Vijay R. Shinde vs Assistant Commissioner of Customs (Preventive)

V.K. Mohanan, J.—As the challenge in both the Criminal Revision Petitions is against an order dated 24-11-2010 in CMP No. 4075 of 2010, though by different accused in C.C. No. 592 of 2007 and the question of law and facts involved are identical, the above two revision petitions are heard together and being disposed of by this common order.

Crl. R.P. No. 3803 of 2010 is preferred by the eighth accused in C.C. No. 592 of 2007 whereas Crl. R.P. No. 3848 of 2010 is preferred by accused Nos. 5, 6 and 7 in the very same Calendar Case pending before the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.

The grievance of the petitioners is that though they have approached the trial court for seeking a discharge u/s 245 of the Cr. P.C., the trial Magistrate declined the request. In fact, two separate petitions were filed before the trial court by the accused, i.e., CMP No. 4074 of 2010 by accused Nos. 1, 2 and 3 and CMP No. 4075 of 2010 by accused Nos. 5 to 8. C.C. No. 592 of 2007 is instituted on the basis of the complaint preferred by the Assistant Commissioner, Customs Preventive Division, Kochi for the offences punishable under Sections 132 and 135 of the Customs Act, 1962. The allegation which led to the filing of the above complaint is that while accused Nos. 3 and 4 were travelling in a car on 8-5-2003, the same met with an accident near Chavakkad and that on examination of :he above vehicle, it was found that Indian Currency valued about Rs. 48 lakhs were concealed in a specially made cavity inside the above car. Subsequently, the officers of the DRI, Cochin, who conducted investigation into the above matter, found that the said currencies were the sale proceeds of smuggled gold of foreign origin. On questioning, accused Nos. 3 and 4 have stated before the D.R.I, that the said currencies were being brought from a gold refinery with the name and style M/s. Balaji Jewellery, Trichur and the same was done under the instruction of accused Nos. 1 and 2, who are also conducting a shop under the name and style ''Royal Old Gold'' at Perinthalmanna. According to the complainant, accused Nos. 3 and 4 have admitted that the seized Indian Currencies were the sale proceeds of the smuggled gold. It is the further case of the complainant that on the basis of the disclosure statement of accused Nos. 3 and 4, the D.R.I, conducted search in the shop by name M/s. Balaji Jewellery on 9-5-2003 and according to the complainant, consequently they recovered two smuggled gold bars weighing 1000 grams from accused No. 6 who came there at the time of search. It is also alleged that the D.R.I, recovered one smuggled gold bar weighing 1000 grams which was brought to the above shop by accused No. 7 at the time of search. According to the complainant, accused Nos. 6 and 7 also disclosed before the D.R.I, that the above smuggled gold bars were taken by them to the above shop under the instruction of accused No. 5. According to the complainant, during the course of investigation, the D.R.I, has recorded the statements of all the accused u/s 108 of the Customs Act, 1962. Thus, according to the D.R.I., the investigation discloses that accused Nos. 1 and 2 used to procure smuggled gold bars from M/s. Shiv Sahai and Sons, Chennai managed by accused No. 9 and sold the same to accused No. 8, who was an employee of M/s. Balaji Jewellery. Tenth accused is the broker in the said smuggled gold transaction who used to act as an intermediary between M/s. Shiv Sahai and Sons and those involved in the transactions in smuggled gold in obtaining predated and fabricated documents. It is the further allegation of the complainant that accused Nos. 1 and 2 and 5 managed to get fabricated invoice and bills for the smuggled gold bars with the help of accused Nos. 8, 9 and 10 and according to the prosecution, the above fabrication of documents clearly prove that the gold which were sold to obtain the currency, were clearly of contraband origin. The accused No. 10 is no more and accused No. 4 is absconding. On the basis of the above allegation and the complaint, three prosecution witnesses were examined as Pws. 1 to 3 and Exts. P1 to P23 documents were marked at the time of recording the evidence u/s 244 of the Cr. P.C. Thus, when the case thereafter was posted for hearing and framing of charge, the accused preferred the above mentioned two petitions for discharge. After hearing the prosecution as well as the defense, the learned Magistrate came to the conclusion that the preliminary evidence would show that the goods involved in these cases are smuggled gold bars, the sale proceeds of which are said to have been carried by accused Nos. 3 and 4. It is the further finding of the learned Magistrate that the evidence brought out u/s 244 of Cr. P.C. with regard to fabrication of invoice and bills for the smuggled gold bars transacted by the accused would clearly make out the offence u/s 132 of the Customs Act, 1962. It is the above finding and observations and order as such challenged in these two separate revision petitions.

I have heard Sri. D. Peethambaran, learned counsel appearing for accused Nos. 5, 6 and 7, who preferred Crl. R.P. No. 3848 of 2010 and Sri. M. Ramesh Chander, learned counsel appearing for accused No. 8, who preferred Crl. R.P. No. 3803 of 2010 and Sri. P.C. Iype, Special Public Prosecutor for Customs. 1 have also perused the orders impugned and the materials produced along with this Crl. R.Ps.

Sri. D. Peethambaran, learned counsel appearing for the revision petitioners submitted that since the confiscation of currency is u/s 121 of the Customs Act, no charge u/s 135(1)(a) and (b)(i) would lie against accused Nos. 5, 6 and 7. It is also the submission of the learned counsel that as evident by Annexure-I, the Commissioner of Customs (Preventive), Cochin accorded sanction against the above accused only for lodging a prosecution for the offence u/s 135 of the Customs Act and no sanction is accorded for proceeding against them u/s 132 of the Customs Act and therefore the trial court has no jurisdiction to take cognizance against accused Nos. 5, 6 and 7 for the offence u/s 132 of the Customs Act. In support of the above contention, learned counsel invited my attention to Sections 135(1)(a) and (b)(i) and also Sections 111, 113, 121 and 123 of the Customs Act. According to the learned counsel, the mere seizure of currency notes would not attract Section 135 of the Customs Act. According to him, it is very clear from Section 123 of the Customs Act, the burden of proof on the accused u/s 123 will come only after the confiscation u/s 111 or 113 of the Customs Act.

Sri. M. Ramesh Chander, learned counsel appearing for the eighth accused in Crl. R.P. No. 3803 of 2010 submitted that even according to the prosecution, the eighth accused is implicated in the case only because he being the employee of the jewellery and because of his statement u/s 108 of the Customs Act. Otherwise, there is no material to connect him with the alleged offence. In support of the above submission, the learned counsel placed reliance upon the decision of the Apex Court reported in Noor Aga v. State of Punjab & Another 2008 (9) SCALE 681.

On the other hand, the learned Special Public Prosecutor submitted that in view of Section 2(22)(d) of the Customs Act, goods include the currencies and negotiable instruments and therefore, Section 135(1)(a) of the Customs Act is attracted and consequently, the accused are liable to be punished u/s 135(1)(a)(i) of the Act. Learned Public Prosecutor also pointed out that accused No. 5 has filed an affidavit showing that the gold bars were purchased from Chennai. It is also the submission of the learned counsel that in view of Section 123, the burden is on the accused to give an account regarding the possession etc. It is also the submission of the learned Public Prosecutor that Section 132 of the Customs Act is also attracted since the allegations and materials disclose that invoice was forged for the purpose of commission of offence. Therefore, according to the learned Public Prosecutor, the trial court has correctly rejected the request of the accused for discharge and no interference is warranted.

I have carefully considered the arguments advanced by the counsel for the revision petitioners as well as the learned Special Public Prosecutor. I have also perused the order of the learned Magistrate and also perused the materials produced along with this Crl. R.P.

On a reading of Section 135, it is crystal clear that the penal provision u/s 135(1)(a)(i) of the Customs Act would attract if the prosecution succeeds in establishing that if any person is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods. In the present case, the allegation of the prosecution is that the currencies which were seized from the possession of A3 and A4 are the sale proceeds of smuggled gold bars which were brought through fraudulent evasion and mis-declaration of value and also by evasion of duty chargeable thereon. So, according to me, the contention of the learned counsel for the petitioners in Crl. R.P. No. 3848 of 2010 is liable to be rejected. The learned Magistrate has already come to the conclusion that the perusal of evidence adduced by the prosecution would show that the prosecution has succeeded in establishing a prima facie case as alleged by the prosecution in the complaint and by adopting the very correct and legal tests, the learned Magistrate has concluded that there is no doubt, that if the accused are not able to rebut the above case made out from the preliminary evidence, it would warrant their conviction for the offences under Sections 132 and 135 of the Customs Act. Of course, the contention raised by the counsel for accused Nos. 5 to 7 that no offence u/s 135 of the Customs Act is attracted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence.

Regarding the submission of the learned counsel that no proper sanction u/s 137 of the Customs Act for taking cognizance of the offence u/s 132 appears to me as not out of place and context. Along with these Crl. R.Ps., the petitioners have produced Annexure I sanctioning order issued by the Commissioner of Customs (Preventive), Kochi whereby it can be seen that sanction was issued for prosecuting the accused for the offence u/s 135 of the Customs Act and in the order, there is no reference to Section 132 of the same Act. But, in the impugned order, the learned magistrate has observed that the facts and evidence involved in the case would clearly make out the offence u/s 132 of the Customs Act. Certainly, in view Section 137 of the Customs Act, no court can take cognizance of any of the offence mentioned in that section, unless the previous sanction is accorded by the concerned authority. As evident by Annexure I, there is no sanction for the offence u/s 132. Therefore, the question whether the court can take cognizance for the offence u/s 132 of the Customs Act is a matter to be considered by the trial court at the time of framing of charge, on the basis of the materials and evidence on record. The learned Magistrate is free to consider whether, in the given facts and circumstances of the case, especially in the light of Annexure-I sanctioning order issued by the Commissioner for the offence u/s 135 of the Customs Act, a separate order is necessary for the offence u/s 132 of the Customs Act.

Regarding the contention raised by Sri. Ramesh Chander, counsel appearing for the eighth accused, it is to be noted that in the sanctioning order itself, it is stated that it is the eighth accused who handed over the currency notes of Rs. 47,00,500/- to Sri. Abdul Kareem and Sharafuddin, who are accused Nos. 3 and 4. It is also relevant to note that as per the prosecution allegation, the seized gold bars were sent to him as per order placed by him with Hamza. The eighth accused, who belongs to Maharashtra State, is the employee of M/s. Balaji jewellery and as per the allegation, it is the eighth accused who handed over the currencies to accused Nos. 3 and 4. From the above facts, it appears to me that the learned Magistrate is correct in holding that he can be proceeded against. The questions whether he was implicated as an accused only because of his employment in the Balaji Jewellery or whether he had any active involvement in the commission of offence are matters to be considered on the basis of evidence that is yet to be adduced.

With respect to the second contention of the learned counsel, that the eighth accused is implicated in the crime because of his statement u/s 108 of the Customs Act, is not acceptable because the totality of the evidence has to be considered while considering the request of the eighth accused for discharge and his denial of involvement in the commission of offence. In this case, it is relevant to note that the two gold bars weighing 1000 grams each were recovered by the D.R.I, from accused Nos. 6 and 7 from the Balaji Jewellery shop where accused No. 8 is working, on 9-5-2003, when the DRI conducted a search on the basis of the disclosure statement made by accused Nos. 3 and 4 when they were taken into custody along with the currency notes seized on 8-5-2003, the just previous date to the seizure on 9-5-2003. Therefore, according to me, it is for the trial court at the time of appreciation of evidence to consider whether there is ample evidence to connect the eighth accused with the alleged offence and the petitioner/eighth accused is not entitled to get a discharge at this stage.

In the light of the above discussion and the materials referred to above, I am of the view that the learned Magistrate is perfectly legal, correct and proper in rejecting the prayer of the revision petitioners for a discharge u/s 245 of Cr. P.C. and as such, I find no merit in the Crl. R.Ps. and accordingly, the same are dismissed, but subject to the above observation made in this order.