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TMI Blog2022 (5) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... nt time the punishment which could have been imposed for violating Section 132 of the Act could have extended for a period for a period of six months or with fine or with both and limitation in this case as provided under Section 468 of Cr.P.C. is only 1 year. The learned Courts below did not consider that at the stage of Section 200 of Cr. P.C., the exemption can only be given to a public servant who has filed a case in his official capacity, but such exemption is not available with the other witnesses. In the present case, it was the duty of respondent no.2 to prove its case against the petitioners and show sufficient evidence on record, however, the respondent no. 1 in the present case did not examine even the panch witnesses to prove its case. Therefore, the Court below has summoned the petitioner without any material on record for prima facie satisfaction. The impugned order, passed in the instant case, is bad in law. Petition allowed. - CRL.M.C. 1416/2017 & CRL.M.A. 5836/2017 - - - Dated:- 25-5-2022 - HON BLE MR. JUSTICE CHANDRA DHARI SINGH Petitioners Through: Mr. Mukesh Anand, Advocate Respondents Through: Mr. Raghuvinder Varma, APP for State. Mr. Sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 132 and 135(1)(a) of the Act. 4. Learned Trial Court vide order dated 5th March 2014 issued summons to the accused persons/petitioners dispensing with the examination of the complainant, who was a public servant at the presummoning stage. The petitioners being aggrieved, challenged the order dated 5th March 2014, by way of filing Criminal Revision No.47/2014 before Additional Sessions Judge-02, FTC, New Delhi. Vide order dated 29th July 2016, the aforesaid criminal revision was dismissed by the Revisional Court. Hence, the instant Criminal Misc Petition under Section 482 of Cr.P.C. has been preferred by the petitioners. SUBMISSIONS 5. The learned counsel for the petitioner submitted that no case under Section 132 of the Act is made out against the petitioners as admittedly the petitioners never made, signed, used any document, declaration or statement in the course of the business of petitioner no.1's firm knowingly or under a belief that such declaration, document or statement is false. It is further submitted that there is no violation as contemplated under Section 111 of the Act as the petitioners are neither importer of goods nor associated in any capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that respondent no.2 did not prefer appeal against the aforesaid order passed by the Commissioner, the said order, therefore, attained finality. 9. Learned counsel for the petitioner submitted that the sanction by the Additional Director, DRI, for prosecution is invalid and void-ab-initio as it is a result of non-application of mind and suffers from grave lacuna of being mechanical in nature without going into the correct facts and without testing the applicability of the provisions of the Customs Act. 10. In support of his arguments the learned counsel has relied on the case of Canon India Pvt Ltd vs. Commissioner of Customs, Civil Appeal No.1827 of 2018 in which the Hon ble Supreme Court held as follows:- It is, therefore, clear to us that the Additional Director General of DRI was not the proper officer to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. 11. It is submitted that the complaint and prosecution launched by the DRI is contrary to their circular no. 27/2015 customs dated 23rd October 2015, according to which the prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the aforesaid law laid down by the Hon ble Supreme Court, the criminal complaint filed by the respondent may be quashed and the subsequent proceedings, i.e., summoning order dated 5th March 2014 and revisional order dated 29th July 2016 may be set aside. 14. Per Contra, learned counsel for the respondent vehemently submitted that there is no illegality in the orders impugned. Learned CMM after considering the facts and circumstances and material on record passed the summoning order and issued summon to the petitioners. The petitioners filed the criminal revision before learned Additional Sessions Judge. The said revision was dismissed after considering the contentions of the petitioners herein as well as after perusing the reasons given by learned CMM while passing the summoning order. The Revisional Court did not find any illegality or error in the impugned order passed by the learned CMM. Learned counsel for the respondent submitted that on the intelligence report, search was conducted and investigation was carried out by the DRI and on the basis of the said search and investigation, the criminal complaint was filed before the Trial Court after obtaining the sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. My findings are as under:- 10. With respect to the submission regarding market value of the goods for which the petitioner was being prosecuted not exceeding one crore, the records contains statement of Ramesh Gupta of M/s Gupta Brothers stating that they had outsourced their contract to the petitioner for public announcement systems and value of work given to the petitioner was worth Rs. 1 crore. 11. The next submission made was that the complaint was barred by limitation. In this regard the provisions of the Economic Offences (Inapplicability of Limitation) Act 1974 excludes the applicability of Chapter XXXVI of the Code of Criminal Procedure in respect of prosecution for certain economic offences. The Schedule to the said Act included offences under the Customs Act 1962. Hence, the issue of limitation cannot arise for the present case. 12. The petitioner had submitted that without summoning panch / seizure witnesses at the presummoning stage summons could not have been issued. He relied upon the case of Customs vs. Dina Aruna Gupta (supra). Perusal of the said judgment reveals that in that case the said finding was given in a case at the final stage i.e. afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the revision petition has no merit and is dismissed . 18. Section 135 of the Act reads as under:- 135. Evasion of duty or prohibitions.- (1) Without prejudice to any action that may be taken under this Act, if any person- (a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be; or (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,- (i) in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 4th August 2011 passed by the Commissioner of Customs (Preventive), collective value of all the goods was taken to be Rs.77,16,288/- and it is further admitted that no appeal was preferred against the said order, which therefore, attained finality. 20. Section 132 of the Act reads as under:- Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a terms which may extend to [two year], or with fine, or with both. 21. At the outset, it may be observed that in the present case there is nothing to show that the petitioners made any false declaration or prepared false documents and, therefore, he is not liable to be prosecuted under Section 132 of the Act. In this case, moreover the complaint is barred by limitation inasmuch as per the provisions of Section 132 of the Act, which existed at the relevant time the punishment which could have been imposed for violating Section 132 of the Act coul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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