TMI Blog2012 (6) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to the summons issued, no offence under Sections 174/175 IPC is made out and thus the learned Trial Court erred in taking cognizance on the complaint filed by the Respondent and issuing summons to the Petitioner. It is further contended that by way of retrospective amendment to Section 108 (1) of the Customs Act, an act, which was not an offence when the Petitioner was required to appear and produce documents by various summons and letters, cannot be made an offence with retrospective effect. This violates the Constitutional guarantee provided under Article 20 of the Constitution of India. Reliance in this regard is placed on Star India Pvt. Ltd. Vs. Commissioner of Central Excise, (2005) 7 SCC 203 and Superintendent Narcotics Control Vs. Parash Singh, (2008) 13 SCC 499. It is next contended that the Customs Act is a self- contained Act and provides penalties and consequences of any non- compliance of its provisions under Section 117 of the Customs Act and thus assuming, though not admitting, that there was non-compliance, no action under Section 174/175 IPC could be taken. Since the Customs Act is a special statute and declares various acts as set out from Sections 132/13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment have not been challenged and in absence thereof, this Court in a petition under Section 482 cannot hold that the Officer was not duly empowered and competent to issue summons for appearance to the Petitioner, consequently, the Petitioner can be prosecuted for non-compliance of the summons issued by the Customs Officer. The essential requisites of Section 108 of the Customs Act are either to give evidence or to produce a document or any other thing in any enquiry . Thus, these are all procedural aspects for which any retrospective amendment can be made. When an enquiry is conducted the person summoned cannot be informed in advance about the nature of enquiry and it is only on enquiry, offence, if any, committed can be ascertained. Referring to the summons issued and the replies of the Petitioner, it is stated that there was continuous default in appearance which default continues till today and in view thereof this being a continuing offence thus the provisions of Section 468 Cr. P. C. does not apply. The moment the notification giving retrospective effect to the amendment is made, the offence then committed by the Petitioner continues to be offence till date and thus it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In reply to the said summons, on 16th June, 2006 the Petitioner sent the authorized representative on behalf of the company. In response to the summons, it was replied on behalf of the company that they were surprised and shocked to receive the summons as the company held one Star status and the summons were without any basis and non-speaking. It was further stated that the Director of the company was out of station and hence was unable to appear on the date and time fixed in the summons and the record was lying with the auditors for the purpose of audits, and thus the company M/s. Bronze Logistics Pvt. Ltd. is not able to produce it. Thereafter on 3rd July, 2006 a fresh summon was issued to M/s. Bronze Logistics Pvt. Ltd. through its Director for giving evidence and producing documents. The summons itself provided that all documents relating to the exports made through Shipping bill Nos. 5880793 and 5880795 both dated 14th November, 2005 be forwarded. Even this summon was replied to by the Petitioner on 18th July, 2006 in the same manner. Again on 3rd November, 2006 a summon was issued to the authorized signatory of M/s. Bronze Logistics Pvt. Ltd. asking him to submit the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot make them liable for the offence for the non-compliance thereof because when the non-compliance of the summons was done the same was not an offence. It is well settled that by a retrospective amendment no offence can be created as the same is contrary to Article 20 of the Constitution of India. 8. A plain reading of Section 108 of the Customs Act shows that the offence is attracted only if a summon being issued by the officer duly authorized in this behalf is intentionally disobeyed. Thus, violation or avoidance of summons issued by an officer who is not authorized or competent to issue the same cannot sustain a conviction under Section 174/175 IPC. Dealing with this issue in Shiam Lal Vs. Emperor. 15 (1914) Crl.L.J. 595 it was held that: Shiam Lal has been convicted under Section 174 of the Indian Penal Code and sentenced to a fine of ₹ 30. The case has been submitted to this Court by the Additional Sessions Judge with the recommendation that the conviction and sentence be set aside. It appears that a decree was transferred to the Collector by the Civil Court for execution inasmuch as the property to be sold was ancestral property. In the course of the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the convictions and sentences. The fines, if paid, will be refunded. 10. It is well settled that though by a retrospective legislation, the Legislature can confer a procedural competency on an officer, however an act or omission is not punishable as an offence unless it existed on the day when it was committed. In Rao Shiv Bahadur Singh and Anr. Vs. State of Vindhya Pradesh AIR 1953 SC 394, the Constitution Bench of the Hon‟ble Supreme Court held: 7. The next and the only serious question that arises in this case is with reference to the objections raised in reliance on Art. 20 of the Constitution. This question arises from the fact that the charges as against the two appellants, in terms, refer to the offences committed as having been under the various sections of the Indian Penal Code as adapted in the United States of Vindhya Pradesh by Ordinance No. 48 of 1949. This Ordinance was passed on 11-9-1949, while the offences themselves are said to have been committed in the months of February, March and April, 1949, i.e., months prior to the Ordinance. It is urged therefore that the convictions in this case which were after the Constitution came into force are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r can be made competent to issue summons however it cannot make the act an offence which was not an offence when it was allegedly committed in view of the want of competency of the officer issuing summons. No offence having been committed at the time when it is alleged, the Petitioner cannot be prosecuted for an offence by giving retrospective competence to the officer issuing summons. 12. The contention of the Learned Additional Solicitor General that this Court will not decide the issue regarding the competency of the officer to issue summons at the relevant time and thus the violation thereof being an offence as the same would be an issue to be decided during trial and in exercise of its power under 482 Cr.P.C. this Court by considering the same will not quash the criminal proceedings pending before the Learned Trial Court deserves to be rejected. In State of Haryana Ors. Vs. Bhajan Lal Ors. 1992 Supp (1) SCC 335 the Court considered in detail and summarized the legal position by laying down the following guidelines to be followed by the High Court in exercise of its inherent powers to quash criminal complaint. 102. In the backdrop of the interpretation of the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise its jurisdiction under Section 482 Cr.P.C. and not relegate the Petitioner to the trial. 14. Learned Additional Solicitor General has contended that since the offence committed by the Petitioner is a continuing offence as the Petitioner has not joined the enquiry till date and as on date the officer is competent to summon the Petitioner, the same is a continuing offence. The offence being a continuing one and the amendment in the Act having been introduced since the Petitioner has till date not complied with the summons he is liable to be prosecuted for offences under Sections 174/175 IPC. In this regard, it may be noted that the summons were sent to the Petitioner for joining enquiry on 2nd April, 2007, 21st May, 2007 and 10th July, 2007. No summons has been sent thereafter. A summon to appear is issued for a particular date and unlike a warrant, a summon is not a continuous mandate directing the Petitioner to appear on a particular date or thereafter at any time. Thus, I find no force in the contention of the learned Additional Solicitor General that the offence under Sections 174/175 IPC is a continuing offence. 15. Further the contention that non-conferring of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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