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TMI Blog2024 (7) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... back in 2019 with two children behind should not have been troubled and harassed by the Customs Department as it is apparent from the record - This is a fit case in which this Court would invoke it s powers under Section 482 of the Cr. P.C for doing complete justice. The power under Section 482 of the Cr. P.C is to be exercised ex debitio justitiae to prevent abuse of Court. It should not, however, be exercised to stifle legitimate prosecution. The power has to be exercised very sparingly and with circumspection, that too, in the rarest of rare cases. The whole purpose is to advance justice and not to frustrate it - There is sufficient evidence on record bearing on the conduct of the respondent No. 2 justifying some remarks which is necessary for the decision of the case as an integral part thereof to animadvert that conduct. In case of ANWAR VERSUS THE STATE OF J. AND K. [ 1970 (7) TMI 83 - SUPREME COURT] , it was held that the rights under Articles 20, 21 and 22 are available not only to citizens but also to persons which would include non-citizens . Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was carrying any prohibited goods, contraband or gold in the baggage or on her person. Upon her search and screening of her baggage, the officials suspected some thing indicating presence of heavy metal in her cabin baggage. Subsequently, it revealed ten yellow metal bars of foreign marking weighing 1 kg each purported to be gold in her baggage. It was seized by following due procedure. Those ten metal bars weighing one k.g each were found to be 24 carat gold weighing about 10,000 grams valued at Rs. 3,38,83,200/-. 7. After completing the formalities and recording her statement under Section 108 of the Customs Act, 1962, she was booked under Sections 135 (1) (a) and 135 (1) (b) punishable under Section 135 (1) (i) of the Customs Act, 1962 for procurement and smuggling of gold into India. She was arrested and remanded to judicial custody. 8. The learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai after recording her plea and having examined the prosecution witnesses, by a judgment and order dated 10th October, 2023 acquitted the petitioner of the offence with which she was charged. It was an acquittal on merits. She was, inter alia, directed to furnish P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation punishable under section 135 (1) (i) and section 132 of the Customs Act, 1962 for making any declaration which was false in any material particular. In respect of mens-rea and burden of proof when the seizure itself is not proved no question of application of provisions of these sections. Therefore the prosecution failed to prove by cogent, corroborating and reliable evidence beyond reasonable doubt that accused contravened the provisions of Customs Act in respect of seized gold and committed offence under it is alleged. Hence, from the above discussion, I answer point nos. 1 to 3 in negative and in answer to point no. 4, I pass the following order: ORDER i. Accused Ms. Cong Ling is hereby acquitted of the offence u/sec 135 (1) (a), 135 (1) (b) punishable under section 135 (1) (i) and section 132 of the Customs Act, 1962 vide section 248 (1) of the Code of Criminal Procedure, 1973. ii. The bail and bonds of accused during trial stand cancelled. iii. Accused shall furnish a Personal Bond of Rs. 50,000/- with Cash Bail in the like amount under section 437-A of the Code of Criminal Procedure, 1973 binding her to appear before the Higher Court as and when such court issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. The only so called reason to oppose Exit Permit to the petitioner by the respondent No. 2 is that respondent No. 2 is under process of challenging the order passed by the learned Additional Sessions Judge in Criminal Appeal No. 839 of 2023 before this Court. 20. Admittedly, till date, respondent No. 2 has neither challenged the said judgment dated 2nd February, 2024 nor anything is produced on record to show that, in fact, respondent No. 2 intends to challenge the impugned judgment and order. Learned Counsel for the petitioner submits that the period of limitation has also expired. 21. Mr. Singh, learned Counsel appearing for respondent No. 1 FRRO, on instructions, made a statement across the bar that the FRRO has no objection to issue Exit Permit to the petitioner, however, in view of the LOC issued by the Customs Department, they are unable to issue the same. 22. Ms. Anuradha Mane, Special P.P appearing for respondent No. 2 would argue that they are under process of challenging the impugned judgment and order of acquittal rendered by the learned Additional Chief Metropolitan Magistrate and confirmed by the learned Additional Sessions Judge by dismissing it s Appeal on 2nd Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time . (emphasis supplied) 26. Circulars issued by the board are binding on the Customs Department and the Department is precluded from challenging it s correctness even on the ground if the same are inconsistent with the statutory provisions is the ratio decidendi. 27. As a matter of fact, respondent No. 2 ought to have filed an appeal against acquittal before this Court in view of Section 378 (4) of the Cr. P.C apart from the Circular which requires prior approval which is a sine qua non for filing an appeal. The learned Additional Sessions Judge has, therefore, rightly observed that he had no jurisdiction to entertain an appeal against acquittal. 28. No sane man will accept the argument of the Special P.P that the respondent No. 2 intends to challenge the order of acquittal rendered by the Additional Sessions Judge before this Court in the teeth of the Circular dated 23rd October, 2015 referred hereinabove and the decision in case of Paper Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts to gross abuse of its powers in restricting the petitioner to leave for her country without any justification. It has been rightly argued by the learned Counsel for the petitioner that conduct of the respondent No. 2 is reprehensible and unbecoming of a responsible officer/s of the Customs Department. The prosecution does not say that the petitioner had violated conditions of VISA. 33. The petitioner, who is a lady, having left her country way back in 2019 with two children behind should not have been troubled and harassed by the Customs Department as it is apparent from the record. The way and manner in which a foreign national is being treated by the respondent No. 2 would reflect in the bilateral relations between two countries. This is nothing but victimizing the petitioner without any reason. This is a fit case in which this Court would invoke it s powers under Section 482 of the Cr. P.C for doing complete justice. The power under Section 482 of the Cr. P.C is to be exercised ex debitio justitiae to prevent abuse of Court. It should not, however, be exercised to stifle legitimate prosecution. The power has to be exercised very sparingly and with circumspection, that to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Article 9 of the Universal Declaration of Human Rights, 1948. 38. It would be advantageous to quote para 32, which reads thus; 32. The word LIFE has also been used prominently in the Universal Declaration of Human Rights, 1948. (See Article 3 quoted above.) The fundamental rights under the Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Covenants of Economic, social and Cultural Rights, to which India is a party having ratified them, as set out by this Court in Kubic Darusz v. Union of India, (1990) 1 SCC 568. That being so, since LIFE is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this Court in its various decisions relating to Article 21 of the Constitution. The meaning of the word life cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country, but also to a person who may not be a citizen of the country . 39. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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