Recording statement of accused is necessary pre-condition, before initiating proceedings for evasion of custom duty

[CA Bimal Jain]

The Hon’ble Madras High Court in J. ANANAD, K. SIVAMANI VERSUS THE ASSISTANT COMMISSIONER OF CUSTOMS CUSTOMS DIVISION, NAGAPATTINAM [2022 (8) TMI 341 - MADRAS HIGH COURT] held that, the Magistrate without examining any witnesses cannot take cognizance on the complaint lodged by the complainant and issue summons to the accused. The Magistrate has the option to either comply with Section 200 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) wherein the complainant or such other witnesses present upon taking cognizance are examined, or to postpone the enquiry process under Section 202 of Cr.P.C. Further, held that the Magistrate cannot take cognizance as against the accused before recording their statements.

Facts:

The Assistant Commissioner of Customs, Customs Division. Nagapattinam (“the Respondent”) on the basis of intelligence, conducted road checks and intercepted vehicle. During the road checks, they apprehended two occupants namely J.Ananad and K.Sivamani (“the Petitioner”) for smuggling gold biscuits of foreign origin weighing about 15Kg. Subsequently, a complaint was filed before the Magistrate along with the information about the smuggled gold.

The Petitioners submitted that the Magistrate without examining any of the witnesses and without following mandatory provisions under Cr.P.C like recording of statement of witnesses, straightaway issued summons to the Petitioners.

Issue:

Whether issuance of summons by the Magistrate without recording the statement of accused is tenable in law?

Held:

The Hon’ble Madras High Court in J. ANANAD, K. SIVAMANI VERSUS THE ASSISTANT COMMISSIONER OF CUSTOMS CUSTOMS DIVISION, NAGAPATTINAM [2022 (8) TMI 341 - MADRAS HIGH COURT] held as under:

• Held that, the Magistrate, as per Section 200 of the Cr.P.C., can either take cognizance and examine the Appellant and such other witnesses, who are present, or can opt for the option of conducting an enquiry by postponing the issue of process under Section 202 of Cr.P.C. Therefore, either he can issue process or dismiss the complaint under Section 203 of Cr.P.C.
• Further held that, the Magistrate cannot take cognizance as against the Petitioner before recording their statements.
• Quashed the proceedings of the Magistrate, Nagapattinam and granted liberty to the Petitioner to file a petition under Section 245(2) of Cr.P.C., in the manner known to law.

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