1980 (4) TMI 132 - HC - Customs

Summary

Issues Involved:
1. Jurisdiction of the Calcutta Court.
2. Validity of the complaint filed by the Assistant Collector of Customs.
3. Maintainability of the appeal.
4. Framing of charges under Section 135(b) of the Customs Act.
5. Proof of prohibited goods and valuation.

Detailed Analysis:

1. Jurisdiction of the Calcutta Court:
The accused respondent, holding an Italian passport, arrived in India on 16-2-1968 and was later found in possession of a large quantity of jewelry and precious stones of foreign origin. The trial court initially held that the Calcutta Court had jurisdiction to try the case. The accused contested this, but the High Court upheld the trial court's decision, affirming the jurisdiction of the Calcutta Court.

2. Validity of the Complaint Filed by the Assistant Collector of Customs:
The complaint was filed by Mr. A.M. Sinha, Assistant Collector of Customs, representing the Union of India. Mr. Ghosh contended that the description "representing Union of India" was misleading and legally unjustified, as there is no provision in the Criminal Procedure Code or the Customs Act for filing a complaint in a representative capacity. The court noted that the complaint was signed by Mr. Sinha as an individual and not in a representative capacity, thus questioning the validity of the complaint.

3. Maintainability of the Appeal:
Mr. Ghosh argued that the appeal was not maintainable as the case was instituted upon a complaint, and only the actual complainant had the right of appeal under Section 417(4) of the Old Code (corresponding to Section 378(4) of the New Code). The court accepted this argument, stating that the Union of India, not being the complainant, had no right of appeal. The appeal was filed by Mr. Jivan Krishna, a Customs Officer, who was not authorized to represent the Union of India. Consequently, the court found the appeal to be non-maintainable.

4. Framing of Charges under Section 135(b) of the Customs Act:
The initial charge was framed under Section 135(a) of the Customs Act but was later changed to Section 135(b) upon the High Court's direction. Mr. Ghosh contended that the charge should have been framed under Section 135(a) and not Section 135(b). The court, however, upheld the earlier decision to frame the charge under Section 135(b), referencing a previous Division Bench decision and a Supreme Court case under the Sea Customs Act.

5. Proof of Prohibited Goods and Valuation:
The prosecution needed to prove that the goods were liable to confiscation under Section 111 of the Customs Act, specifically clause (D), which pertains to prohibited goods. The prosecution relied on the Imports (Control) Order, 1955, which restricts the import of "Coral prepared." However, the court noted that the restriction is subject to exemptions under Paragraph 11 of the Order, which allows importation within admissible limits under Baggage Rules. The prosecution failed to satisfactorily prove the valuation of the coral beads, which was crucial to establishing that the goods were prohibited. The court found the evidence regarding valuation to be hearsay and unreliable, thus failing to prove that the goods were prohibited.

Conclusion:
The High Court dismissed the appeal, accepting the preliminary objection that the appeal was not maintainable as it was not filed by the actual complainant. Additionally, on merits, the court found that the prosecution failed to prove the valuation of the goods, which was essential to establish that they were prohibited. Consequently, the order of acquittal was upheld.