2023 (8) TMI 865 - HC - Customs

Issuing summons to Daughter for the alleged offence committed by the Father - Maintainability of petition - remedy of revision being available - jurisdiction of this Court in terms of Section 482 Cr.P.C. - smuggling of arms and ammunitions from Slovenia to India - father of the petitioner utilized the petitioner s Arms and Ammunition License License issued by the Delhi Police and the Renowned Shooter Certificate issued by the National Rifle Association of India NRAI for importing weapons using bogus Invoices and by suppressing the true value and description of the weapons and without the recommendation of NRAI. HELD THAT - It is the general practice in most if not all Indian families that a student studying in School/ College/ University and that too when it happens to be in another State/Country it is the family primarily the parents who play the augment role to support and fill in for them. It is a matter of common knowledge that most of such students are dependent upon their parents. This is more so when the parents are also involved in the same activity like in the present circumstances where the father of the petitioner is himself a shooter. Considering the state of affairs involved this Court is of the view that like any other student the petitioner would have been busy in her studies and like any other sportsperson she would also have been busy with her shooting practices and therefore her father filled in for making all arrangements qua procuring arms and ammunitions for her shooting practices/ competitions. This Court is of the view that the case against the petitioner is based on assumption and presumption which is neither sufficient for registration of a complaint against her nor for issuance of the impugned summoning order. The overall facts hereinabove lead to the conclusion that the petitioner is being wrongly prosecuted for the alleged offences committed by her father only on the pretext that her father was in possession of her License at the time of seizure and had allegedly utilized the same for procuring arms without any specific allegation(s) against her. It is difficult for this Court to conclude that the petitioner had any knowledge of the alleged offences committed by her father which can be attributable to her. Taking a holistic note of all the aforesaid facts as they stand as per this Court the Complaint did/ does not disclose the commission of any offence by the petitioner. Thus there was no sufficient reason for the learned Chief Metropolitan Magistrate to issue summons to her. In view thereof no prima-facie case is made out against the petitioner under Section(s) 132 135(1)(a) and 135(1)(b) of the Act as the allegations against the petitioner do not disclose the essential ingredients of the offence she is charged with/ accused of and no presumption that the petitioner had knowledge of the alleged offences committed by her father can be drawn. Further in the opinion of this Court the learned Chief Metropolitan Magistrate was wrong in proceeding to issue summons vide the impugned order merely on the existence of preponderance of probability. Hence Section 138A of the Act is not applicable to the facts of the present case. Petition allowed.

Summary

Issues Involved:

1. Maintainability of the petition.
2. Liability of the petitioner for the alleged offences under Sections 132 and 135(1)(a) and (b) of The Customs Act, 1962.
3. Validity of the order dated 22.10.2018 issuing summons to the petitioner.

Summary:

1. Maintainability of the Petition:

The court examined whether the petition was maintainable under Section 482 Cr.P.C. despite the availability of a revision remedy. Citing precedents like *Dhariwal Tobacco Products Ltd. vs. State of Maharashtra* and *Som Mittal vs. Govt. of Karnataka*, the court concluded that the petition was maintainable as there is no absolute bar in law.

2. Liability of the Petitioner:

The petitioner argued that she had no connection with the alleged offences, asserting that her father managed all arms procurement using her license. She was not in Delhi on the date of the incident and was unaware of the arms imported in her name. The court found her statements plausible and noted that the DRI's complaint and report seeking prosecution did not establish her direct involvement. The court emphasized that the petitioner could not be held vicariously liable for her father's actions, as there is no concept of vicarious liability under criminal law.

3. Validity of the Summons Order:

The court scrutinized the issuance of summons under Section 204 Cr.P.C. and determined that there were no sufficient grounds for the learned Chief Metropolitan Magistrate to issue summons against the petitioner. The court highlighted the importance of ensuring that the initiation of prosecution and summoning of an accused is not done mechanically or without adequate investigation. The court referred to the Supreme Court's observations in *Dayle De'souza v. Govt. of India* to underscore the need for judicial propriety in issuing summons.

Conclusion:

The court quashed the criminal complaint and the order dated 22.10.2018 against the petitioner, stating that no prima facie case was made out under Sections 132, 135(1)(a), and 135(1)(b) of The Customs Act, 1962. The court clarified that the proceedings against the remaining accused persons would continue as per law. The petition was allowed, and the pending application was disposed of.