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Showing contexts for: customs act section 137 in Kishin S.Loungani vs Union Of India on 17 June, 2015Matching Fragments
10. Sri.Nataraj, the learned Additional Solicitor General submitted that the essential question to be considered is whether the Customs Officers are police officers and whether they are required to register FIR in respect of an offence under Section 135 of the :: 13 ::
Customs Act. He referred to the various provisions in the Customs Act and the Code of Criminal Procedure. He submitted that the Code of Criminal Procedure has very limited applicability in respect of matters covered by the Customs Act. The Code of Criminal Procedure applies only to the extent it is provided in the Customs Act. Registration of FIR is not a requirement under the Customs Act. Customs Officers are not police officers. The Customs Officers are at the stage of collecting materials to consider the question whether prosecution has to be launched and whether sanction is to be obtained under Section 137(1) of the Customs Act. Sri. Nataraj referred to the decisions in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi ((1987) supp. SCC 93); Sanjeev Coke Manufacturing Co. v. M/s.Bharat Coking Coal Ltd. and another ((1983) 1 SCC 147); Union of India and another v. G.M.Kokil and others (AIR 1984 SC 1022); Soni Vallabhdas Liladhar and another v. The Asst. Collector of Customs (AIR 1965 SC 481); Ramesh Chandra Mehta v. The State of W.B. (AIR 1970 SC 940); Illias v. The Collector of Customs, Madras (AIR 1970 SC 1065); Badaku Joti Savant v. State of Mysore (AIR 1966 SC 1746); Ayoob v. Superintendent, Customs Intelligence Unit (1984 KLT :: 14 ::
14. The provision in Section 104(2) of the Customs Act that :: 21 ::
every person arrested shall, without unnecessary delay, be taken to a Magistrate safeguards the guarantee under Article 22(2) of the Constitution of India. An arrest under Section 104 of the Customs Act need not be preceded by a First Information Report and it need not end in a final report as provided under Section 173 (2) of the Code of Criminal Procedure. Arrest under Section 104 is only for the purpose of ensuring a proper inquiry under the provisions of the Customs Act. Section 137(1) of the Customs Act states that no court shall take cognizance of any offence under Sections 132, 133, 134, 135 or Section 135A, except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs.
Sub-section (3) of Section 137 provides for compounding an offence, either before or after the institution of the prosecution, by the officers empowered thereunder. Compounding of an offence has been made with inbuilt safeguards under Section 137 of the Customs Act. Section 2(r) of the Code of Criminal Procedure defines "police report"
as a report forwarded by a police officer to a Magistrate under sub- section (2) of Section 173. Section 173(2) of the Code of Criminal Procedure provides that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate :: 22 ::
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31. Answering the above question, the Supreme Court in Deepak Mahajan's case held thus:
"116. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complaint whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1)(b) of the Code whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word 'investigation' cannot be limited only to police investigation but on the other hand, the said :: 45 ::