V.K. Gujral vs Delhi Administration And Another
1986 Latest Caselaw 356 Del

JUDGMENT

1. The present petition of Shri V. K. Gujral is for quashing of the order of A. C. M. M., New Delhi, dated 30-5-1985, whereby on the complaint of Shri K. K. Sood, Air Customs Officer, Palam Airport, New Delhi, the petitioner was summoned for an offence publishable under Sections 135(1)(a) of the Customs Act and Section 5 of the Imports and Exports (Control) Act, 1947.

2. Before the factual and legal contentions raised by learned counsel for the department are taken into consideration, it will be relevant to keep in mind the salient features of the complaint. On 5-2-1985, the Customs Officer examined a consignment consisting of 5 packages covered against Airway Bill No. 057-74752462, dated 23-1-1985, which landed at Delhi Airport vide Flight No. AF-175, dated 24-1-1985. The importer of the said consignment was Mohd. Ali Abdi, Second Secretary, Somalia Embassy, New Delhi. The said consignment consisted of T.V./V.C.R./Music System and Washing Machine. Due to suspicion, the said consignment was inspected in the presence of S/Mohd. Ali Abdi and Rakesh Sood, Deputy Chief of Protocol, Ministry of External Affairs, in addition to independent witnesses. This resulted in the recovery of 200 gold biscuits of 10 tolas each bearing foreign markings. Shri Abdi, on enquiry, could not produce any permission from the Reserve Bank of India to cover the import of the said gold which was seized under Section 110 of the Customs Act. Subsequently, the statements of Shri Abdi as well as the authorised clearing agent M/s. Kaydee and Company, New Delhi, and other connected persons, including the present petitioner, were recorded. On the basis of the oral as well as the documentary evidence which came to the possession of the investigating agency, the department was of the opinion that the present petitioner was knowingly concerned in fraudulent evasion or attempt at evasion of prohibitions imposed on seized gold under Notification No. 12(II)/F/1/48, dated 25-8-1948 issued under Section 8(1) of Foreign Exchange Regulation Act, 1947 (corresponding to Section 13(1) of the Foreign Exchange Regulation Act, 1973), which prohibitions, by virtue of Section 67 read with Section 81 of the Act, are deemed to be restrictions imposed under Section 11 of the Customs Act, 1962 and as such the accused has committed an offence punishable under Section 135(1)(a) of the Customs Act, 1962. The complaint was filed in the Court of the A.C.M.M., New Delhi on 29-5-1985. As stated earlier, after going through the complaint, the statements of the witnesses and the documents, the learned Magistrate found sufficient ground for proceeding against the present petitioner and took cognizance of the same. It is against this very order the present revision petition has been preferred.

3. Show cause notice was issued to the respondent as to why the petition be not admitted by this Court on 22-1-1986. The petition has not yet been admitted. I have heard the arguments of the learned counsel for the parties and with their help gone through the record carefully.

4. The contention of the learned counsel for the petitioner in support of his plea for the quashing of the order of summoning, in brief, is that the facts stated in the complaint dated 29-5-1985 as well as the evidence cited in support thereof, even if taken on their face value, do not make out a case under Section 135(1)(a) of the Customs Act, nor a case under Section 5 of the Imports and Exports Act, 1947 against the petitioner. The statements of the witnesses recorded by the department are in a way the statements of the accomplices who are not being jointly tried with the petitioner. The alleged confession made by these persons cannot be said to be the statements of the approver and being inadmissible, cannot be relied upon. It is further alleged that neither in the complaint nor in the oral or documentary evidence so far placed before the learned A.C.M.M., the department has been able to establish that the petitioner was the indenting agent or that he had received a cheque on the local branch of the Bank of Tokyo, or was responsible for import of the items for and on behalf of Mr. Abdi. It is contended that the investigation of the prosecution has failed to examine the authorities of the Bank of Tokyo or rely upon any legal evidence implication the petitioner in the said offence. In support of these submissions, learned counsel also referred to numerous authorities laying down the law that the order of summoning on such like complaints can be quashed in the exercise of the revisional jurisdiction by this Court.

5. The contention of the learned counsel for the department, on the other hand, is that this is only a stage when the cognizance of the offence has been taken by the A.C.M.M., New Delhi, and no firm opinion can be expressed on the evidence which the department is going to produce in support of the averments made in the complaint. Even otherwise, according to the learned counsel, the bare perusal of the complaint as well as the documents filed along with it will go to show that the department has placed sufficient material before the Court to come to a definite conclusion that it is a case for proceeding against the accused. He particularly referred to the statements of Shri Abdi, the importer, [and] Shri K. D. Sethi, who was handed over the papers regarding the clearance of the goods at the earliest by the present petitioner with the further instructions to deliver these goods at his office at Khan Market after Customs clearance.

6. Learned counsel for the department has also pointed out that in the subsequent statement Mohd. Ali Abdi has stated that the present petitioner is their indenting agent and that he placed order for his household effects with the petitioner. It is also stated that Shri Abdi gave a cheque for the payment in the name of the company in Hongkong being represented by Mr. Gujral in India. These very goods from which the gold biscuits were recovered had been imported from Hongkong.

7. Without expressing any opinion on the merits of the complaint so that it may not have effect on the rights of the parties in future, prima facie it can safely be inferred that the averments made in the complaint and evidence so far collected by the department, by itself, are sufficient enough to order the summoning of the accused. The learned A.C.M.M. has formed the opinion that there are grounds to presume that the accused has committed the offence and since at this stage it cannot be said that the complaint is false, frivolous or vexatious or one which has been filed by way of abuse of process of the law, this Court would not like interfere in the impugned order of summoning.

8. Under similar circumstance, the Supreme Court has declined to interfere in the order of summoning by the lower Court in the case reported as Khecheru Singh v. State of U.P. and Another, AIR 1982 SC 784(2).

The judgment is very short and is reproduced as under :

"We do not see any justification though we are not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision No. 83 of 1979, which was affirmed by the High Court of Allahabad by its order dated 7-5-1980. All that the learned Magistrate had done was to issue a summons to Respondent No. 2 - Satyavir Singh. If eventually the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing 'summons' to the accused should be quashed. We, therefore, set aside the orders passed by the Sessions Court and the High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979, and remit the matter to trial Court for disposal in accordance with law."

The ratio decidendi of the aforesaid judgment fairly and squarely applies to the facts of the present case and I have no reason to differ with the same. In the latest judgment of the Supreme Court, the order of quashing the charge by the High Court in the revisional or reference powers was set aside where in a case, trial Court had formed an opinion that the accused had committed the offence. The judgment is reported as State of U.P. v. Manmohan and Others, . The relevant portion of the judgment is reproduced below.

"We have heard learned counsel for the appellant State as also the learned counsel for the respondents accused fully. Having given our most anxious consideration to the matter, we are of the firm opinion that the High Court should not have quashed the charge farmed by the learned Magistrate in exercise of its revisional and reference jurisdiction. Since the learned Magistrate had formed the opinion that there were grounds to presume that the accused had committed the offence and since it cannot be said that the prosecution was false, frivolous or vexations or one which was by way of abuse of the process of law, the High Court should not have quashed the charge in exercise of the revisional and reference powers."

9. There may be facts and circumstances of a particular case where such powers can be exercised but the same cannot be stretched to the present proceedings particularly when it is not a case of no evidence.

10. As a result of the above discussion, I see no force in the petition and the same is hereby dismissed. Any observations made herein will have no bearing on the merits of the case pending before the trial Court.