Air Customs vs State & Anr.
2011 Latest Caselaw 3731 Del

Citation : 2011 Latest Caselaw 3731 Del
Judgement Date : 4 August, 2011

Delhi High Court

Air Customs vs State & Anr. on 4 August, 2011

Author: Suresh Kait

$~21
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Delivered on : August 4th 2011

+                   CRL.REV. P.No.694/2010

      AIR CUSTOMS                                     ..... Petitioner
                            Through: Mr.Satish Aggarwala, Ms.Mala
                            Sharma & Mr.Sushil Kaushik , Advs.

                    Versus

      STATE & ANR.                                ..... Respondent
                            Through: Ms.Rajdipa Behura, APP for
                            State/R-1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?                               YES
    2. To be referred to the Reporter or not?          YES
    3. Whether the judgment should be reported in the YES
       Digest?

SURESH KAIT, J. (Oral)

Crl.MA. No.16799/2010 (delay)

For the reasons explained, delay of 20 days stands condoned.

Criminal M.A. stands disposed of.

CRL.REV. P.No.694/2010

1. By the present revision petition, petitioner has

assailed the order dated 28.06.2010 passed by ld. ACMM; New

Delhi whereby the case of the petitioner bearing CC

No.110/1/03 titled as 'Custom vs. Iqbal Ali' was dismissed for

non-prosecution.

2. Learned counsel for the petitioner submits that

department filed the complaint for the offence punishable

under Section 132/135(1) (a) of the Customs Act, 1962 against

the respondent No.2 way back in the year 2003. Thereafter,

cognizance of the offence was taken by the ld.Trial Court.

3. Learned counsel for the petitioner further submits

that after getting the bail, respondent No.2 avoided

appearance in the Court. On 12.02.2007, ld.ACMM;New Delhi

passed orders issuing NBWs against the respondent No.2 and

the notice to his surety returnable for 05.07.2007. Thereafter,

coercive processes were repeated and the vide order dated

24.11.2009, ld.ACMM; New Delhi directed for publication of

the process under Section 82 Criminal Procedure Code,

returnable for 23.04.2010. On the said date, ld.Presiding

Officer was on leave, however the report on the process under

Section 82 Cr.P.C. was filed and the matter was fixed for

28.06.2010 by the Link Magistrate for consideration of the

report.

4. He further submits that on 28.06.2010,

ld.ACMM;New Delhi considered the report and dismissed the

complaint for non-prosecution and same reads as under:-

"Despite repeated opportunities to the department the process under Section 82 Cr. P. C. is not being published. There is no justification why the process was not published in ordinary manner. Further from the letters bearing No.C No.VIII (Law) PLM/39/2000/SA/2372 dated 08.04.2010 and No.C No.VIII (Law) PLM/39/2000/ SA/3513 dated 17.05.2010 it appears that even in the process published in the newspapers the accused was not provided statutory period of 30 days for his appearance before the Court.

In the facts and circumstances when the complainant has failed to take steps for publication of process under Section 82 Cr. P.C. complaint is dismissed for non prosecution."

5. Ld. counsel for the petitioner submits that ld.ACMM;

New Delhi has totally gone wrong in dismissing the complaint

on the ground that complainant failed to take the steps for

publication of process under Section 82 Cr.P.C.

6. Further, ld.counsel has relied upon the judgment of

this Court dated 12.07.2010 passed in Criminal Petition

No.348/2010 in the case titled as 'UOI vs. State and Another'

wherein the facts were similar as in the present petition. Vide

the above judgment, this Court considered the matter and

passed the order as under:-

"I consider that the attitude of learned ACMM was quite strange and contrary to law. The Court cannot fall in a trap of inaction on the part of investigation agency of prosecution. If the accused and the prosecution or investigating agency come in league to help accused, the Court cannot close its eyes and take a view that since the investigating agency was not acting properly, it would not issue process against the accused. That gives a leverage opportunity to the accused to mix up with the investigating agency and go scot free. The Court has to bring every matter to its logical end. If the investigating agency is not acting properly, an action should be ordered by the

Court against the official of the investigating agency by superior officials but that would not give an excuse to the Court to let off the accused or let off any other person or refuse to issue process in accordance with law. The impugned order dated 23rd February 2010 is hereby set aside and learned ACMM is directed to proceed against accused and allow the application moved by the petitioner and see to it that proceedings under Section 82/83 and other provisions of Cr.P.C are complied with by the prosecution".

7. In the instant case, the respondent No.2/accused in

the complaint case the allegations against him is that of

evasion of custom duties and of smuggling of fire-arm.

8. I am of the view that ld.ACMM; New Delhi should

have not dismissed the complaint in haste and in arbitrary

manner. If, there was any lapse or misleading on the part of

the department/complainant, he should have given one more

opportunity, may be with imposing costs, instead of dismissing

the complaint in this fashion.

9. In the facts and circumstances of the case, I set

aside the order dated 28.06.2010 passed by ld. ACMM; New

Delhi and further direct that complaint case No.CC1101/03 is