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TMI Blog2006 (4) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... nue Intelligence to the effect that the documents produced for clearance of the vehicle were forged. The officers of Directorate of Revenue Intelligence intercepted the vehicle at Air Cargo Complex. Thiruvananthapuram on 11-2-1998. The chassis number stated in the documents tallied with the chassis number inscribed in the vehicle. The engine number given in the document was No. 10499422037783 but the number found in the engine was R 1040162406. The statement of the first accused was recorded by the Senior Intelligence Officer. One Ali Mubarak appeared before the Officer voluntarily. His statement was recorded on 16-2-1998. 3.The first respondent filed a complaint alleging that the importer had violated the condition Nos. (a) and (c) of the Public Notice dated 31-3-1997. It was alleged that the car was purchased by the petitioner from Ali Kalifa from South Ampton and was imported to Dubai in the year 1996. The records were manipulated to appear that the vehicle was imported in the year 1995 in the name of the first accused in an unlawful manner. It was also alleged that no payment was made towards the value of the car in Dubai before the return of the accused. It was also alleged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In such cases, the Magistrate may on the application of the prosecution, issue summons to any witnesses directing him to attend the court to give oral evidence or to produce any document or other thing. After the examination of the witnesses, the Magistrate may hear the Prosecutor and if he finds that there are prima facie materials for framing charges, the charges can be framed. Section 245(1) Cr.P.C. provides that if upon taking all the evidence referred to in Section 244, 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, the Magistrate shall discharge the accused. Sub-section (2) of Section 245 provides that even before that stage, the Magistrate can discharge the accused in case he considers the charge to be groundless. It is well settled position of law that the accused has no statutory right to cross examine a witness examined at the stage of Section 244. But the records of this case show that while recording the evidence of the prosecution witnesses under Section 244 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the car given in the document was 10499422037783. But the number of the engine fitted in the car was R. 1040162406. The records also show that the vehicle tallying with the Engine Number and chassis number was registered in Dubai in the year 1996 only. According to the petitioner, even accepting the contention of the complainant that the car was only imported on 4-7-1996, the vehicle was brought to India after the period mentioned in the public notice and hence no offence is made out. 9.The materials on record show that the chassis number of the vehicle is established as that of Mercedez Benz. The complainant proceeded on the assumption that the engine fitted to the car was actually manufactured by Mercedez Benz Company and usually fitted to the model S. 320. But whether the engine fitted to the disputed car was actually manufactured by the Mercedez Benz Company was not seen verified with the Company. How far the car now imported can be treated as a 3200 CC Mercedez Benz Car S. 320 itself is doubtful. The evidence adduced by the complainant shows that chassis alone is that of a model S. 320 Mercedez Benz. But that alone is not sufficient to hold that the car is actually a mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be attested in any particular manner. It is also very pertinent to note that -the relationship between the petitioner and Ali Mubarak is not disputed. If as a matter of fact, Ali Mubarak had appeared before the Magistrate without the knowledge and consent of the petitioner, he could have very well objected to the authority of Ali Mubarak at the appropriate time. The entire attempt made by the petitioner during the cross-examination of P.W.-4 was to prove that P.W.-4 was not acquainted with the signature and handwriting of the petitioner and that was not signed in his presence. An authorisation is produced because the actual person is not able to appear before the competent officer. It is not the law that the person who gives an authorisation shall appear before the competent officer along with the person in whose favour he proposes to give an authorisation and sign the same in the presence of the competent officer. It is too late to raise a contention that the authorization produced by Ali Mubarak before P.W.-4 was not an authorization given to him by the petitioner. That is a document properly proved and admitted in evidence. The genuineness or admissibility of the same cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power to examine a person is given under Section 107 of the Customs Act also. Section 107 reads as follows:- "Power to examine persons. - Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with smuggling of any goods. require any person to produce or deliver any document or(a) thing relevant to the enquiry; examine any person acquainted with the facts and(b) circumstances of the case." So any officer of the customs empowered in this behalf by general or special order may examine any person acquainted with the facts and circumstances of the case during the course of any enquiry. Section 108 confers additional power to issue summons also. But that does not mean that unless the Customs Officer issues summons, he cannot examine any person acquainted with the facts of the case and record his statement and even if such a person voluntarily gives statement, that cannot be relied on for any purpose. Even without summons any person can appear before the Customs Officer and can give a statement. But when a statement is recorded under Section 107 or 108 of the Customs Act, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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