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TMI Blog1983 (2) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s. H. Mohanlal Co., situated at New Market, Calcutta, of which he was the partner-in-charge of the business. He was found guilty by the Metropolitan Magistrate, Calcutta and sentenced to undergo R.I. for 6 months and to pay a fine of Rs. 2,000, in default R.I. for 6 months more. The seized goods, namely, material exhibits I and II were ordered to be confiscated. 3. On appeal to the City Sessions Court, the learned lower appellate court found that the goods not having been recovered from the person of the accused independent of his character as a partner of the company the case attracted the provisions of Section 140, Customs Act. Relying upon an un-reported decision of this Court in the case of Krishna Swamp Agarwalla v. State (Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the facts of the case before us. 6. In order to appreciate the points thus urged on behalf of the appellant it is necessary to examine what exactly is the case of the appellant against the respondent. The case was briefly as follows : 7. On 18th September, 1974, a batch of Customs Officers searched a shop styled Messrs H. Mohanlal Co. in course of which some imported goods were recovered from the shop for the possession of which the accused could not give any satisfactory explanation. The goods seized comprised amongst other things-wrist watches and fountain pens which were believed to be smuggled into India and which had not been entered in the relevant register of the shop even though it was a notified shop and as such the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different unknown brokers without any bill or voucher knowing that these goods were smuggled and that the brokers were for that reason unable to produce any legal document for acquisition/importation/possession of the goods. Nor did the accused insist upon the same. He conceded having kept those goods concealed in different secret chambers. 8. These statements contained endorsement to the effect that they were explained to the person concerned. The statements undoubtedly bear the signature of the accused in Hindi. The two statements were recorded by P.Ws. 4 and 5. Both of whom stated that the statements were made voluntarily in Hindi and English, that the statement was recorded in English and explained to the accused who admitted the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o record a statement to the effect that it was read over and explained to the accused and admitted by him to be correct caused prejudice to the accused cannot be supported. Factually, there are endorsements that the statements were explained to him. There is evidence that the statements were admitted to be correct before the accused signed the same and there was no effective cross-examination so far as that aspect was concerned. Therefore, we are unable to agree with the learned lower appellate court that this had caused any prejudice to the accused. 10. The only point that remains to be considered is whether by reason of the provisions of Section 140, Customs Act, the prosecution as against the respondent alone was maintainable. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused was accordingly called upon to answer a charge under Section 135 (b), Customs Act. One of the points urged by the accused in that case was non-compliance of the provisions of Section 140, Customs Act. Relying upon a decision in the case of State of Madras v. C.V. Parekh - AIR 1971 S.C. 447 this Court held that the liability of the person in-charge of the company arises only when the contravention is by the company itself and since the company was not made a party and was not charged at all with the offence, the liability of the person-in-charge could not arise and the proceedings are vitiated by such non-compliance of the provisions of Section 140 (1), Customs Act. The facts of that case as stated hereinbefore are almost identical. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icarious liability. As the corporation itself cannot be executed or punished the liability is to be imputed to its high managerial agents who are responsible for the conduct of its business. The person is liable because his action is the very action of the company itself. The position may, however, be different if the person charged, though a partner of a firm, is charged in his individual capacity and not in his capacity as a partner. In the instant case the prosecution's allegation is not that the respondent personally had contravened the provisions of the Act and thereby made himself liable under Section 135, Customs Act. The prosecution clearly is that the goods seized were from the place of the business of the firm and the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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