2023 (12) TMI 491 - HC - Customs

Requirement of previous sanction as contemplated in Section 137 of the Customs Act, 1962 for taking cognizance of the alleged offences - petitioners submits that when such specific authorities are empowered to accord sanction; even by excluding superior officers like Principal Commissioner of Customs or Chief Commissioner of Customs, the sanction accorded in this case by an officer who held only charge and not by the officer empowered by the statutory provision is illegal. HELD THAT - Section 4(2) governs only authorisation of the officers enlisted therein by the Board to appoint officers below the rank of Assistant Commissioner or Deputy Commissioner of Customs; whereas notification dated 07.03.2002 was issued to classify the officers and appoint Commissioner of Customs. Before amending Section 4(1) on 11.05.2002, it was the Central Government and not the Board the authority to appoint officers of Customs. Hence, the notification dated 07.03.2002 issued by the Central Government is quite valid. The notification dated 07.03.2002 says that the Commissioner of Central Excise to be the Commissioner of Customs (Appeals) within their respective jurisdiction as specified under Rule 3 of the Central Excise Rules, 2002. Thus there is valid appointment of the Commissioner of Central Excise to be the Commissioner of the Customs. Hence, appointment of the officer officiating as the Commissioner of Customs could validly accord sanction. The petitioners cannot be heard to contend that such an officer did not have the power to discharge the functions and duties of the Commissioner of Customs under Section 137 of the Customs Act. In that view of the matter, the contention of the learned counsel for the petitioners that the sanction accorded for prosecution in this case is illegal cannot be prima facie accepted. The criminal revision petition is dismissed.

Summary

Issues:
The issues involved in this case are the legality of the order dated 05.07.2023 dismissing the petition filed by the revision petitioners under Section 245 of the Code, the accusation against the petitioners and their co-accused in C.C. No. 592/2017, and the contention regarding the requirement of previous sanction under Section 137 of the Customs Act, 1962.

Legality of Order:
The revision petitioners challenged the order dated 05.07.2023, which dismissed their petition filed under Section 245 of the Code. The petitioners, accused Nos. 1 and 3 in C.C. No. 592/2017, were accused of attempting to smuggle gold into the country by concealing it in their baggage. The petitioners contended that the previous sanction as per Section 137 of the Customs Act, 1962, was essential for taking cognizance of the alleged offenses. They argued that the sanction accorded in this case by an officer who held only charge and not by the officer empowered by the statutory provision was illegal.

Accusations and Sanction Requirement:
The accusation against the petitioners and their co-accused in C.C. No. 592/2017 involved an incident where the 1st accused arrived at the Customs exit gate with gold bars concealed in his baggage. The total value of the gold was Rs. 94,97,670/- and the total weight was 3.479 Kg. The petitioners raised the issue that the sanction accorded by the Commissioner (Central Excise, Customs and Service Tax) Thiruvananthapuram was illegal as only the Principal Commissioner of Customs or Commissioner of Customs was empowered to accord sanction as per Section 137 of the Customs Act, 1962.

Validity of Sanction:
The learned counsel for the petitioners argued that the officer who accorded sanction did not have the authority under Section 137 of the Customs Act, as the Central Government cannot exercise the powers of empowerment of various customs officers. However, the Court held that the notification dated 07.03.2002 issued by the Central Government appointing the Commissioner of Central Excise as the Commissioner of Customs was valid. The Court found that the officer officiating as the Commissioner of Customs had the power to discharge the functions and duties under Section 137 of the Customs Act.

Decision and Dismissal:
The Court dismissed the Criminal Revision Petition, stating that the contention of the petitioners regarding the illegal sanction could not be accepted. The Court referred to various decisions to support its ruling and dismissed the petition without prejudice to the right of the petitioners to raise their contention as a defense at the trial.