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2019 (10) TMI 852 - HC - CustomsOver-Valuation - Coal of Indonesian Origin - Offence punishable under Section 135 of the Customs Act, 1962 - legality and validity of commencement of the investigation against the petitioner - issuance of the Letter of Rogatory by the Magistrate - provisions of Section 166-A of the Code of Criminal Procedure, 1973 - period from October 2010 to March 2016. Whether it was permissible for the Magistrate to issue such a Letter of Rogatory without following the procedure mandates by sub-section (2) of Section 155 and whether the letter of Rogatory was issued on initiation of a valid investigation under Chapter XII of Cr.P.C.? HELD THAT:- Though the Customs Act, 1962 classifies the offence punishable thereunder as cognizable/non-cognizable, it do not lay down any set of procedure for dealing with the information received by the Custom Officer for proceeding under the provisions of the Act. It also do not define the term “cognizable/non-cognizable” and in absence of such a definition, the terms take the meaning assigned in the Code of Criminal Procedure. In absence of any set of procedure for commencing the so-called ‘investigation’ in words of the learned senior counsel Shri Maninder Singh, though the statute applies the phrase ‘inquiry’ for commencing conducting and culminating a valid investigation into the distinct classes of offences, the position that would therefore emerge is to resort to sub-section (2) of Section 4 in relation to an investigation into an offence under the special statute and in absentia of any provision setting out the modalities for commencing, conduct and culmination of investigation. In absence of any overriding provision in the Customs Act, stipulating any contrary procedure, relating to an information received and the manner in which the Custom Officer, who for limited purpose posses the power of a police officer, by virtue of Section 4(2) of the Code, the respective provisions in the Code relating to dealing with the information requiring an inquiry/investigation into the offences classified as cognizable/non-cognizable shall necessarily follow. In ILLIAS VERSUS COLLECTOR OF CUSTOMS, MADRAS [1968 (10) TMI 48 - SUPREME COURT], the Constitution Bench has held that the custom authorities have been invested with many powers akin to that of a police officer in matter relating to arrest, investigation and search which was not there in the earlier Customs Act. Even though the custom officers possess the said power, they do not become police officials within the meaning of Section 25 of the Evidence Act and it was held that the confessional statements made by the accused persons to custom officers would be admissible in evidence against them. Since we are of the express opinion that Section 166A is not an independent island on which any investigating/inquiring authority can jump on without taking recourse to Section 154/155, we hold and declare that the action of the respondents in giving effect to the letter of Rogatory issued by the learned Metropolitan Magistrate, Mumbai in relation to the import of coal of Indonesian origin cannot be sustained and it deserves to be quashed and set aside. Petition allowed.
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