Praveen Dumar Saraogi vs Union of India

Ashok Srivastava, J.—This petition u/s 482 of Cr.P.C. has been moved on behalf of the applicant with the prayer to quash the complaint in question and also to set aside the order of issuing non-bailable warrant against the applicant passed by the Special Chief Judicial Magistrate (Economic Offences), Varanasi in Case No. 25 of 1998 (Union of India v. Vikram Chaudhary and Others) u/s 135 of the Customs Act, 1962 (for short ''the Act''), Police Station D.R.I., Varanasi. This case was listed for hearing on 9-4-2013. On that date learned counsel for the applicant and learned A.G.A. were present but no one was present on behalf of Union of India. Arguments were heard in the case.

The brief facts of the case are that on 27-2-1998, the Assistant Commissioner of Customs (Preventive), Gorakhpur filed a complaint against one Vikram Chaudhary and Praveen Dumar Saraogi, the applicant, u/s 135 of the Act. The allegation as levelled in the complaint are that on 6-12-1995 the Directorate of Revenue Intelligence, Varanasi received a search information that various foreign origin goods concealed in various containers were kept under a cement bench on platform No. 6 at Mughalsarai Railway Station. It was also informed that silk yarn of foreign origin were to arrive at the same railway station concealed in three holdalls. A surveillance was initiated on the basis of such information and a raid was conducted. The officers of D.R.I., succeeded in nabbing one Vikram Chaudhary with huge amount of foreign goods having their value at Rs, 5,01,040/-. The seized goods and Vikram Chaudhary were brought to the office of D.R.I. The detained person Vikram Chaudhary was examined by the office under Sections 107 and 108 of the Act. In his voluntarily made statement Vikram Chaudhary clearly admitted the time, place and mode of recovery of the seized goods from his possession. He also admitted that silk yarn was delivered to him by one Rajendra Singh, a Constable of G.R.P. and it was to be delivered to the applicant. It was also disclosed that the goods were illegally brought from Nepal. Vikram Chaudhary also stated that he was knowingly operating and indulging in the smuggling activities and he had delivered foreign goods to the applicant four or five times in the past. The applicant was also examined by the officers of the D.R.I., but he denied his connection with the seized goods and also told the officers that he did not know Vikram Chaudhary.

After filing of the complaint the learned Magistrate took cognizance of the case on 27-2-1998 and on that very day he issued a non-bailable warrant against the applicant fixing 23-3-1998. Feeling aggrieved by such order the present petition has been filed.

It has been submitted from the side of the applicant mat there is no evidence against him except the statement of co-accused which cannot be relied upon against the applicant. It has further been submitted that the complaint was filed in the court of learned Magistrate on 27-2-1998. The learned Magistrate out-rightly issued non-bailable warrant against the applicant which is against the spirit and provisions of law. It has also been submitted that in the past the customs authorities have searched the house of the applicant but nothing incriminating was found from his residence. It has also been argued that learned Magistrate completely ignored the fact that no summons was ordered to be issued by him against the applicant and he issued illegally a non-bailable warrant against the applicant on the date of taking cognizance of the case.

The petition has been opposed by the learned A.G.A. He states that keeping in view the provisions of Section 107/108 of the Act and Section 204 of Cr.P.C, issuance of the non-bailable warrant was legal and since there is evidence against the applicant, the complaint cannot be quashed.

From perusal of the complaint it is evident that the co-accused of this case Vikram Chaudhary was examined by the offices of D.R.I., u/s 107/108 of the Act. In his statement the co-accused has stated that all the foreign origin goods recovered from his possession were to be delivered to the applicant. He has also said that in the past he had delivered such goods to the applicant four or five times.

In the instant case it has to be seen whether the evidence of co-accused can be read against an accused or not. In Naresh J. Sukhawani Vs. Union of India, the Apex Court has said that the statement of co-accused can be used against the accused of a case. Such opinion has been given in respect of Section 108 of the Act. From perusal of paras 1 and 4 of the said case law it is evident that if a Customs Officer examined any person u/s 107/108 of the Act and there is admission on the part of the co-accused, the same can be read against the co-accused.

In the above set of circumstances, I find that there is nothing on the record in favour of the applicant on the basis of which the complaint filed against him also u/s 135 of the Act may be quashed and set aside. Therefore, such prayer is rejected.

Further from perusal of the order sheet dated 27-2-1998 it is evident that the learned Magistrate issued warrant on the first date of the case. It is true that u/s 204 of Cr.P.C. a Magistrate can issue a non-bailable warrant on the very first date if he is of the opinion that a case before him is a warrant case but such power is not limitless keeping in view the provisions as contained u/s 87 of the Cr.P.C. Keeping in view the spirit of law it is desirable that there should be some genuine grounds to issue a non-bailable warrant against the accused on the very first instance where normally a summon should be issued. If the accused does not respond to the summon in that event a warrant may be issued which may be bailable or not. It was not appropriate in the facts and circumstances of the case to issue a non-bailable warrant outrightly on the first date.

In the above circumstances the petition is partly allowed. The following orders are passed:--

i. The part of the order dated 27-2-1998 through which a non-bailable warrant was issued against the applicant is set aside and quashed.

ii. The complaint cannot be quashed and set aside. It will be proceeded in accordance with law. The applicant is directed to appear before the learned Magistrate within 15 days from today and cooperate with the proceedings of the case. If the applicant does not appear before the learned Magistrate as directed by this Court within time allowed, it will be open for the learned Magistrate to issue a warrant against him and after securing attendance of the applicant it will dispose of the matter at the earliest possible because the case is very old.