2010 (1) TMI 31 - HC - Customs

Prosecution under section 132 of the Customs Act 1962 - a person who is neither exporter nor importer whether merely suggesting name of CHA could lease to prosecution whether visit of custom office for processing of documents would lead ot prosecution whether suggesting source of goods would lead to persecution held that - that in the present case there is nothing to show that the petitioner made any false declaration or prepared false documents and therefore he is not liable to be prosecuted under Section 132 of the Customs Act. - In this case moreover the complaint is barred by limitation inasmuch as as per the provision of Section 132 which existed at the relevant time the punishment which could have been imposed for violating Section 132 could have extended for a period of six months or with fine or with both and limitation in such a case as provided under Section 468 of the Cr.P.C. was only 1 year. In the present case the complaint was filed by the respondent on 31.08.1998 whereas the incident in this case pertains to the year 1997 and therefore the complaint was admittedly barred by limitation. This has also been accepted by the learned counsel for the respondent during the course of arguments.

Issues:
1. Quashing of order taking cognizance against accused No. 2 in a complaint case under the Customs Act.
2. Allegations against accused No. 2 in relation to export business dealings.
3. Grounds for quashing the complaint and order of cognizance against accused No. 2.
4. Validity of prosecution sanction by the Commissioner of Customs.
5. Application of Sections 132 and 135(1)(a) of the Customs Act in the case.
6. Limitation period for filing the complaint.

Analysis:
1. The petitioner, accused No. 2, sought quashing of the order taking cognizance against him in a complaint case under the Customs Act, contending that the complaint was time-barred and lacked evidence for conviction, thus amounting to an abuse of court process. The petitioner was not directly involved in the export business dealings and had no financial interest in the transactions conducted by accused No. 1, making the complaint against him unjustifiable.

2. The allegations against accused No. 2 included suggesting a Custom House Clearing Agent and procurement sources to accused No. 1 but without any direct involvement in the export transactions. The petitioner's role was limited to providing recommendations and facilitating paperwork, with no personal gain or participation in the business dealings. The petitioner's lack of association with the exporter or importer raised doubts on the validity of the complaint against him.

3. The grounds for quashing the complaint against accused No. 2 included the absence of any evidence implicating him in fraudulent activities or false declarations related to the export business. The petitioner's actions were limited to advisory roles and administrative support, without any direct involvement in the alleged offenses under the Customs Act. The court found no legal basis to proceed with the case against the petitioner.

4. The prosecution sanction by the Commissioner of Customs was deemed invalid and void ab-initio due to a lack of proper examination of facts and legal provisions. The mechanical nature of the sanction without a thorough assessment of the applicability of Customs Act and FERA provisions raised concerns about its validity, contributing to the court's decision to quash the proceedings against accused No. 2.

5. The application of Sections 132 and 135(1)(a) of the Customs Act was scrutinized in the case, with the court concluding that the petitioner, not being an exporter, was not liable under these sections. The absence of any evidence linking accused No. 2 to false declarations or fraudulent activities in the export transactions led to the dismissal of charges under these sections, reinforcing the decision to quash the proceedings against the petitioner.

6. The complaint filed against accused No. 2 was found to be time-barred, as the incident in question occurred in 1997, and the complaint was lodged in 1998, exceeding the limitation period prescribed under the Cr.P.C. The court acknowledged the limitation issue and ruled in favor of quashing the order taking cognizance against the petitioner, thereby discharging any bail bond associated with the case.

This detailed analysis of the judgment highlights the legal intricacies and reasoning behind the court's decision to quash the proceedings against accused No. 2 in the complaint case under the Customs Act.

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