2012 (11) TMI 83 - HC - Customs

Charge under Section 135 of the Customs act - unauthorized possession of 79 gold biscuits of foreign origin Held that - Nothing to show that the said biscuits had been imported into India in a lawful manner - Once the accused was found in possession of gold biscuits of foreign origin and he has not been able to prove that the same had been imported lawfully into India, he is liable to be charged under Section 135 of the Customs Act - Though the accused did not confess his guilt in the said case, but the (sic-offence is) made out against the accused - Trial Court has analysed the material in the right perspective, correctly negate his plea, chargesheeted the Petitioner-accused for the commission of indicated offence and recorded the cogent grounds in this respect - no patent illegality or legal infirmity has been pointed out by the learned Counsel for the Petitioner-accused, so, the impugned orders deserve to be maintained

Issues Involved:
1. Validity of the complaint under Section 135 of the Customs Act.
2. Applicability of the principle of double jeopardy under Article 20(2) of the Constitution of India and Section 300 of Cr.P.C.
3. Whether the Petitioner can be charged under Section 135 of the Customs Act when the gold biscuits do not belong to him.
4. Scope and jurisdiction of the High Court under Section 482 Cr.P.C. to quash the complaint.

Detailed Analysis:

1. Validity of the Complaint under Section 135 of the Customs Act:
The core controversy revolves around the recovery of 79 gold biscuits with foreign markings and Indian currency from the Petitioner, which led to a complaint under Section 135 of the Customs Act. The Petitioner was apprehended by custom staff and police based on secret information, and the gold biscuits were seized under Sections 110 and 111 of the Customs Act. The Petitioner admitted to the recovery and confessed that he brought the biscuits from Abu Dhabi for a commission. The complaint was filed after obtaining the requisite sanction, and the Petitioner was charged under Section 135 of the Act.

2. Applicability of the Principle of Double Jeopardy:
The Petitioner argued that since he was already convicted and sentenced under Sections 379/34 IPC by the Metropolitan Magistrate, the subsequent complaint under Section 135 of the Customs Act amounted to double jeopardy. However, the court found this argument devoid of merit. It was noted that the Petitioner, along with others, staged a drama to create a false defense. The court emphasized that the judgment based on the Petitioner's confessional statement did not bar the Complainant from prosecuting him under Section 135 of the Act. Therefore, the principle of double jeopardy did not apply in this case.

3. Whether the Petitioner Can Be Charged Under Section 135 of the Customs Act:
The Petitioner claimed that the gold biscuits belonged to Resham Lal and Hanif, who had cleared them through customs at Delhi Airport. He argued that he could not be charged under Section 135 of the Customs Act since the gold did not belong to him. The court rejected this contention, stating that mere possession of gold biscuits with foreign markings constitutes an offense under the Act. The court highlighted that the legality of the gold biscuits' import and the effect of the previous conviction would be determined during the trial. The court emphasized that deciding these points at this stage would undermine the trial process.

4. Scope and Jurisdiction of the High Court Under Section 482 Cr.P.C.:
The Petitioner sought to quash the complaint under Section 482 Cr.P.C., arguing that the prosecution was malicious and vexatious. The court reiterated the principles laid down by the Hon'ble Supreme Court in various judgments, emphasizing that inherent jurisdiction under Section 482 Cr.P.C. should be exercised sparingly and only to prevent abuse of process or to secure the ends of justice. The court found that the complaint was not lodged maliciously or vexatiously and that the essential ingredients for quashing the prosecution were lacking in this case.

Conclusion:
The court concluded that there was no merit in the Petitioner's arguments. The trial court had rightly framed charges under Section 135 of the Customs Act, and there was no patent illegality or legal infirmity in the impugned orders. The petition was dismissed, and the court clarified that its observations were limited to deciding the present petition and would not affect the trial's merits.

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