1981 (11) TMI 65 - HC - Customs

Summary

Issues:
1. Discharge petition rejected by Magistrate.
2. Allegations under Customs Act and Gold Control Act.
3. Legal grounds for discharge petition.
4. Partnership firm's liability in alleged offences.
5. Prosecution against individual partner without firm's involvement.

Analysis:
1. The revisional application was filed against the rejection of a discharge petition by the Magistrate in Case No. 1807-C of 1972. The complainant, an Assistant Collector of Customs, alleged offences under Section 135 of the Customs Act and Section 85 of the Gold Control Act against the petitioner, who was found in possession of smuggled gold and primary gold without proper authorization.

2. The prosecution proceeded with the case, examining twelve witnesses to prove the allegations. The petitioner filed multiple discharge petitions, challenging the legality of the search conducted and the lack of proper authorization under the Gold Control Act. The Magistrate, however, rejected these petitions, leading to the revisional application before the High Court.

3. The petitioner's advocate argued that the offences were committed by a partnership firm, S.B. Pyne & Co., of which the petitioner was a partner. Citing relevant legal provisions, the advocate contended that without impleading the partnership firm in the case, prosecuting an individual partner was not permissible. Referring to case law, the advocate established that the firm's liability should be addressed before proceeding against an individual partner.

4. The High Court agreed with the petitioner's argument, emphasizing the principle that when an offence is committed by a partnership firm, all partners are deemed guilty, and the firm must be prosecuted first. The court cited legal provisions and precedent to support this view, rejecting the opposite party's argument that the petitioner could be individually responsible for the alleged offences.

5. Consequently, the High Court allowed the application, quashing the proceedings against the petitioner in Case No. 1807-C of 1972. The court held that without involving the partnership firm in the prosecution, the case against the individual partner could not proceed. The judgment made the rule absolute, effectively ending the legal proceedings against the petitioner.