2012 (6) TMI 852 - HC - Customs

Summary

Issues Involved:
1. Authority to Issue Summons
2. Retrospective Amendment and Creation of Offence
3. Competency of Officer and Validity of Summons
4. Continuing Offence and Procedural Defect

Summary:

1. Authority to Issue Summons:
The Petitioner challenged the order dated 15th January 2008, summoning them for offences u/s 174/175 IPC, and sought quashing of the criminal complaint. The Petitioner contended that the summons issued u/s 108 of the Customs Act from 13th July 2006 to 10th July 2007 were not issued by a person duly authorized by the Central Government. The authorization was given only on 20th February 2008, and thus, the Petitioner argued that no offence u/s 174/175 IPC was made out.

2. Retrospective Amendment and Creation of Offence:
The Petitioner argued that the retrospective amendment to Section 108(1) of the Customs Act could not create an offence with retrospective effect, violating Article 20 of the Constitution of India. The Respondent countered that the amendment in the Finance Act, 2008, retrospectively amending Section 108(1) of the Act, empowered the officer to issue summons, and thus, the Petitioner could be prosecuted for non-compliance.

3. Competency of Officer and Validity of Summons:
The Court noted that when the summons were issued, the officer was not authorized to do so. The retrospective amendment could not create an offence for non-compliance of summons issued by an unauthorized officer. The Court cited precedents, including Shiam Lal Vs. Emperor and Khota Ram and Ors. Vs. Emperor, to emphasize that an act or omission is not punishable unless it was an offence at the time it was committed.

4. Continuing Offence and Procedural Defect:
The Respondent argued that the offence was a continuing one, as the Petitioner had not complied with the summons till date. The Court rejected this, stating that a summon to appear is issued for a particular date and is not a continuous mandate. The Court also held that a procedural defect could not be cured retrospectively to create a substantive offence.

Conclusion:
The Court quashed the criminal complaint No. 8/1 of 2008 u/s 174/175 IPC and the order dated 15th January 2008 summoning the Petitioner, as the officer was not authorized to issue the summons at the relevant time. The Petition was disposed of accordingly.