2008 (1) TMI 399 - HC - Customs

Prosecution - quashing of a criminal complaint under Sections 132 and 135(1)(a) of the Customs Act, 1962 seeked - Held that - The petitioners could have approached the compounding authority also for compounding of the offences for which they were being prosecuted even after they had approached the Settlement Commission from which they had got the relief of immunity from penalty and fine. The petitioners, however, did not avail of this remedy available to them under the aforesaid Rules of 2005 and, therefore, the present petition under Section 482 Cr.P.C. will have to be dismissed because of the failure of the petitioners to avail of the statutory remedy available to them under the Act for seeking compounding of the offences for which they are being prosecuted. As far as the plea of the petitioners that the Court at Delhi had no territorial jurisdiction to entertain the complaint against the petitioners is concerned the same can be very well urged before the trial Court where the complaint is pending trial since the plea of the Department is that final destination of the goods imported by the petitioners at undervalued prices was Delhi. In view of these rival factual stands from both the sides this question cannot be determined in the present petition under Section 482 Cr.P.C. So, on this ground also the petitioners cannot succeed in this petition.

Summary

Issues:
Quashing of criminal complaint under Sections 132 and 135(1)(a) of the Customs Act, 1962 pending against petitioners in the Court of Addl. Chief Metropolitan Magistrate, New Delhi.

Analysis:
1. The petitioners sought quashing of a criminal complaint under Sections 132 and 135(1)(a) of the Customs Act, 1962 pending against them. The Directorate of Revenue Intelligence (DRI) investigated the petitioners for importing electronic goods from Hong Kong at undervalued prices. Notices were issued demanding customs duty from the petitioners. A criminal complaint was filed against them. The petitioners approached the Settlement Commission and agreed to pay the demanded customs duty, receiving immunity from penalty and fine but not from prosecution.

2. The petitioners argued for quashing the criminal complaint, citing a Supreme Court judgment and legislative intent. They contended that paying the customs duty should grant them immunity from prosecution. The Settlement Commission's decision not to grant immunity from prosecution was due to the proceedings being initiated before their application. The petitioners also raised a jurisdictional issue, claiming the complaint should not be maintainable before a Delhi court.

3. The respondent argued against quashing the complaint, emphasizing the Settlement Commission's inability to grant immunity from prosecution once proceedings had commenced. The respondent highlighted the petitioners' failure to withdraw their settlement applications after learning of the prosecution, suggesting they cannot claim victimization due to a technicality.

4. The judge considered both parties' submissions. The judge acknowledged the purpose of settlement provisions to avoid criminal proceedings and financial loss to the government. The judge noted that seeking immunity from prosecution from the Settlement Commission is only possible before the initiation of criminal proceedings. The judge highlighted the availability of seeking compounding of offences under Customs (Compounding of Offences) Rules, 2005, even after approaching the Settlement Commission.

5. The judge dismissed the petition, citing the petitioners' failure to avail themselves of the statutory remedy for seeking compounding of the offences they were being prosecuted for. The judge also addressed the jurisdictional issue, stating it should be raised before the trial court where the complaint is pending trial. The judge allowed the petitioners to approach the Compounding Authority under the Compounding Rules of 2005 for seeking compounding of the offences.

In conclusion, the petition for quashing the criminal complaint was dismissed due to the petitioners' failure to utilize the statutory remedy available for seeking compounding of the offences. The judge also addressed the jurisdictional issue, suggesting it should be raised before the trial court. The petitioners were advised to approach the Compounding Authority for seeking compounding of the offences they were being prosecuted for.