2013 (3) TMI 683 - HC - Customs

Summary

Issues Involved:
1. Invocation of inherent powers u/s 482 of the Code of Criminal Procedure.
2. Validity of the summoning order and complaint under Sections 174 and 175 of IPC.
3. Retrospective amendment of Section 108 of the Customs Act and its implications.
4. Application of Article 20 of the Constitution of India.

Summary:

Invocation of inherent powers u/s 482 of the Code of Criminal Procedure:

The Petitioner sought to invoke the inherent powers of the High Court u/s 482 of the Code to set aside the summoning order and quash the complaint for offences punishable under Sections 174 and 175 of IPC.

Validity of the summoning order and complaint under Sections 174 and 175 of IPC:

The Petitioner was summoned by the Customs Officer to appear with import and sale documents. The Petitioner failed to comply with the summons due to personal reasons. The complaint was filed against the Petitioner for offences under Sections 174 and 175 IPC on the grounds of intentionally omitting to appear before a public servant and failing to produce the required documents.

Retrospective amendment of Section 108 of the Customs Act and its implications:

The Petitioner's counsel argued that at the time of issuance of the summons, the customs officer was not duly empowered by the Central Government as required by Section 108 of the Customs Act. The amendment in Section 108, which came into force retrospectively, cannot make the Petitioner liable for non-compliance of the summons issued by an officer who was not duly empowered at that time.

This argument was supported by a judgment in Rakesh Kumar Goyal v. NCT of Delhi & Anr., where it was held that a retrospective amendment can confer procedural competency on an officer but cannot create an offence retrospectively.

Application of Article 20 of the Constitution of India:

The Court agreed that making an action punishable retrospectively by an amendment would be hit by Article 20 of the Constitution of India, which prohibits convictions under ex post facto laws. Therefore, the complaint under Sections 174 and 175 IPC and the summoning order dated 16.07.2011 were quashed.

Conclusion:

In light of the retrospective amendment and the protection under Article 20 of the Constitution, the High Court quashed the complaint and the summoning order, thereby disposing of all pending applications.