Raj Kumar Patel vs State of U.P.

Sudhir Agarwal, J.—Heard Sri Ravindra Nath Rai, Advocate, for revisionists and learned A.G.A. for respondents.

This criminal revision under Section 401 read with Section 397 Cr.P.C. has arisen from order dated 13-10-2000 passed by Special Chief Judicial Magistrate, Varanasi (hereinafter referred to as "SCJM") in Case No. 207 of 2000 summoning Revisionists under Section 135 of Customs Act, 1962 (hereinafter referred to as "Act, 1962").

Brief facts are that a complaint case was filed by Sri B. Prasad, Assistant Commissioner (Customs), Varanasi in the Court of SCJM after obtaining necessary sanction vide order dated 12-9-2000 from Commissioner of Customs, Lucknow under Section 137(1) of Act, 1962, stating that on 16-2-2000 Customs Officers raided godown of M/s. Patel Roadways on the basis of a specific information. Vijay Kumar Yadav, an employee of aforesaid Transport Company, was present there, who produced the key of godown to Officers. Search of godown was conducted in his presence as well as two independent witnesses, which resulted in recovery of 12 bales Chinese silk yarn. On demand, Vijay Kumar could not produce any document evidencing legal import and valid possession of aforesaid silk yarn. The recovered material and Vijay Kumar were brought to Custom office to complete seizure formalities. Vijay Kumar was asked to contact owner of goods to produce relevant import documents, but he told that goods are smuggled and papers concerning legal import cannot be produced by anybody. Thereafter, recovered material was seized under Section 11 of Act, 1962 and a Panchnama was prepared. Statement of Vijay Kumar was recorded under Sections 107 and 108 of Act, 1962 wherein he stated that he is an employee of M/s. Patel Roadways, Padao, Varanasi, and owner of Company is Raj Kumar Patel. The recovered ''silk yarn'' belong to Iqbal Jakaria, Vinod Singh and Sona Sah who are partners of equal share in trade of smuggling. He also said that he had knowledge regarding arrival of smuggled goods in the company and used to co-operate in the work of Proprietor of Company, Raj Kumar Patel, who paid Rs. 5,000/- besides salary, to shut his mouth.

Thereafter, Vinod Singh, Sona Sah, Raj Kumar Patel and Iqbal Jakaria were summoned under Section 108 of Act, 1962 by Superintendent (Custom), Varanasi for recording their statement.

Vinod Singh appeared on 10-4-2000 and denied any link with smuggling activities and relation with Sona Sah, Iqbal Jakaria and Vijay Kumar. Iqbal Jakaria appeared on 27-3-2000 and denied his involvement in smuggling activities and stated that he was engaged in twisting of silk yarn on job work basis. He further denied any link with Vinod Singh and Sona Sah. Raj Kumar Patel appeared on 9-5-2000 and admitted to be ''Proprietor'' of ''Patel Roadways'' but stated that it appears that Vijay Kumar used to keep illegal goods in the godown of Company without his knowledge and he denied extra payment of Rs. 5,000/- per month to Vijay Kumar, apart from monthly salary. He denied his involvement in smuggling activities in any manner.

Summons dated 15-3-2000 issued to Sona Sah, returned back undelivered, where after he was again summoned on 4-4-2000 but this time also summons returned back undelivered. Thereafter, stating that records and circumstances reveal that all the above named persons are knowingly involved in the offence of acquiring, concealing, carrying and dealing in the said contraband goods and have contravened provision of Section 11 of Act, 1962 read with Notification No. 9 of 1996, dated 22-1-1996 which is punishable under Section 135 of Act, 1962, the aforesaid Complaint was lodged in the Court of SCJM.

The SCJM after perusal of permission obtained from Commissioner of Customs under Section 137, Panchnama and statements of accused persons under Sections 107 and 108 found that prima facie case is made out. He, accordingly, took cognizance and directed the case to be registered and summoned accused persons by means of order dated 13-10-2000, which is under challenge in this criminal revision.

Counsel for revisionists contended that no offence under Section 11 or 135 of Act, 1962 is made out, hence, order of SCJM summoning revisionists is without application of mind. It is contended that summoning order has been passed based on seizure memo as well as alleged confessional statement of Vijay Kumar though there is no material to co-relate accused-revisionists with Vijay Kumar, hence summoning of accused-revisionists is illegal and entire proceedings are vitiated in law.

It has to be kept in mind that here is not a stage where revisionists have been tried and in the light of evidence adduced before Court below, guilt in one or other way has been adjudicated. Here is a case at a nascent stage when on the basis of complaint made by a Public Servant, i.e., Assistant Commissioner (Customs), Varanasi alleging that accused-revisionists have committed an offence under Section 135 of Act, 1962, Magistrate has summoned revisionists against whom allegations have been made in the complaint that these are the persons who have committed offence under Section 135 of Act, 1962. In order to form opinion, prima facie, at this stage, Magistrate is supposed to look into the allegations contained in the complaint and the material placed along with it which in the present case include seizure memo, confessional statement of Vijay Kumar as well as statements of accused-revisionists which have been looked into by Magistrate and thereafter it has formed an opinion that a prima facie case has been made out, hence summons have been issued. Nothing has been placed before us to show that material available before Magistrate, even if believed to be true, no person of ordinary prudence can come to a conclusion that even prima facie no case of commission of offence by accused-revisionists under Section 135 of Act, 1962 is made out. The illicit goods have been found in godown of M/s. Patel Roadways, Padao, Varanasi, owner whereof is accused-revisionist 1. Vijay Kumar is an employee of the said firm. Revisionist 1 intends to wriggle out of liability by pleading lack of knowledge which he has to prove by adducing evidence and that stage has yet to come before Court concerned. Entire chain transaction as to how things take place has been given in detail by Vijay Kumar, employee of revisionist 1.

Vinod Singh, revisionist 2, in his statement said that he does not know Iqbal Jakaria and same thing has been said by Iqbal Jakaria in his statement also, but, interestingly, both these persons have joined in this criminal revision and have filed collectively along with Proprietor of Firm, i.e., Raj Kumar Patel.

Treating the allegations contained in the complaint to be correct, counsel for revisionists could not dispute that offence under Section 135 of Act, 1962 is made out. However, he relied on judgement in Radheshyam Kejriwal v. State of West Bengal and another - 2011 (4) SCR 889 = 2011 (266) E.L.T. 294 (S.C.) wherein on a complaint, process was issued by Magistrate and it was sought to be recalled by filing application before Magistrate contending that on the same allegations, adjudication proceedings were already dropped and Radheshyam Kejriwal was exonerated, hence his continued prosecution is an abuse of process of Court. This application was rejected by Magistrate and revision before High Court also failed, hence matter went to Supreme Court but the Court refused to interfere.

In the present case, that stage has not come inasmuch as accused-revisionists have yet to appear before Magistrate and to plead their defence in one or other manner.

Another judgment relied on is State v. Mushtaq Ahmad and others - 2016 (1) SCC 315, but that has arisen from a regular Trial. Trial Court convicted accused under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "Act, 1985") but on appeal High Court converted conviction under Section 20(b)(ii)(B) of Act, 1985 where after matter went to Supreme Court, who upheld the decision of Trial Court. In the present case, trial has yet to commence.

Sri Rai also referred to an Office Memorandum/Circular dated 23-10-2015 issued by Government of India to various authorities of Custom Department, but this revised guidelines are in the light of various amendments and changes made in Section 135 of Act, 1962 vide Finance Act, 2007 and Finance Act, 2013 while in the present case, incident is of 2000, hence the aforesaid Circular apparently has no application to the facts of present case.

Looking to the summoning order issued by SCJM this Court is clearly of the view that whatever material was available before Court below, it has considered the same, and, after applying its mind to the material available before it, has issued process to revisionists and it cannot be said that the same is illegal or contrary to law in any manner, hence, no interference is called for in this criminal revision.

Dismissed.

Interim order, if any, stands vacated.

Certify this judgment to the lower Court immediately.