9911796707
TMI Blog2022 (5) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Trial Court stating therein that intelligence reports have been received that M/s Elgin Electronics (hereinafter "the firm"), of which petitioner no. 1 is the Proprietor and petitioner no. 2 is the Manager, was in the business of importing public address systems, sound systems for auditorium etc. without payment of customs duty. On basis of the said inputs, search was conducted on 13th July 2009 by the DRI at the premises of the firm. Goods imported by the said firm were detained and inquiry was made from the accused persons about the value of the detained goods. The petitioner no. 1 furnished an approximate value of the goods vide letter dated 1st September, 2009, but no document regarding the same was given to the DRI. Goods detained were then seized on the reasonable belief that same has been imported without payment of customs duty. 3. It is further alleged that during the course of investigation, documents pertaining to retail Invoices raised by the firm were found to be fake. The statement of one Ramesh Gupta, partner of M/s Gupta Brothers was recorded under Section 108 of the Act in which he has stated that his firm had executed a project for M/s GAIL for an total amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to entertain all prosecutions under the said Act pertaining to Delhi. It is also submitted that the summoning order dated 5th March 2014 is a non-speaking order and the Revisional Court has also not dealt with the submissions/contentions made by the petitioners in the proper perspective and dismissed the revision without considering the aforesaid facts. 7. It is submitted that there is nothing to show that the petitioners made any false declaration or prepared false documents and therefore, they are not liable to be prosecuted under Section 132 of the Act. Learned counsel further submitted that the complaint is barred by limitation insofar as per the provision of Section 132 of the Act, the punishment which could have been imposed for violating Section 132 of the Act could have extended for a period of six months or with fine or with both. Limitation in such a case as provided under Section 468 of the Cr.P.C. is only 1 year. In the present case, the complaint was filed by the respondent No.2 on 26th October 2013, whereas the incident in this case pertains to the year 2009 and, therefore, the complaint was admittedly barred by limitation. It is settled law that if the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding started in which the vessel in question was confiscated and penalty was imposed against the appellant. Arising out of the penalty proceeding, the matter was taken to the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as "CEGAT") and, by order dated 18-4-1995, the appeal has been allowed and penalty has been deleted on merit. It has been submitted that in view of the fact that penalty imposed, against the appellant under the provisions of the Act, has been deleted by CEGAT on merit, it would be just and expedient to quash the prosecution as continuance thereof would amount to an abuse of the process of court. In support of his submission, the learned counsel has placed reliance upon the judgment of this Court, in K.C. Builders v. CIT in which, following its early decisions, this Court quashed criminal prosecution of the accused under the provisions of the Income Tax Act on the sole ground that penalty imposed against him was deleted on merit. In our view, the present case is squarely covered by the aforesaid decision of this Court, as such, it would be just and expedient to quash the prosecution of the appellant." 13. It is submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order summoning the petitioners without taking into consideration the material as well as the provisions of the statute. 17. The impugned order dated 5th March 2014 passed by the Court of learned CMM, Patiala House Courts, New Delhi and relevant portion of order dated 29th July 2016 passed by learned ASJ, Patiala House Courts, New Delhi, are reproduced herein below:- i. Order dated 5th March 2014 "Present: Ms. Pooja Bhaskar, Ld. SPP for complainant with Complainant Shri Rajeev Sadana Accused persons are stated to be on court bail but not Present today An application for exemption of personal attendance of complainant and for dispensing of recording preliminary evidence is filed along with the complaint. As this complaint is filed by a public servant in discharge of his public duties, hence, recording of preliminary evidence is dispensed with. Personal attendance of complainant is also dispensed with till further orders. Complainant is allowed to be represented through Ld. SPP for complainant. Complaint and documents perused. Heard. After going through the complaint, the documents and arguments raised before me by Ld. SPP, I am of the opinion that at this stage there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner himself had stated that the proceedings before the CESTAT were pending and only an order of stay had been passed. In these circumstances the ratio laid down in the case of Dinesh Aggarwal vs. DRI (supra) will not apply to the present case. 14. Petitioner had submitted that he could not have been prosecuted for smuggling of non-notified goods and goods which are easily available in the market. He had relied upon the case of Sayed Ibrahim & Ors. vs. CC (supra). The said judgment is of a Tribunal at Bangalore and cannot be said to be a binding precedent. 15. The petitioner had submitted that the Ld. CMM did not have the territorial jurisdiction to entertain the complaint. There is a notification of the Registrar General vide No. 3089/DHC/Gaz./ VI.E.2(a)2008 of the Delhi High Court as per which prosecutions for violation of, amongst others, the Customs Act are to be dealt with by the criminal courts at Patiala House Courts, New Delhi. Therefore the Court of the CMM, New Delhi District at Patiala House Courts has been specifically, conferred the jurisdiction to entertain all prosecutions under the said Act pertaining to Delhi. 16. The counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely:- (i) the fact that the accused has been convicted for the first time for a reference under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Section 135(1)(a) of the Act as valuation of the goods is less than Rs.1 Crore; secondly, the respondent-department has not examined any witness to prove its case against the petitioner; thirdly, the complaint was admittedly barred by limitation; fourthly; the sanction by the Additional Director for prosecution is invalid and void-ab-initio; and lastly, the Court below while passing the summoning order has not assigned any reason for summoning the petitioner.
CONCLUSION
23. In view of the aforementioned facts, circumstances and law established, I am inclined to hold that the impugned orders passed by the Courts below summoning the petitioners and dismissing the criminal revision are bad in law. The summoning order dated 5th March 2014 passed by learned CMM and order dated 29th July 2016 passed by learned ASJ are set aside. Accordingly, criminal complaint bearing CC No.75/1/2013 filed under Sections 132 and 135(1)(a) of the Customs Act and all proceedings emanating therefrom are hereby quashed. The petition is allowed and stands disposed of.
24. Pending application, if any, also stands disposed of.
25. The judgment be uploaded on the website forthwith. X X X X Extracts X X X X X X X X Extracts X X X X
|
