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TMI Blog2023 (8) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... including one Mr. Anil Kumar Langan, father of the petitioner herein, were intercepted at the IGI Airport on 29.04.2017 on the basis of a specific intelligence to the effect that a syndicate was involved in smuggling of arms and ammunitions from Slovenia to India and that members of the said syndicate would be arriving at Terminal-3, IGI Airport, New Delhi, carrying prohibited items by way of concealment either in their hand/checked-in baggage or on person to try to smuggle the same without declaring before the Customs and without payment of customs duty leviable thereon. Further, the father of the petitioner utilized the petitioner's Arms and Ammunition License [License] issued by the Delhi Police and the Renowned Shooter Certificate issued by the National Rifle Association of India [NRAI] for importing weapons using bogus Invoices and by suppressing the true value and description of the weapons, and without the recommendation of NRAI. 3. In the proceedings before the Senior Intelligence Officer, DRI, the petitioner in her statement under Section 108 of the Act, recorded on 20.06.2017 submitted that on the date of incident i.e., 29.04.2017, she was not in Delhi and was at Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner is being prosecuted for offences committed by her and not vicariously for the offences committed by her father. Thereafter, relying upon K.I. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate (1997) 3 SCC 721, he submits that the statement made under Section 108 of the Act is cogent and legal and can solely lead to conviction. 7. This Court has heard and deliberated upon the submissions advanced by both the learned counsel for the petitioner and the learned Senior Standing Counsel for DRI and has perused the documents on record. 8. Considering the factual matrix involved and the arguments addressed, this Court is primarily concerned qua the legal issue of maintainability of the petition in the present form and also if the petitioner, under the given circumstances, can be made liable for the alleged offences as per the complaint. 9. Qua the sole legal issue of maintainability of the present petition, it is pertinent to note that the powers under Section 482 Cr.P.C. are not powers conferred by the statute but are powers saved thereunder, and thus the remedy of revision being available cannot itself be construed to bar the jurisdiction of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced as under:- "Q. Did you order anybody to import arms and ammunition from Slovenia in the month of April, 2017? Ans: No I did not order, all the purchase of arms and ammunition is done by my father on my behalf. My father decides which arms are to be purchased or imported. ...... Q: How many arms and ammunition do you possess? Ans: I am not exactly aware how many arms I have as my father keeps track of all the paper work and arms and ammunitions. I am only concerned with the shooting competitions, he can better explain about arms and ammunition in my license and those found in my house during the search on 29.4.2017 Q; Please tell me the cost of the pistols being owned and used by you? Ans: My father buys the weapons for me so I have no knowledge regarding the same. Q: For how many arms and ammunitions have you applied for import permit from NRAI? Ans: My father deals with application for arms and ammunition needed for my sport from NRAI and Licensing Authority. I have no knowledge regarding the same..." 13. It is the general practice in most, if not all, Indian families that a student studying in School/ College/ University and that too when it happen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Table- XX in para 27.2 above without the recommendations of NRAI." 17. Even the report of the DRI seeking sanction for prosecution, holds that the petitioner had no direct connection in the commission of the alleged offences. The relevant extract of the report of DRI is as under:- "19.8: Role of Disha Langan: On enquiry she was found to be a genuine shooter and was not found directly involved with the syndicate but she had allowed her license to be used by her father Anil Kumar Langan for import of firearms through baggage in her name using bogus invoices to suppress the true value of the arms so imported as listed in Table-XX in para 27.2 of the said show cause notice." 18. This shows that while DRI in its complaint stated that the petitioner allowed her License to be used by her father for importing arms in her name, however, in the report seeking sanction for prosecuting the petitioner, it is stated that "... ...was not found directly involved with the syndicate". 19. Resultantly and based on the aforesaid existing position as on date, in the opinion of this Court, there were no sufficient grounds for the learned Chief Metropolitan Magistrate to issue summons unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 1973 Code, there may lie an exemption from recording pre-summoning evidence when a private complaint is filed by a public servant in discharge of his official duties; however, it is the duty of the Magistrate to apply his mind to see whether on the basis of the allegations made and the evidence, a prima facie case for taking cognizance and summoning the accused is made out or not. This Court explained the reasoning behind this exemption in National Small Industries Corporation Limited v. State (NCT of Delhi): "12. The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. (See Nirmaljit Singh Hoon v. State of W.B.) Where the complainant is a public servant or court, clause (a) of the proviso to Section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is of the considered opinion that she ought not to be punished for the alleged acts of her father solely on the pretext of her License being used by him. 25. Accordingly, the present petition is allowed and the Criminal Complaint No. 14924/2018 filed by the DRI for offences punishable under Sections 132 and 135(1)(a) and (b) of The Customs Act, 1962 pending in the Court of the learned Chief Metropolitan Magistrate, Patiala House Court, New Delhi is quashed against the petitioner herein. Consequently, order dated 22.10.2018 and all the other proceedings emanating from the said complaint also stand quashed qua the petitioner. 26. Needless to state, observations, if any, made by this Court on the merits of the matter, have only been made for the purposes of deciding the present petition filed by the petitioner, and hence, such observations shall not be construed as expressions on merits of the matter. 27. It is further clarified that the proceedings in Criminal Complaint No.14924/2018 against the remaining accused persons shall continue in accordance with law. 28. The petition alongwith the pending application stands disposed of. -------------- Notes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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