Bhabatosh Kumar Basak vs State of West Bengal

Kanchan Chakraborty, J.—The challenge in this revisional application is to the order dated 29th September, 2010 passed by the learned Metropolitan Magistrate, Calcutta in a proceeding being C-1918 of 1998 under Section 135(1)(b)(i) of the Customs Act, 1962, whereby the prayer of the petitioner for return of the seized gold biscuits was rejected. The petitioner has also prayed for quashing of the proceedings on the ground that in the Departmental Proceedings the Tribunal allowed the petitioner to redeem the gold biscuits in question on payment of fine of Rs. 25,000/- along with payment of appropriate duty thereon.

On 23rd June, 1998, a complaint petition was filed by the Superintendent of Customs (P), Calcutta against the petitioner, Bhabatosh Kumar Basak alias Manu, proprietor of M/s. Matadi Jewellers under Section 135(1)(b)(i) of the Customs Act alleging therein that pursuant to an information and on the strength of search authorization, a group of Customs Officers under the leadership of Mr. G. C. Murmu, searched the shop premises under the name of style M/s. Matadi Jewellers, a proprietary business of the petitioner, in presence of witnesses and recovered nine cut pieces of gold biscuits of foreign origin with hammer marking thereof. On demand, the petitioner, Bhabatosh Kumar Basak, failed to produce any legal and valid document in support of his possession of the said gold biscuits of foreign origin. Accordingly, those were seized by the Customs officials on the reasonable belief that those foreign gold biscuits have been imported illegally into India in contravention of the provisions of the Customs Act. The petitioner made voluntary statements on 29th April, 1997 and 30th April, 1997 before the Customs Authorities after receiving notice from their office that he was having a trade licence for running the business of jewellery and the seized gold biscuits were purchased from brokers unknown to him. He also admitted before the Customs Authorities that the gold biscuits were hammered by him in order to erase the foreign markings embossed thereon. He, however, tried to retract his statement by filing some documents subsequently.

The Customs Authorities adjudicated the matter in a departmental proceeding being Order-in-Appeal No. S-591/Kol/2004, dated 5th October, 2004. The Adjudicating Authority passed an order that nine cut pieces of gold biscuits under seizure are directed to be absolutely confiscated under Section 111(b) of the Customs Act and a personal penalty of Rs. 2 lakhs is imposed on Sri Bhabatosh Kumar Biswas, the petitioner herein, and the penalty amount should be deposited in the Customs House Treasury forthwith.

That order was challenged by the petitioner in the Customs, Excise and Service Tax Appellate Tribunal and the said Tribunal by the Order No. A-594/Kol/2005 allowed the appeal with the following observation :

"In present case the appellant purchased the goods from the broker and they are dealing the same from his shop premises. He deserves that a lenient view may be taken in this case and the gold may be released on payment of redemption fine, duty and penalty. I, therefore, upheld confiscation of gold. However, having regard to the fact that the gold though a restricted item is not prohibited and to the liberalization of import of gold, I permit the appellant to redeem the gold on payment of fine of Rs. 25,000.00 along with payment of appropriate duty thereon. I also reduce the penalty on the appellant from Rs. 1.00 lakhs to Rs. 25,000/-. The appeal is thus partly allowed."

Thereafter the petitioner takes out an application in the court of the learned Metropolitan Magistrate, 4th Court, Calcutta for return of the seized gold biscuits under Section 457 of the Code of Criminal Procedure. It is pertinent to mention here that a criminal proceeding was also lodged in the court of the learned Chief Metropolitan Magistrate, Calcutta against the petitioner under Section 135(1)(b)(i) of the Customs Act bedsides the Departmental Proceeding. The gold biscuits which were seized by the Customs Authorities were also the subject matter of the case pending in the Court of the learned Metropolitan Magistrate, Calcutta. The learned Metropolitan Magistrate, Calcutta upon consideration of the prayer of the petitioner and on the submissions of both sides came to the conclusion that the provisions of Section 457 of the Code of Criminal Procedure is not applicable in case of seizure by the Customs Authorities.

Hence this application.

Mr. Debnath, learned Counsel for the petitioner, submits that when the Appellate Authority (CEGAT) in an appeal preferred by the petitioner, rejected the order of confiscation and penalty imposed by the Customs Authorities and allowed the petitioner to redeem the seized gold biscuits by paying a fine of Rs. 25,000/- along with payment of appropriate duty thereon, the learned Magistrate ought to have allowed the prayer of the petitioner for returning the seized gold biscuits. He also submits that when the petitioner has been exonerated from the allegations and aspersions against him by the Customs Appellate Authority, simultaneous criminal proceeding should not be allowed to be continued. In support of his contention he refers to a decision of this court in the case of Jagmohan Jindal & Another v. State of West Bengal & Another reported in 2004 (2) CHN 106.

Mr. Bharadwaj, learned Counsel for the Customs Authorities, submits that the facts of the case in the case of Jagmohan Jindal & Another (supra), is altogether different than that of this case. In this case the petitioner was exonerated by the C.E.G.A.T. but in the present case he has not been exonerated but only allowed to redeem the seized gold biscuits on payment of fine and appropriate duty thereon. He submits further that in view of the fact that the seized gold biscuits have been marked as material exhibits in the Trial Court, it cannot be returned to the petitioner in view of the unreported decision of this court in C.R.R. No. 2287 of 2011, dated 16th April, 2012.

I have carefully gone through the entire record of the Departmental proceeding which is placed before me by the learned counsel for the Customs Authorities. Perused the order passed by the Customs, Excise and Service Tax Appellate Tribunal being No. A-594/Kol/05, dated 25th August, 2005 as well as the order under challenge passed by the learned Metropolitan Magistrate.

It appears from the order of the Appellate Tribunal that the Tribunal has not exonerated the petitioner from the allegations and aspersions put forth against him. There is no principle of law which says that Departmental Proceeding and criminal prosecution cannot run simultaneously. Rather it is trite law that both are completely separate and independent from each other. Therefore, there is no legal bar in proceeding with the criminal trial pending before the learned Magistrate. It is true that a considerable period of time has been consumed by the Trial Court to commence the criminal proceeding but, that cannot be the sole ground for quashing of the proceeding, especially, when the petitioner has not been exonerated by the Appellate Tribunal on the allegations and aspersions put forth against him by the Customs Authorities. It is the settled principle of law that a criminal proceeding can be quashed on rare cases and in exceptional circumstances the Court should exercise its power under Section 482 of the Code of Criminal Procedure very sparingly and cautiously in the matter of quashing a criminal proceeding. When the allegations and aspersions made in the petition of complaint, if accepted in their face value, make out a case, the Court shall not quash a criminal proceeding.

I reiterate that there is delay in commencing the trial but for that reason only the criminal prosecution cannot be quashed. Accordingly, I reject the prayer of the petitioner for quashing of the proceeding. However, when the Customs Authorities itself has taken a lenient view and allowed the petitioner to redeem the gold biscuits on payment of a fine of Rs. 25,000/- along with payment of appropriate duty thereon, the learned Magistrate could have returned the seized gold biscuits to the petitioner upon furnishing a bond on condition to produce the same as and when required in course of the trial. In the departmental record as well as in the petition of complaint it is found that the petitioner retracted from his earlier statement made by him to the Customs Authorities to the effect that he purchased the seized gold biscuits from an unknown broker and that he hammered those gold biscuits in order to erase the foreign origin embossed thereon. Such being the fact that it is really a question of fact to be decided by the Trial Court whether the gold biscuits seized by the Customs Authorities are actually smuggled in India or not. Because the petitioner made contradictory statements before the Customs Authorities, it is for the Court to decide the fact. For that reason the seized gold biscuits which had been directed to be redeemed by the Appellate Tribunal. There is no use for the Court or for the Customs Authorities to retain the same either in their possession or in the judicial custody. Whether Section 457 of the Code of Criminal Procedure is applicable or not is not the question in this matter. The Court is to see the articles, which have been seized by the Customs Authorities, require to be produced in course of trial or not. If the petitioner ensures that he will produce the seized articles in court in course of the trial, taking everything in consideration, the Court might have released the seized articles to the petitioner. It is also pertinent to take note of the fact that trial has not commenced as yet and the gold biscuits have not marked material exhibit.

This court thinks that the provisions of Section 110A of the Customs Act does not come in the way of the learned Magistrate to pass an order for returning of the seized gold biscuits to the petitioner when he has been permitted by the Customs Authorities itself to redeem on payment of fine and appropriate duty. The petitioner has already paid the fine and the duty as well. Therefore, I allow that prayer of the petitioner.

Let the gold biscuits be returned to the petitioner upon furnishing a bond of Rs. 5 lakhs on condition that he will produce all the seized gold biscuits without changing the nature and character of the same in the Trial Court as and when required.

It is to be mentioned herein that the trial is yet to be commenced and charge has not yet been framed. The learned Trial Court is directed to frame charge within a period of one month hence and complete the trial without any delay within a period of six months from date on top priority basis.

The revisional application is disposed of.

Urgent photostat certified copy of the order, if applied for, be supplied to the learned Advocates for both parties as early as possible.