Remo Morgani vs State of West Bengal

N.C. Mukherji, J.—This application under sections 435, 439, 561A/or section 526 of the Code of Criminal Procedure read with Article 227 of the Constitution of India is directed against an order dated the 2nd November 1972 passed by Sri R. Samajder, Presidency Magistrate, 3rd Court, Calcutta in case No. C|907 of 1968 and/or for transfer of the said case No. C/907 of 1968 pending in the said court. The Rule was issued only to show cause why the order dated the 2nd November, 1972, as referred to in the petition should not be set aside but the prayer with regard to transfer was not pressed at the time of obtaining the Rule.

The facts of the case briefly stated are that the petitioner who is an Italian national has been staying in India for a long time and that he came to India through the Palam Airport and obtained clearance of his baggages from the Custom Officials. But on the 26th February, 1968, on the allegation that 83 strings of coral beads, 6 gold rings set with coral, one pair of gold ear tops with coral and one pair of gold cufflinks were found in his possession in room No. 15 in Carlton Hotel, Calcutta, he was arrested by the Assistant Collector of Customs and produced before the Chief Presidency Magistrate, Calcutta who took cognizance of the offence u/s 135 of the Indian Customs Act, 1962, and an amalgamated charge u/s 135 of the Act was framed against him. Against that order framing the amalgamated charge, the petitioner moved this Court in its criminal revisional jurisdiction and obtained a Rule. In that revision matter (Crl. Revision No. 842/68) the amalgamated charge as framed by the learned Magistrate was set aside and the case was sent back for framing a fresh charge according to law. The learned Magistrate thereafter framed charges both under clauses (a) & (b) of the Act. Thereafter the petitioner again moved this Court on the ground that it was not proper for the Magistrate to frame charges under both the clauses (a) & (b) of the Act and in the Crl. Revision No. 441/69 this Court set aside the charge that was framed under clause 155 (a) of the Act and sent the case back to the learned Magistrate and directed that the Magistrate should proceed only on the charge made u/s 135 (b) of the Act. Then again when the case was sent back to the learned Magistrate the petitioner raised an objection to the court''s jurisdiction to try the case. The learned Magistrate held that the charge as framed was proper, but he did not entertain the contention of the defence with regard to the point that he had no jurisdiction to try the case. Then the petitioner again moved this Court in criminal revision 177/72 and in this revision case this Court held that the charge framed u/s 135(b) was proper and it was further held by this Court that the objection as to question of jurisdiction was not properly considered by the learned Magistrate. The case was sent back by this Court and the learned Magistrate this time considered the question of jurisdiction and the objection raised by the defence. With regard to the jurisdiction the learned Magistrate held that he had jurisdiction to try the case u/s 135(b) of the Act. Being aggrieved by the order as above the present application for revision has been made in which Rule as aforesaid has been issued for setting aside the impugned order. That Rule has come up for hearing before us and has been heard at length on the submissions made on behalf of the respective parties.

It is contended by Mr. Ajit Kumar Dutt appearing on behalf of the petitioner that when the admitted position is that the petitioner imported the articles in question at Delhi, the offence as envisaged under the provision of clause (a) of Section 135(a) of the Act was complete, and that being so, the same person cannot be charged u/s 135 clause (b) on the allegation that he was in possession of those articles at Calcutta. The prosecution therefore ought to have proceeded against the petitioner under clause (a) of section 135 of the Customs Act at Delhi, that not having been done the prosecution cannot now proceed against the said petitioner under clause (b) of section 135 at Calcutta. According to Mr. Dutt section 135(b) contemplates taking cognizance of and/or charging only those persons who have the goods in their possession or "in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111", and that being so, a person who actually imports the article cannot be proceeded under clause (b) of section 135 of the Customs Act. It is submitted again by him in this connection that there was no subsequent acquisition as provided in section 135 clause (b) in this case. The acquisition, if any, in this case was when the accused imported the goods at Delhi and not when the goods were so recovered in the hotel at Calcutta.

Mr. D. N. Das appearing for the Customs Department submits that the words, "in any way concerned" and/or in any other manner dealing with any goods are wide enough to include the words "Evasion of duty or prohibitions" in section 135 of the Act, in case evasion of duty or prohibitions come into play in relation to goods found in any person''s possession or he is found "in any way concerned in carrying removing......" etc. That being so, even if the person who actually imported the goods at one place is again found to be in possession of those goods or the articles at a different place, that person can very well be proceeded against under clause (b) of the Customs Act even though the prosecution chose not to proceed against him under clause (a) of section 135 of the Act. On this point Mr. Das has cited the case of Sachindananda Banerjee Assistant Collector of Customs, Calcutta V. Sitaram Agarwala and another reported in Sachidananda Benerji, Assistant Collector of Customs Vs. Sitaram Agarwala and Another, in which the decision reported in Sitaram Agarwala and Another Vs. State, was set aside. This decision was of course u/s 167 (81) of the Sea Customs Act (1878) but the provision of section 167(81) is almost similar to section 135 of the Customs Act 1962. In this case it was laid down as follows :�

The question whether it can be said that any person was concerned in dealing with prohibited goods will depend on the facts found in each case. The words, "in any way concerned in any manner dealing with prohibited goods" in the clause are of very wide import and it is not desirable or necessary to define all manner of connection with prohibited goods which might within the meaning of those words.

It has also been held that

it is well settled by the decisions of this Court that goods which have been imported against the prohibition or restriction imposed under Chapter IV of the Act are liable to confiscation at any time after import and this liability extends even in the hands of third persons who may not have had anything to do with the actual import.

But the fact of the present case we are dealing with appear to us to be on a stronger footing than those of the case mentioned above.

In the reported case it was laid down that the provision would equally apply to goods in the hands of a third person who may not have had anything to do with the actual import of the goods in question but the goods were said to have been found in his possession and the person concerned was still in possession of the said goods and in that case he must be held to be liable. In another place of the decision their Lordships observed, as follows:�

Both the words "concerned" and "deal" have a wide connection. The words "concerned in" mean "interested in, involved in, mixed up with" while the words "deal with" mean "to have something to do with, to concern one-self to treat, to make arrangement, to negotiate with respect to something".

Their Lordships further held,

it seems to us (taking a case of prohibition) that if the prohibition is still in force, the person who acquires possession of prohibited goods knowing them to be prohibited intends to evade the prohibition be the action even though he may not have been concerned in the actual smuggling of the goods.

Relying on the provision in section 135 of the Act with regard to evasion of duty or prohibitions and also relying on the principles of law enunciated by their Lordships in the reported case referred to above we have no hesitation to hold that the petitioner was rightly proceeded against under clause (b) of section 135 of the Customs Act 1962 when in the facts of the case admittedly the seized goods were found in the petitioner''s possession at Calcutta in Carlton Hotel where the petitioner was at that time staying. That being so, we must hold that the Chief Presidency Magistrate''s court, Calcutta has jurisdiction to try the case.

In the result, the Rule obtained by the petitioner is discharged. The case is sent back to the court of the learned Magistrate concerned who will try the case before him according to law. The learned Magistrate is also directed to dispose of the case as quickly as possible as the case is pending for a long time and requires quick disposal.

Ajay K. Basu, J.

I agree.