made out hence summons have been issued. Nothing has been placed to show that material available before Magistrate even if believed to be true no person of ordinary prudence can come to a conclusion that even prima face no case of commission of offence by accused-revisionists under Section 135 of Act 1962 is made out. Looking to the summoning order issued by SCJM it can be said that whatever material was available before Court below it has considered the same and after applying its mind to the material available before it has issued process to revisionists and it cannot be said that the same is illegal or contrary to law in any manner hence no interference is called for in this criminal revision. Criminal revision valid.

Summary

Issues:
1. Summoning of revisionists under Section 135 of Customs Act, 1962 based on a complaint filed by Assistant Commissioner of Customs.
2. Allegations of involvement in smuggling activities against the accused revisionists.
3. Legal challenge to the summoning order by revisionists.
4. Comparison with relevant legal precedents in similar cases.
5. Application of recent circulars and guidelines in the context of the case.

Analysis:
1. The judgment involves a criminal revision under Section 401 read with Section 397 Cr. P.C., challenging the summoning order issued by the Special Chief Judicial Magistrate (SCJM) against the revisionists under Section 135 of the Customs Act, 1962. The complaint filed by the Assistant Commissioner of Customs alleged the involvement of the revisionists in acquiring, concealing, and dealing with contraband goods, leading to the summoning of the accused.

2. The facts of the case revolve around a raid on a godown resulting in the recovery of Chinese silk yarn and subsequent statements made by the accused and witnesses. The SCJM, after perusing the permission obtained from the Commissioner of Customs and relevant statements, found a prima facie case and issued the summoning order. The revisionists challenged this order on the grounds of lack of evidence linking them to the seized goods and alleged confessional statements.

3. The counsel for the revisionists contended that the summoning order was passed without proper application of mind and lacked material to establish the connection between the revisionists and the seized goods. However, the court emphasized that at the initial stage, the magistrate is required to consider the allegations in the complaint and the material presented, including seizure memos and statements. The court found that based on the available material, a prima facie case existed, justifying the issuance of summons.

4. The judgment referred to legal precedents where the issuance of process was challenged but upheld by higher courts. The court distinguished the present case from those precedents, highlighting that the accused revisionists had not yet appeared before the magistrate to present their defense. The court also discussed the relevance of a circular issued by the Government of India in 2015, noting that it did not apply to the facts of the case due to the incident occurring in 2000.

5. Ultimately, the court dismissed the criminal revision, upholding the summoning order issued by the SCJM. The court concluded that the SCJM had duly considered the available material before issuing the process, and there was no illegality or contravention of the law in the summoning order. The interim order, if any, was vacated, and the judgment was certified to the lower court for immediate action.