Delhi High Court
Commissioner Of Customs vs State & Anr. on 7 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 7th January, 2011
Date of Order: 7th February, 2011
+W.P. (CRL.) 1146 OF 2010
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07.02.2011
COMMISSIONER OF CUSTOMS ... Petitioner
Through: Mr. Mukesh Anand, Advocate
Versus
STATE & ANR. ... Respondents
Through: Mr. Sanjeev Bhandari, ASC for the State
Mr. Santosh Kumar Suman, Advocate for R-2
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. The petitioner by this petition has assailed order dated 13th April, 2010
whereby the learned ACMM exercised power under Section 67 of IPC and
sentenced the Commissioner of Customs to imprisonment for a period of six
months for non-payment of cost of Rs. 23,307/-.
2. Section 67 of IPC reads as under:
"Section 67. Imprisonment for non-payment
of fine when offence punishable with fine only -If
the offence be punishable with fine only, [the
imprisonment which the Court imposes in default of
payment of the fine shall be simple, and] the term for
which the Court directs the offender to be imprisoned,
in default of payment of fine, shall not exceed the
following scale, that is to say, for any terms not
exceeding two months when the amount of the fine
shall not exceed fifty rupees, and for any terms not
exceeding four months when the amount shall not
exceed one hundred rupees, and for any term not
exceeding six months in any other case."
A bare perusal of this Section would show that the Section can be invoked
only where an offence committed by an accused is punishable only with fine.
In case of non-payment of fine on conviction the Court can give directions for
imprisonment of the accused/offender for an appropriate term, as provided in
the Section. The maximum sentence is six months.
3. In the present case, the learned ACMM was conducting trial. During
trial an adjournment was sought by the by the counsel/Special Public
Prosecutor for the State. The learned ACMM imposed costs on the State to
be reimbursed to the accused on the ground that accused had to come from
Mumbai to attend the proceedings and unnecessary adjournment was sought.
4. There is no power granted to a Metropolitan Magistrate under Cr. P.C.
for awarding costs to the accused for attending the court proceedings whether
an adjournment is sought or not and there is no inherent power available to
MM. The only power granted to Magistrate under Cr. P.C. is to grant cost to
the witnesses for attending the court for deposition.
5. I, therefore, consider that power exercised by the learned ACMM in this
case asking prosecution to reimburse the cost for attending proceedings to
the accused was unlawful. The learned ACMM thus exceeded his power in
directing the prosecution to reimburse the cost to the accused for attending
the court proceedings when the Public Prosecutor was on leave. The court of
ACMM had only to see whether the adjournment was being sought for
reasonable grounds or not. If the adjournment is sought on unreasonable
grounds, appropriate cost can be imposed to discourage seeking of
adjournments and cost has to be deposited with the State and it cannot be
given to the accused.
6. The learned ACMM could not have resorted to Section 67 of IPC for
recovery of cost. When procedure is prescribed under Cr. P.C. itself for
recovery of cost by attaching movable/immovable assets, the order passed by
learned ACMM seems to be actuated by extraneous reasons as a series of
orders of this ACMM in respect of customs cases have been found to be
suffering from similar malice.
7. The petition is allowed. The order of ACMM is set aside. A copy of
this order be sent to Chief Justice.
FEBRUARY 07, 2011 SHIV NARAYAN DHINGRA, J.
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