TMI Blog2013 (3) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the said consignment on 08.01.2008 in presence of the proprietor of Kartik Traders, his custom house agent, two independent witnesses and officers of Wildlife Crime Control Bureau. The Petitioner was summoned by the Customs Officer to appear before him on 11.01.2008 along with all import and sale documents for the last five years in respect of earlier said M/s. Kartik Traders. The summons were handed over to the father of the Petitioner on 11.01.2008 at about 2:00 am. Since the Petitioner was out of town, he wrote a letter to the Respondent and expressed his inability to appear on 11.01.2008. However, the Petitioner showed his willingness to appear after 5-7 days. Another summons were issued for the Petitioner s appearance on 22.01.2008 at 2:00 pm. The Petitioner again sought 10 days time as his wife was not keeping good health and was under medication. The instant complaint under Sections 174 and 175 of the Indian Penal Code(IPC) was filed by the Respondent against the Petitioner on the ground that the Petitioner had committed an offence punishable under Sections 174 and 175 IPC as he intentionally omitted to appear before a public servant although he was to appear before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms to summon any person to give evidence. By Section 25 of the Taxation Laws Amendment Act, 2006 Section 108 of the Customs Act was amended with effect from 13th July, 2006 and it entitled a Gazetted officer of Customs specifically empowered by the Central Government in this behalf to summon a person, to give evidence or produce documents. By M.F.(D.R.) Notification No. 8/2008-Cus.(N.T.) dated 20th February, 2008 Central Government empowered all Gazetted officers of the Customs for the purpose of Section 108 of the Customs Act. By Section 69 of the Finance Act, 2008 Section 108 (1) of the Act was amended so as to remove the words duly empowered by the Central Government in this behalf . This Finance Act came into force on 10th May, 2008 however the amendment was made retrospectively with effect from 13th July, 2006. It would be thus evident that when the summons were issued, Respondent No.2 was not empowered by the Central Government to summon a person, to give evidence or produce documents under Section 108 of the Customs Act. This empowerment was conferred on 20th February, 2008, and thereafter the words duly empowered by the Central Government in this behalf were deleted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to attend his Court in order to enable the Tahsildar to ascertain whether there was any incumbrance on the property ordered to be sold. Shiam Lal did not attend and thereupon he was prosecuted and sentenced as stated above. In order to sustain a conviction under Section 174 it must be shown that the summons issued was issued by a public servant legally competent as such public servant to issue the same and the accused intentionally omitted to attend in pursuance of the summons. In this case under the rules framed by the Local Government in regard to the sale of ancestral land, the Collector is empowered to summon any person whom he thinks it necessary to summon for the purpose of ascertaining the matters to be specified in the proclamation of sale and under rule 44 he can delegate his powers only to an Assistant Collector of the first Class. He could not delegate his authority to an Assistant Collector of the second class and, therefore, the Tahsildar, was not legally competent to issue the summons which Shiam Lal did not obey. Furthermore, in this case there is nothing to show that the non-compliance with the summons was intentional. Under these circumstances the conviction of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces and hence unconstitutional. This contention raises two important questions, viz., (1) the proper construction of Article 20 of the Constitution and (2) whether the various acts in respect of which the appellants were convicted constituted offences in this area only from the date when Ordinance No. 48 of 1949 was passed or were already so prior thereto. 8. Article 20(1) of the Constitution is as follows : No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This Article, in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre‟, (1870) 6 Q.B. 1, at pp 23 and 25 (D), and also by the Supreme Court of U.S.A. in Calder v. Bull‟ (1798) 3 Dallas 386; 1 Law Ed 648 at p. 649 (F).]. In the Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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