Bombay High Court
Union Of India. vs S.P. Goyal And State Of Maharashtra on 25 January, 2002
Equivalent citations: 2002BOMCR(CRI)~, 2002CRILJ4146
Author: D.G. Deshpande
Bench: D.G. Deshpande
JUDGMENT
1. Looking to the issue involved in this matter, it was decided, by consent of the parties, that at this stage itself the matter would be heard finally. Accordingly it was heard by me yesterday and today also.
2. This appeal against acquittal is filed by the Union of India through Commissioner of Customs, Mumbai against S.P.Goyal, Director, M/s.Cannon Steel (Pvt) Ltd. Accused No.1 was acquitted by Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai by his order dated 30.4.2001 and the acquittal was under
Section 174 of the Indian Penal Code. In addition, the Magistrate also directed that the seized property be returned back to the person from whom it has been taken charge of.
3. Both these aspects of the impugned order viz. the order of acquittal and the order of return of seized property are challenged by the applicant.
4. So far as second aspect is concerned, i.e. about return of seized property, the counsel for the applicant contended that this order is passed without jurisdiction because even if a complaint was filed against the accused under Section 174, the same complaint was not in respect of any property as such, but it was in respect of under Section 174 of the Indian Penal Code. The subject matters of the inquiry for which the summonses were issued to the respondent/accused were never brought before the Court, were never shown to the Court, were never in the custody of the Court, nor any orders of the Court were solicited at any time in past regarding custody and keeping up of the said property and, therefore, the Court had no jurisdiction whatsoever to pass such an order of return of the property to the respondent/accused.
5. Counsel for the applicant severely criticized the aforesaid part of the order not only because it was beyond the jurisdiction but it was uncalled for in the circumstances. There was no prayer on the part of the accused in writing or orally for return of the property and the Court was never given any jurisdiction or assumed or exercised any jurisdiction over the said property. He, therefore, contended that in any event that order has to be quashed and set aside with specific directions to the lower Court not to pass such orders in excess of their jurisdiction.
6. As against this, the counsel for the respondent/accused contended that the Court has jurisdiction to pass such order and there is no illegality in doing so.
7. At the out set it is necessary to uphold the contention of Mr.Mehta in this regard. The prosecution against the respondent/accused before the concerned Magistrate was under Section 174 of the Indian Penal code which was for "Non-attendance in obedience to an order from public servant". No where in the complaint filed by the applicant, the Court was asked to pass any order regarding the property in their custody and possessed under the Customs Act. Looking to the nature of the offence with which the accused was charged, the Court was not at all called by to pass any order in respect of the property and the impugned order no where states that the Court was at any time seized of the subject matters of the dispute viz. property about which the custom authority were making inquiry. Therefore, passing of such an order by the Court was totally uncalled for. It was in excess of the jurisdiction and, it is an example of misuse of the jurisdiction by the concerned Magistrate. The revision in that regard has got to be allowed and order has to be quashed and set aside.
8. So far as main controversy is concerned, the accused came to be prosecuted under Section 174 of the Indian Penal Code for not attending in person as required by Section 108 of the Customs Act. The appraiser of the Customs had issued summonses to the accused to appear in person. But according to the complainant, the accused never appeared in spite of specific directions and, therefore, he committed offence under Section 174 of the Indian Penal Code for which he was warned.
9. The trial Court acquitted the accused of the offence under Section 174 of the Indian Penal Code on two grounds viz. that P.W.3 Shom Bahadur Gurung admitted in his cross examination that the appraisers had no power to inquire into the matter of shopping bills etc. Another ground given by the Court for acquittal of the accused was that the clearing agent of the respondent had remained present before the authority issuing summonses and that was sufficient compliance. Third ground that is given was that when the summonses were issued, sufficient time was not given to the accused and it was humanly impossible for the accused to remain present. Fourth ground that was given was that issuing of six summonses within a span of ten days was nothing but a harassment to the accused, and no suitable time and opportunity was given to him. Lastly while interpreting Section 174, the Court held that Section itself gives powers to send one representative and when the representative of respondent No.1/accused was sent by him no offence stood committed.
10. Counsel for the respondent/accused supported the aforesaid findings or observations of the trial Court while opposing this appeal against acquittal. Counsel for the appellant relied upon two judgments viz. 1] 1995 (75) E.L.T. 501 (Ori) [Tata Iron & Steel Co. Ltd. v/s. Union of India]; 2] 1989 (42) E.L.T. 523 ( Mad.) [ Vittalinathan v/s. Collector of Customs]
11. I have given my anxious consideration to the submissions made by both the advocates.
Section 108 of the Customs Act 1962 provides that :-
"any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary----------"
Subsection 3 provides that :-
"All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct---------"
In the instant case, there is no dispute that summonses to the accused were issued by appraiser Shom Bahadur Gurung. In his evidence he has categorically stated in para 1 that in 1998 he was working as a Appraiser in C.I.U., Mumbai. As an Appraiser, he was authorized to issue summons u/s.108 of Customs Act and so also he was a gazetted officer. Therefore, in view of this position, there cannot be any dispute that Gurung was a gazetted officer as required by Section 108 and had powers or authority to issue summonses under the said section.
12. The admission given by Gurung (PW 3) which was used by the trial Court in favour of the accused is totally taken out of the context and misinterpreted. P.W.3 Gurung has no where stated that he had no authority to issue summonses or he was not a gazetted officer. The accused did not, in their cross examination, challenge this position and position of Mr.Gurung as appraiser or gazetted officer. What has been admitted by Mr.Gurung in the cross examination to the effect that;
"It is correct to say that all the Appraisors do not have powers to investigate. In the instant case orders were given to me by the then Chief Commissioner of Customs Shri.B.K.Baxi and thereby directed me to investigate the matter. Order was given to me in writing."
When further questioned as to whether Gurung was in position to produce said order ?, he replied that the order is in the file of investigation and accused has nothing to do with the said order.
13. It is this admission or reply in cross examination which, according to the trial Court, shatters the case of the prosecution. However, this approach and the interpretation of the aforesaid admission is totally wrong as witness Gurung no where stated or admitted that he had no powers to issue summonses. Powers to issue summonses have been conferred upon a gazetted officer under the statute and any gazetted officer can issue summonses. Section does not say that the gazetted officer should be empowered to investigate of which limitation is to be found in Section 107 which says that any officer of customs empowered in this behalf by general or special order of the commissioner of customs may exercise certain powers given under Section 107. However, Section 107 and Section 108 are separate sections and Section 108 is specifically to empower all the gazetted officers or any gazetted officer to issue summon.
14. Therefore whether Mr.Gurung had powers to investigate or not was totally irrelevant and, even if it is accepted that he had no powers to investigate, there was no legal impediment in his way in issuing summon because he was gazetted officer empowered under Section
108. Therefore, interpreting the aforesaid admission as a destruction of the prosecution case was totally wrong on the part of the trial Court. The finding is, therefore, liable to be quashed.
15. Second ground on which the accused was acquitted was that the accused had sent his representative which was permissible under subsection 3 of Section 108 of the Customs Act and, also permissible under Section 174 of the Indian Penal Code itself. These two provisions have been relied upon by the counsel for the accused. Section 174 of the Indian Penal Code provides that :-
"Whoever, being legally bound to attend in person or by an agent ".
And subsection 3 of Section 108 provides that :-
"All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct".
Both the trial Court and the counsel for the accused are trying to interpret Sections 108 and 174 to mean only that when a person is summoned he can send his authorized agent and the interpretation is partially correct. What is lost sight of by the trial Court as well as by the Counsel for the respondent is that important wording in subsection 3 Section 108 "as such officer may direct"
[stress added]. Therefore, even after ordinarily a man can send his representative, he cannot always do so if there is specific direction by the officer issuing summonses in that regard.
16. In the instant case, six summonses were sent and in five summonses, out of six, there is specific direction to respondent No.2 to remain present and, the words in the summonses "or through your authorised agent"
are erased or scored out. This clearly shows that there was specific direction to the accused/respondent No.2 to remain present as the officer wanted pursuant to the powers given to him under Section 108 subsection 3 of the Customs Act. And therefore, there was no option for the accused/respondent but to remain present. He cannot therefore escape from his liabilities by contending that he had sent his representative or he had power to send his representative. The observations and findings of the trial Court in this regard also cannot be sustained as they are totally in disregard of the aforesaid important provisions of Section 108 subsection 3 of the Customs Act.
17. A bunch of six summonses was made available to me by the counsel for the petitioner. The said bunch was seen by the counsel for the accused and he pointed out that in the last summons dated 14.7.1998 the words "or through your authorised agent" are not scored out, but they are underlined meaning thereby that accused was permitted to send his representative. Objection of the counsel for the respondent appears to be genuine because copy of the summons dated 24.7.1998 does make or create such an impression. In fact, copies of summons of the same date 24.7.1998, as provided by Mr.Mehta and one produced by the counsel of the accused, are different in this regard, whereas in the copy produced by Mr.Mehta, the aforesaid words are scored out and, in the copy produced by the accused, the aforesaid words are underlined. It appears that the intention was to score out those words, but the intention is not properly carried out in practice and, therefore, the benefit of doubt has to be given to the accused. Therefore, so far as this summons dated 24.7.1998 is concerned, it cannot be said that the accused/respondent was personally directed to remain present. However, so far as other summonses are concerned, it was specifically directed to the accused to remain present and he had no authority to send his representative.
18. Admittedly, therefore, the accused is guilty of offence under Section 108 of the Customs Act and under Section 174 of the Indian Penal Code.
19. It was further strenuously urged by the counsel for the accused that even though the aforesaid five summonses were served, the representative of the accused was sent. This argument cannot be accepted because direction was specifically to the accused to remain present and, admittedly, there is no compliance to the said direction.
20. The other aspect that was urged by the counsel for the accused was that summons dated 16.6.1998 was served upon the accused calling him to remain present at 2.00 pm. He received the summons at 1.40 pm and, he had no sufficient time to attend. Secondly, the another summons dated 16.6.1998 was served upon him to remain present on 17.6.1998 at 11.00 pm. Therefore, he could not remain present. Third summons of 18.6.1998 was served upon him at 4.00 pm and called upon him to remain present at 5.00 pm. He, therefore, contended that even though the officer had authority to issue summons and the respondent was legally bound to attend, it was expected that reasonable time or sufficient time should have been granted and if sufficient and reasonable time was not granted, nonattendance of the accused could not be converted into an act of criminal offence.
21. As against this, Mr.Mehta for the petitioner pointed out that the attendance of the accused was repeatedly sought but he was avoiding and even though short notice was given, the accused had sent his representative. He also contended that the office of the petitioner was situated at Ballard Pier and the office of the accused was situated in New Marine Lines. Therefore, there was sufficient time for the accused to attend, if he really wanted to. So far as summons dated 18.7.1998 is concerned, the summons was served upon him at 4.00 pm outside the office of the Commissioner Adjudication Shri K.D.Mankar where the accused had just finished the hearing of a case and he was there in the premises of the customs and, one hour was sufficient for the accused to attend the office as required at 5.00 pm. But the accused had not appeared and avoided to appear.
22. So far as other summonses are concerned, I do not find that the customs authority had given reasonable time and sufficient opportunity to the accused to remain present. Further in the summons dated 16.6.1998 calling upon the accused to remain present at 17.6.1998 though time is 11.00 p.m. It is admittedly a writing mistake which even a businessman like accused should have understood because no government office would remain open at 11.00 p.m. In any case it was obligatory upon the accused to attend the office at 11.00 am. and to make inquiry whether he has been asked to remain present at 11.00 pm. Therefore, on both these occasions i.e. on 18.6.1998 at 5.00 pm and on 17.6.1998 at 11.00 a.m. the accused deliberately remain absent in spite of sufficient notice. Therefore out of six notices quoted and relied upon by the customs, at least in case of two, the accused has disobeyed the direction under section 108 of the Customs Act given to him. The charge that was framed against accused was, whether in spite of the summonses issued on 11th June, 1998, 16th June, 1998, 18th June, 1998, 19th June, 1998, 23rd June 1998 and 24th July 1998, the accused willfully avoided to attend. Out of these, it is found that on two occasions, as stated above, he willfully avoided to attend. For all these reasons, the appeal is required to be allowed. Hence I pass the following order :-
ORDER
23. The appeal is allowed.
24. The acquittal of the accused under Section 174 of the Indian Penal Code is set aside. He is convicted under Section 174 of the Indian Penal Code and sentenced to pay fine of Rs.101/- only. Fine to be paid within eight days. The order of return of property is also quashed.