TaxTMI 
TaxTMI 
2012 (11) TMI 83
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....voluntary statement before the custom officers, admitting the recovery of the gold biscuits and confessed that he had been working in Abu Dhabi for the last 3-4 years. He brought the said biscuits to Ludhiana, and for this job he was to get commission of Rs.4,000. Consequently, the Petitioner was arrested by the custom officers after following the due procedure under Section 104 of the Act. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to Complainant-Respondent Assistant Collector, Customs (for brevity "the Complainant") that since the unaccounted smuggled 79 gold biscuits with foreign markings were recovered, so, the Petitioner is liable to be prosecuted. After obtaining the requisite sanction and in the background of these allegations, the Complainant filed the complaint (Annexure P2) against the Petitioner for the commission of offence punishable under Section 135 of the Act in the manner indicated hereinabove. 3. The Petitioner-accused did not feel satisfied and preferred the present petition for quashing the impugned complaint (Annexure P2) and all other subsequent proceedings arising therefrom, invoking the provisions of Secti....
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....t when gold biscuits do not belong to the Petitioner, he cannot be charged under Section 135 of the Customs Act and the very allegation leveled against him in the complaint is an abuse of the process of law. 6. The Complainant refuted the prayer of the Petitioner and filed the reply, inter alia, taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the Petitioner. According to the Complainant, that the trial Magistrate, after hearing lengthy arguments and having repelled the similar contentions, has chargesheeted the Petitioner for the commission of offence punishable under Section 135 of the Act, by means of orders (Annexure P3 and P4) and this petition is not maintainable. It was alleged that there are specific allegations in the complaint (Annexure P2) that the gold biscuits of foreign markings were recovered from the possession of the Petitioner, which were seized and taken into possession, vide recovery memo under Sections 110 and 111 after completion of all the formalities. The Petitioner-accused voluntary admitted and made his statement under Section 108 of the Act, wherein he did not disclose that he had stolen the g....
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....confessed his guilt of theft of gold biscuits. On the basis of his confession, he was convicted and sentenced by the Metropolitan Magistrate, vide judgment of conviction and order of sentence (Annexure P1). If the epitome of the facts mentioned hereinabove, is put together, then, the conclusion is irresistible that the Petitioner, with the connivance of other persons, enacted and managed to stage the indicated drama, perhaps in order to create a false defence to wriggle out from the rigors of complaint (Annexure P2). 11. Sequelly, to me, the judgment (Annexure P1) based on the confessional statement of the Petitioner, would not, in any manner, debar the Complainant to prosecute him in a separate complaint under Section 135 of the Act. Therefore, the question of double jeopardy did not arise at all in this respect, as contrary urged on his behalf. 12. There is another aspect of the matter, which can be viewed from a different angle. As indicated earlier, the complaint (Annexure P2) has been filed against the Petitioner for the commission of offence under Section 135 of the Act, which postulates as under: 135. Evasion of duty or prohibitions - (1) Without prejud....
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....Petitioner, has got nothing to do with the controversy involved in the complaint (Annexure P2) in this relevant connection. 15. Likewise, the questions, scope and jurisdiction of this Court for quashing a complaint at the initial stage of the trial under Section 482 Cr.P.C. are not res Integra. It is well-settled proposition of law that in case, on the bare reading, the offences are made therefrom, no order can be made for quashment of criminal prosecution. Such criminal prosecution at the initial stage can be quashed in the rarest of the rare cases, only if it is proved that the same was lodged maliciously or vexatiously in order to wreak vengeance and not otherwise, in view of the law laid down by the Hon'ble Apex Court in a celebrated judgment in case State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. AIR 1992 SC 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R. (Criminal) 92. 16. An identical question came to be decided by the Hon'ble Supreme Court in a recent judgment in case Jeffery J. Diermeier and Anr. v. State of West Bengal and Anr. 2010 (3) R.C.R. (Criminal) 183. Having interpreted the scope of Section 482 Cr.P.C. it was ru....
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...., there is a mention that the biscuits had been imported into India by Resham Lal and Hanif and they had paid the custom duty at the Airport, but there is no evidence to substantiate the said recitals. In the matter before the learned Metropolitan Magistrate, the question as to if the said biscuits had been imported legally into India or the same had been imported in an lawful manner was not involved. Moreover, the possibility of the said case having been got registered by the accused against himself in connivance of the Complainant etc. cannot be ruled out. The alleged theft of gold biscuits was committed by the accused on 27th May, 1994. However, it is strange that Resham Lal and Hanif, who were claiming that they had imported the gold biscuits into India in a lawful manner, did not report the matter to the police up to 5th July, 1994. When they were having knowledge about the identity of the accused, there is no reason as to why they did not lodge any report with the police up to 5th July, 1994. They had got registered a case under Section 379 IPC against the accused at P.S. Tilak Nagar after the gold had already been seized by the Custom Officers and when the accused was in cus....