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TMI Blog2011 (3) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... declined the request. In fact, two separate petitions were filed before the trial court by the accused, i.e., CMP No. 4074 of 2010 by accused Nos. 1, 2 and 3 and CMP No. 4075 of 2010 by accused Nos. 5 to 8. C.C. No. 592 of 2007 is instituted on the basis of the complaint preferred by the Assistant Commissioner, Customs Preventive Division, Kochi for the offences punishable under Sections 132 and 135 of the Customs Act, 1962. The allegation which led to the filing of the above complaint is that while accused Nos. 3 and 4 were travelling in a car on 8-5-2003, the same met with an accident near Chavakkad and that on examination of the above vehicle, it was found that Indian Currency valued about Rs. 48 lakhs were concealed in a specially made cavity inside the above car. Subsequently, the officers of the DRI, Cochin, who conducted investigation into the above matter, found that the said currencies were the sale proceeds of smuggled gold of foreign origin. On questioning, accused Nos. 3 and 4 have stated before the D.R.I, that the said currencies were being brought from a gold refinery with the name and style M/s. Balaji Jewellery, Trichur and the same was done under the instruction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above mentioned two petitions for discharge. After hearing the prosecution as well as the defence, the learned Magistrate came to the conclusion that the preliminary evidence would show that the goods involved in these cases are smuggled gold bars, the sale proceeds of which are said to have been carried by accused Nos. 3 and 4. It is the further finding of the learned Magistrate that the evidence brought out under Section 244 of Cr.P.C. with regard to fabrication of invoice and bills for the smuggled gold bars transacted by the accused would clearly make out the offence under Section 132 of the Customs Act, 1962. It is the above finding and observations and order as such challenged in these two separate revision petitions. 4. I have heard Sri. D. Peethambaran, learned counsel appearing for accused Nos. 5, 6 and 7, who preferred Crl.R.P.No. 3848 of 2010 and Sri. M.Ramesh Chander, learned counsel appearing for accused No. 8, who preferred Crl.R.P.No. 3803 of 2010 and Sri. P.C. Iype, Special Public Prosecutor for Customs. I have also perused the orders impugned and the materials produced along with this Crl.R.Ps. 5. Sri. D. Peethambaran, learned counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the possession etc. It is also the submission of the learned Public Prosecutor that Section 132 of the Customs Act is also attracted since the allegations and materials disclose that invoice was forged for the purpose of commission of offence. Therefore, according to the learned Public Prosecutor, the trial court has correctly rejected the request of the accused for discharge and no interference is warranted. 8. I have carefully considered the arguments advanced by the counsel for the revision petitioners as well as the learned Special Public Prosecutor. I have also perused the order of the learned Magistrate and also perused the materials produced along with this Crl. R.P. 9. On a reading of Section 135, it is crystal clear that the penal provision under Section 135(1)(a)(i) of the Customs Act would attract if the prosecution succeeds in establishing that if any person is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take cognizance for the offence under Section 132 of the Customs Act is a matter to be considered by the trial court at the time of framing of charge, on the basis of the materials and evidence on record. The learned Magistrate is free to consider whether, in the given facts and circumstances of the case, especially in the light of Annexure-I sanctioning order issued by the Commissioner for the offence under Section 135 of the Customs Act, a separate order is necessary for the offence under Section 132 of the Customs Act. 11. Regarding the contention raised by Sri. Ramesh Chander, counsel appearing for the eighth accused, it is to be noted that in the sanctioning order itself, it is stated that it is the eighth accused who handed over the currency notes of Rs. 47,00,500/- to Sri. Abdul Kareem and Sharafuddin, who are accused Nos. 3 and 4. It is also relevant to note that as per the prosecution allegation, the seized gold bars were sent to him as per order placed by him with Hamza. The eighth accused, who belongs to Maharashtra State, is the employee of M/s. Balaji Jewellery and as per the allegation, it is the eighth accused who handed over the currencies to accused Nos. 3 an ..... 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