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TMI Blog2022 (8) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been made out by the Petitioner against the Respondent and the Order of discharge of the Respondent is thus perverse and not sustainable. The impugned Order is accordingly set aside - Petition disposed off. - Crl.Rev.P. No.02 of 2020 - - - Dated:- 3-8-2022 - Hon'ble Mrs. Justice Meenakshi Madan Rai, Judge For the Petitioner : Mr. Dilip Kumar Agarwal, Junior Standing Counsel For the Respondent : Mr. Zangpo Sherpa, Advocate JUDGMENT MEENAKSHI MADAN RAI, J. 1. The Court of the Learned Chief Judicial Magistrate (hereinafter, CJM ), East and North Sikkim, at Gangtok, vide its impugned Order dated 09-10-2019, in Prosecution Report Case No.01/2017, discharged the Respondent/Accused, Dasang Bhutia, (hereinafter, Respondent ) of the offences under Section 135(1) (a) and (b) of the Customs Act, 1962 (for short, Customs Act ) on consideration of the facts, provisions of law and the evidence brought forth, concluding that no case was made out against the Respondent to warrant his conviction for the offences under the aforementioned provisions of the Customs Act. Aggrieved thereof, the Petitioner/Complainant (hereinafter Petitioner ) is before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As both the cases involved illegal import of gold, the SHO, Sherathang P.S. informed the Customs Officials and made over to them the Respondent, all the gold bars recovered and the seized Toyota Fortuner by preparing a Handing-Taking Memo dated 17-11-2015 at 14.40 hours, at the Sadar P.S., in the presence of the Sub-Divisional Magistrate, Gangtok and Police Officers. The gold seized from the Respondent was tested by two independent licensed jewelers of Gangtok who concluded that the yellow metal bar was a 24 carat Gold bar. The Respondent on preliminary enquiry admitted that he had brought the gold from Rinchenghang, TAR, which was accordingly seized and sealed by the SHO, Sherathang P.S. As the gold was clandestinely smuggled into India it was thus liable for confiscation under Section 111 of the Customs Act and accordingly seized under Section 110(1) of the Customs Act on 17-11-2015, in the presence of the Respondent, the Sub-Divisional Magistrate, Gangtok and other Officials. A proper Panchnama was prepared thereafter. Due to paucity of time the statement of the Respondent could not be recorded but he was arrested under Section 104 of the Customs Act at 5.00 p.m. on 17-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3(i). Walking this Court briefly through the facts of the case as stated supra, Learned Counsel for the Petitioner advancing his arguments reiterated that the prime witnesses viz. Constable Ranjeet Patel, ITBP, SI Roshan Gurung, and WCT Bindhya Rai, who were present at the spot proved recovery of the gold bar from the Respondent when their statements under Section 108 of the Customs Act were recorded. It was urged that the Learned Trial Court however, failed to appreciate that the cross-examination of the witnesses failed to decimate the evidence of the seizure of the gold bar. That, there was an error in interpreting the provisions of Section 102 of the Customs Act which specifically empowers a Proper Officer to search the specific person against whom information regarding illegal possession of articles is received. It does not involve a random search of any person, by any Customs Official who not is empowered to conduct such a search. The Learned Trial Court also failed to appreciate that the seizure was conducted by Police Personnel and hence the question of invocation of the provisions of Section 102 of the Customs Act did not arise. The Learned Trial Court also failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner s Witnesses Dr. Y. Siva Prasad, Commandant, 1st IRBN, Delhi, SI Roshan Gurung, and PI Novin Rai proved that prior information had been received by the Customs Officials with regard to the alleged smuggling of the article who failed to take steps in terms of the statutory provisions. That, besides their failure to act as per the mandate of law the Property Seizure Memo, Exhibit 2 at Serial No.8 requires the seizing Authority to give details of the action taken/recommended for keeping of valuable property which were however not inserted. Exhibit 3, the Handing and Taking Memo reveals that the article was seized and sealed in the presence of witnesses at the spot under Section 102 Cr.P.C but no such seal is seen in Exhibit 2 the Seizure Memo. The evidence of CW7, PI Novin Rai reveals that he had made no entries of the seized article in the required documents, the seizure witnesses were only Police Personnel but no other independent witnesses were present at the time of seizure. (ii) It was next contended that even if the rigours of Section 102 of the Cr.P.C are not fulfilled, the Learned Trial Court has carefully considered the provisions of Sections 244 and 245 of the Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other, were distinguished. That, on a Police report when the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like the Police report, FIR, statements recorded under sub-section (3) of Section 161 of the Cr.P.C of all the witnesses proposed to be examined by the Prosecution, as also the confessions and statements recorded under Section 164 of the Cr.P.C and any other documents which have been forwarded by the Prosecuting Agency to the Court. That, thereafter comes the stage of discharge as provided in Section 239 of the Cr.P.C where the Magistrate has to consider the Police report and the documents sent with it under Section 173 of the Cr.P.C and if necessary, to examine the accused and hear the prosecution of the accused. If on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for doing so. The prosecution at this stage is not required to lead evidence. Charge is framed under Section 240 of the Cr.P.C on examination of the aforementioned documents and on the Magistrate arriving at a conclusion that a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Section 239 and cases otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to the discharge of the accused. Under Section 227, the Trial Judge is required to discharge the accused if he considers that there is not sufficient ground for proceeding against the accused . Obligation to discharge the accused under Section 239 arises when the magistrate considers the charge against the accused to be groundless . The power to discharge is exercisable under Section 245(1) when the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction . It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce making out a case for warranting a conviction essential under Section 245 CrPC has to be read harmoniously with the requirement of opinion presuming the commission of offence by the accused under Section 246 CrPC. . 10. . .It would be wrong to say that the case of the prosecution has to be proved for conviction beyond reasonable doubt before framing of charge. The term warrant a conviction in section 245 CrPC does not encompass the verdict of conviction‟ of a trial after consideration of the entire evidence tested by cross examination and defence evidence if any but merely requires convincing case short than guilt proved beyond reasonable doubt but more than probability. Section 245 CrPC in my considered view measures prima facie case for conviction on evidence and not conclusive conviction on trial whereas section 246 of CrPC requires opinion of presumption that the accused has committed an offence. When compared with the phraseology for discharge under Section 227 CrPC as no sufficient ground‟ and under Section 239 CrPC as groundless‟ section 245 requires more, that is a case has to be made out warranting a conviction, otherwise accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trial and that a prima facie case which could lead to conviction is to be considered, the Learned Trial Court on examining the evidence before it discharged the Respondent with reasons commencing from Paragraph 33 of the impugned Order. According to the Learned Trial Court, the Petitioner was not acquainted with the facts of the case to his own knowledge but had filed the Complaint on the basis of the documents concerning the alleged seizure. That, the evidence of the Prosecution witnesses PI Novin Rai and WCT Bindhya Rai indicate that the alleged gold bar was seized from the possession of the Respondent but SI Roshan Gurung turned hostile and declined to identify the Respondent or seizure of the smuggled article. That, the Petitioner s Witness Dr. Y. Siva Prasad deposed about the source information, regarding the alleged gold smuggling. That, PI Novin Rai deposed that once he received the information that gold was being smuggled through Nathula Gate, he informed the Customs Officials as well as ITBP Officials. (v) Pausing here momentarily, it is evident that the Petitioner s Witnesses by their evidence have at this stage indicated the possession of the gold bar by the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the Respondent. 8. Having carefully perused the evidence on record and the principles of law laid down by the Hon‟ble Supreme Court in the Judgments referred to supra, I am of the considered opinion and reiterate here that, in terms of Section 245 of the Cr.P.C., the Learned Trial Court is indeed required to examine whether any case against the accused has been made out which if unrebutted, would warrant his conviction and in such a circumstance the Magistrate should discharge him. However, the Learned Trial Court cannot weigh the evidence furnished at this stage, on golden scales. The evidence is to be examined for the purposes of a prima facie case. In the instant matter it prima facie appears that gold had been smuggled into the country by the Respondent from Rinchenghang, TAR, seizure of which was made by the SHO, Sherathang P.S., in the presence of witnesses. That, in terms of Notification No.38/96-Customs dated 23-07-1996 as amended subsequently, Gold is not permitted to be imported from China into India by individuals. 9. In light of the evidence, a prima facie case has been made out by the Petitioner against the Respondent and the Order of discharge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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