9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 375 - HC - CustomsSmuggling - Gold - Toyota Fortuner - prohibited goods or not - retraction of statements - respondent retracted his earlier statement, where he had admitted that he had brought the gold from Rinchenghang, TAR, China and instead categorically denied its ownership - HELD THAT - In terms of Section 245 of the Cr.P.C., the Learned Trial Court is indeed required to examine whether any case against the accused has been made out which if unrebutted, would warrant his conviction and in such a circumstance the Magistrate should discharge him. However, the Learned Trial Court cannot weigh the evidence furnished at this stage, on golden scales. The evidence is to be examined for the purposes of a prima facie case. In the instant matter it prima facie appears that gold had been smuggled into the country by the Respondent from Rinchenghang, TAR, seizure of which was made by the SHO, Sherathang P.S., in the presence of witnesses. That, in terms of Notification No.38/96-Customs dated 23-07-1996 as amended subsequently, Gold is not permitted to be imported from China into India by individuals. A prima facie case has been made out by the Petitioner against the Respondent and the Order of discharge of the Respondent is thus perverse and not sustainable. The impugned Order is accordingly set aside - Petition disposed off.
Issues Involved:
1. Legality and propriety of the discharge of the Respondent under Section 135(1)(a) and (b) of the Customs Act, 1962. 2. Examination of evidence and procedural compliance under Sections 244 and 245 of the Code of Criminal Procedure (Cr.P.C). 3. Applicability and interpretation of Sections 100, 101, and 102 of the Customs Act. 4. Consideration of prima facie case for framing charges. Issue-wise Detailed Analysis: 1. Legality and Propriety of Discharge: The High Court examined whether the Learned Chief Judicial Magistrate (CJM) correctly discharged the Respondent of the offences under Section 135(1)(a) and (b) of the Customs Act, 1962. The CJM had discharged the Respondent based on the evidence and provisions of law, concluding that no case was made out to warrant conviction. The Petitioner argued that the trial court erred in its conclusion and that the Respondent should not have been discharged. 2. Examination of Evidence and Procedural Compliance under Sections 244 and 245 Cr.P.C: The High Court noted that in a warrant trial instituted otherwise than on a police report, the Magistrate must hear the prosecution and take all evidence produced in support of the prosecution under Section 244 Cr.P.C. After considering this evidence, the Magistrate must determine under Section 245(1) Cr.P.C whether any case against the accused is made out which, if unrebutted, would warrant his conviction. The High Court emphasized that the Magistrate should not weigh the evidence as if conducting a trial but should determine if a prima facie case exists. 3. Applicability and Interpretation of Sections 100, 101, and 102 of the Customs Act: The High Court discussed the provisions of Sections 100, 101, and 102 of the Customs Act, which pertain to the search of persons and seizure of goods. The trial court had erroneously assumed that Sherathang, where the Land Customs Office is located, and Nathula Gate, where the search and seizure took place, are the same. The High Court clarified that the invocation of Section 102 of the Customs Act is contingent upon the provisions of Sections 100 and 101, and such evidence should be marshaled at the trial stage, not at the stage of considering a prima facie case. 4. Consideration of Prima Facie Case for Framing Charges: The High Court reiterated that at the stage of Section 245 Cr.P.C, the evidence should be examined to determine if a prima facie case exists, which, if unrebutted, would warrant conviction. The trial court had discharged the Respondent despite evidence indicating possession of gold by the Respondent, which was allegedly smuggled from Rinchenghang, TAR, China. The High Court found that the trial court had erroneously discharged the Respondent by misinterpreting the evidence and provisions of law. Conclusion: The High Court concluded that a prima facie case had been made out against the Respondent, and the order of discharge was perverse and not sustainable. The High Court set aside the impugned order and directed the Learned CJM to restore the case to its original number and commence the trial as per law. The observations made by the High Court were not to prejudice the trial court's independent findings at the completion of the trial. Final Orders: 1. The impugned order of discharge is set aside. 2. The Learned CJM, East Sikkim, at Gangtok, is directed to restore the case and commence the trial. 3. The observations of the High Court should not prejudice the trial court's findings. 4. The Criminal Revision Petition is disposed of. 5. A copy of the judgment is to be forwarded to the trial court for compliance. 6. The records of the trial court are to be remitted forthwith.
|
