Shree Krishan Goswami vs State Of Gujarat
2021 Latest Caselaw 16120 Guj

     R/SCR.A/2554/2013                             JUDGMENT DATED: 13/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 2554 of 2013
                                  With
              R/SPECIAL CRIMINAL APPLICATION NO. 88 of 2013

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                           SHREE KRISHNA GOSWAMI
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR PARITOSH GUPTA FOR M/S TRIVEDI AND GUPTA(949) for the
Applicant(s) No. 1
ADVOCATE NOTICE UNSERVED(82) for the Respondent(s) No. 2
MR DHAVAL D VYAS(3225) for the Respondent(s) No. 3
MS MONALI BHATT, APP (2) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 13/10/2021

                               ORAL JUDGMENT

1. Special Criminal Application No.2554 of 2013 is filed under Article 226 of the Constitution of India and Section 482 of the Criminal Procedure Code, 1973 (For short "Cr.P.C.")

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for quashing of order dated 23/10/2012 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Criminal Revision Application No.253 of 2012 and order dated 24/07/2013 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.51 of 2012.

2. Another petition being Special Criminal Application No.88 of 2013 is filed by the petitioner for quashing of the very Criminal Case No.51 of 2012 pending before the Additional Chief Metropolitan Magistrate, Ahmedabad and all the proceedings under the summons issued to the petitioner.

3. Both the matters arise from common facts, therefore, they are decided together.

4. The order dated 24/07/2013 of the learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.51 of 2012 was rejecting the prayer of the petitioner for permanent exemption in the proceedings of Criminal Case No.51 of 2012, which was moved on the ground that he is resident of Kolkatta, West Bengal and is a businessman suffering from heavy diabetes and other illness. The doctor has advised him not to be under mental stress and to have regular diet. Under those grounds of mental and physical condition, he had prayed for permanent exemption supported by medical certificate. The learned Judge while rejecting the application observed about the grounds, the circumstances and the type of offence. The learned Judge observed that the medical certificate is dated 14/07/2012 and the petitioner had not produced any document to show that the prior to that

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date, he was not medically capable to remain present before the concerned authority. Further the learned Judge observed that the petitioner had not remained present before the authority to answer the summons under Section 108 of the Customs Act, 1962 and thereafter also has failed to remain present before the Court. The plea in the matter was yet to be recorded and for that purpose, presence of the petitioner is required. Further it is observed that presence of the petitioner was required before the authority at Ahmedabad and for that purpose, the plea that his presence at the office at Kolkatta would have suffice cannot be considered as reasonable. The said order was challenged before the Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad by way of Criminal Revision Application No.253 of 2012 and the Revisional Court dismissed the Criminal Revision Application No.253 of 012 with following vital observations:

"7. Referring to the fact that the Criminal Case is on the stage of recording plea of the accused and in absence of the accused plea cannot be recorded and Criminal Case could not be proceeded further, it appears that there is no error made by the learned Additional CMM in rejecting the prayer of the accused. However, it is submitted by the LA for the accused that the accused is at present suffering from serious illness and he will try to appear before the learned Additional CMM on recovery and therefore about two months time may be given to the accused for appearing before the learned Additional CMM."

5. Special Criminal Application No.88 of 2013 challenges the proceedings of Criminal Case No.51 of 2012 pending before the Chief Metropolitan Magistrate, Ahmedabad, prays

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for quashing the summons issued to the petitioner. Further prayer is made for issuance of writ of mandamus commanding the respondents not to issue summons in exercise of powers under Section 108 of the Customs Act,1962 with a declaration that such powers cannot be exercised to summon the person to a place where no cause of action has arisen and beyond the territorial limits of the magisterial jurisdiction without permission of the Magistrate.

6. The petitioner states that he is carrying on business of import of betel nuts which are freely importable under the Foreign Trade Policy of 2011 to 2014. The Government of India in exercise of powers conferred under Section 25 of the Customs Act, 1962 issued notification No.105/99 (CUS) for granting exemption to the goods imported from Bangladesh under SAPTA. Bangladesh is one of the signatories of the Treaty. Import of betel nuts from Bangladesh are entitled to the exemption provided under Section 25 of the Customs Act, 1962.

7. The petitioner imported several consignments of betel nuts from Land Custom Station at Petrapole in West Bengal within the jurisdiction of Commissionerate of Customs, Kolkatta between 2009 to 2012. The petitioner filed bills of Entry claiming benefit of exemption notification no.105/99 (CUS) which were forwarded to DRI-Kolkata for investigation who directed the petitioner to furnish Bank Guarantee for release of the goods. The petitioner contends that the goods were provisionally assessed to duty and clearance orders were passed under Section 47 of the Customs Act and thereafter goods came to be released. The said goods were sold in

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domestic market at Kolkatta in wholesale and in retail too. It is stated by the petitioner that the goods were sold locally and there was no inter state movement of the imported goods. The petitioner also paid additional duty.

8. The petitioner alleges that on or about 14/02/2012, a search and seizure was caused by the officers of the Directorate of Revenue Intelligence, Kolkatta Zonal Unit, Kolkatta at the office premises of the petitioner and documents relating to the import of betel nuts were seized.

9. On 14/02/2012, the petitioner was summoned to the office of the Directorate of Revenue Intelligence, Kolkatta at their office at 8, Ho-Chi-Minh Sarani, Kolkatta for appearance in their office on the same day in connection with the import of betel nuts. The petitioner states that during the course of the investigation, he was informed that the officer from the office of the Deputy Director, Revenue Intelligence, Ahmedabad had joined the team of the officers at Kolkatta.

10. The petitioner further states that he was served with the summons by the Directorate of Revenue Intelligence Kolkatta on 15/02/2012 directing the petitioner to attend the officer of the Deputy Director, Revenue Intelligence, Ahmedabad to get his statement recorded at the office of Revenue Intelligence, Ahmedabad.

11. The petitioner objected to the service of summons by the officers of the Directorate of Revenue Intelligence, Kolkatta contending that the investigation, such as search and seizure were being conducted at Kolkatta within the jurisdiction of

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the Commissionerate of Customs, Kolkatta and when no cause of action arose beyond the said jurisdiction nor there was any import done outside the sate of East Bengal, the petitioner could not be directed to go to Ahmedabad. The petitioner stated that the summoning the petitioner at Ahmedabad for investigation where no cause of action has taken place is highly improper.

12. The petitioner further stated that on objection being raised by the petitioner, the Directorate of Revenue Intelligence, Kolkatta resumed the investigation and the officers of the Directorate of Revenue Intelligence, Kolkatta issued summons to the petitioner dated 16/02/2012 to appear at their office at 8, Ho-Chi-Minh Sarani, Kolkatta in relation to the investigation of import of betel nuts. It is alleged that for the self same investigation and import of betel nuts again the petitioner received summon dated 21/02/2012 from respondent no.2 who was part of the team of DRI at Kolkatta directing the petitioner to attend his office on 16/02/2012 stating that in view of the investigation being done by the Directorate of Revenue Intelligence, Ahmedabad in relation to import of betel nuts from Bangladesh, the petitioner would be required to appear at Ahmedabad for investigation. Another summon was received by the petitioner on 06/03/2012.

13. On 23/03/2012, respondent no.3 filed a complaint being Criminal Case No.51 of 2012 before the court of Additional Chief Metropolitan Magistrate, Ahmedabad for the offences punishable under Sections 174 and 175 of the Indian Penal Code, 1860 read with Section 108 of the Customs Act.

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14. Learned advocate Mr. Paritosh Gupta for the petitioner submitted that the officers of the Directorate of Revenue Intelligence have been given all India jurisdiction by virtue of notification no.17/2002 (CUS(NT)) dated 07.03.2002 issued by the Board of Customs and Central Excise in exercise of powers conferred under Section-4 of the Customs Act, 1962. The petitioner duly replied to the Deputy Director, Revenue Intelligence of Ahmedabad by his letter dated 15/03/2012 qua the summons dated 21/02/2012 and 06/03/2012 contending that the investigation must be done at Kolkatta. Further his personal ailment would not allow him to travel to Ahmedabad.

15. Mr. Paritosh Gupta, learned advocate states that Director of Revenue Intelligence, Ahmedabad has no jurisdiction in law to summon a person at Ahmedabad where no cause of action has taken place in view of Section 160 of the Cr.P.C. which becomes applicable to the proceedings under Section 108 of the Customs Act, 1962.

16. Learned advocate Mr. Paritosh Gupta stated that conduct of the respondent in issuing summons at a place where no cause of action has arisen is ultra vires the Constitution of India and violative of Article 14, 20 and 21 of the Constitution of India. He further stated that even an officer having all India jurisdiction, if to investigate an offence, he can issue a show cause notice as a jurisdictional officer of a particular locality. An officer of Directorate Revenue Intelligence having all India jurisdiction having his seat of office at Ahmedabad, if wants to investigate the offence for the Kolkatta, he is to exercise powers that of jurisdictional officer at Kolkatta and his seat of office at

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Ahmedabad cannot create jurisdiction for investigation or prosecution and he would be required to report for the same to the jurisdictional Magistrate where the cause of action has arisen. Issuance of summons to the petitioner calling him to the Ahmedabad officer is contrary to law, and proceedings thereunder are liable to be quashed and set aside. He further stated that proceedings under Section 174 and 175 of the Indian Penal Code would be an off shoot or corollary of the proceedings of the main cause of action and the same are required to be filed before the Magistrate who is having jurisdiction for the same. The subject complaint at Ahmedabad has no connection with the import of goods.

17. Mr. Dhaval Vyas, learned Standing Counsel for the Deputy Directorate, Revenue Intelligence, Ahmedabad, relying upon the affidavit of respondent no.3 executed by Gautham S., submitted that on the basis of intelligence it was found that various importers along with the petitioner were engaged in fraudulent imports of Betel Nuts falling under CTH-080290 by using Import-Export Code (IEC) of M/s. S. Krishna and Co. (IEC No.0293012113) through Petraple Land Customs Station, which resulted in evasion of duty of about 100 crores, and investigation for offences which are made cognizable U/s 104 of the Customs Act, 1962, was initiated and undertaken by DRI, Ahmedabad with the assistance of DRI, Kolkatta. It is denied that the offences of evasion of duty under the Customs Act, 1962 are non-cognizable and the permission of the magistrate is required for the investigation, as alleged or at all. The investigation revealed that petitioner and other importers purchased betel nuts from Indonesia which were shown to have been imported initially at

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Bangladesh and then re-exported to India, with a view to seek exemption under the notification no.105/99. The investigation revealed that huge sums were transmitted to the Indonesian supplier by these Indian importers through various channels based in other countries. It is also contended that DRI, Ahmedabad had issued summons under Section 108 to Mr.Narendra Lodaya as well as his associate Mr.Dhaval Lapasiya, pursuant to which their statements came to be recorded by DRI, Ahmedabad on 14.02.2012, 15.02.2012 16.02.2012, 17.02.2012 and 28.02.2012. DRI, Ahmedabad conducted searches at the premises of Mr. Narendra Lodaya in Mumbai on 14.02.2012 with the assistance of DRI, Mumbai. Since, the Bills of Entry filed by S. Krishna & Co., were provisionally assessed by Customs, Kolkatta, therefore, DRI, Ahmedabad had shared the relevant record with the office of Customs, Kolkatta, acting on which the Commissioner of Customs (Preventive), West Bengal, Kolkatta issued a show cause notice to the petitioner and his associate Mr.Narendra Lodaya.

18. Mr. Dhaval Vyas, learned Counsel further contended that DRI, Ahmedabad was the principal agency which was investigating the evasion of the duty. The investigation revealed involvement of the petitioner and therefore summons were issued by DRI, Ahmedabad, under Section 108 of the Customs Act, 1962 which cannot be termed as exceeding jurisdiction or without authority of law, in view of the notification No.17/2002-Customs (N.T) which empowers and extends the jurisdiction of Directorate of Revenue Intelligence across the country.

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19. Mr. Dhaval Vyas, learned Counsel submitted that the petitioner had the knowledge of the inquiry conducted by the DRI, Ahmedabad since on the first date of his inquiry i.e. 14/02/2012 by the DRI, Kolkatta, team of DRI, Ahmedabad was present.

20. Mr. Dhaval Vyas, learned Counsel submitted that the petitioner was bound to appear before the custom authority to answer the summons and the petitioner could not claim any exemption as it would not fall under the category of Section 132 of the Code of Civil Procedure and no legitimate cause was shown of his failure to respond to the summons. Summons were served for appearance on 21/02/2012, 02/03/2012, 20/03/2012 and non compliance of the process under Section 108 of the Customs Act, 1962 would entail the offence punishable under Section 174 and 175 of the Indian Penal Code.

21. Learned Counsel for respondents nos.1 and 2 in Special Criminal Application No.88 of 2013, on instruction, adopts the submissions made by learned Counsel for respondent no.3. The appearance for respondent no.2, if not on record, then the registry to accept the same.

22. Section 108 of the Customs Act, 1962 reads as under:

"108. Power to summon persons to give evidence and produce documents.--

(1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to

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produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)."

23. The provision empowers the custom officers to issue summons to any person, in any inquiry under the Customs Act, 1962, whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under the Act. The empowered custom officer can require a person to produce documents or other things. It may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned. The term 'summons' means asking a person to appear before the authority and give evidence and produce documents or other things. The person summoned is bound to attend either in person or by an authorized agent as such officer may direct, and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or

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make statements and produce such documents and other things as may be required.

24. Only exemption provided under Section 108 of the Customs Act is under Section 132 of the code of Civil Procedure.

"Section 132 of Code of Civil Procedure reads as under:

132. Exemption of certain women from personal appearance - (1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code."

25. This benefit of exemption gets extended to women classified in Section 132 of the CPC. The petitioner is bound to appear before the authorized officer. This power of summons is different from power of the Court to issue summons under the Code of Civil Procedure or the Criminal Procedure Code.

26. The power of summons to investigate officer is 'demand presence' or 'call upon a person to appear' and non attendance of a person of any order from a public servant is an offence punishable under Section 174 of the Indian Penal Code.

27. This Court, as a matter of fact, cannot enter into the disputed facts by invoking the inherent jurisdiction of Section

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482 of the Cr.P.C.

28. Respondent no.3 by way of the affidavit, has given details of their authority to summon the petitioner. Thus, this Court does not find any reason to interdict to the process initiated by filing the complaint before the Additional Chief Metropolitan Magistrate, Ahmedabad as Criminal Case No.51 of 2012.

29. Further, the petitioner had moved an application for permanent exemption which was primarily rejected on the ground that plea was yet to be recorded. If at all after recording plea, the petitioner may again move an application for his exemption during the trial then learned Judge may deal with the same, without being influenced by the observations made in this order, in accordance with law.

30. With the aforesaid observations, present petitions stand disposed of as dismissed.

(GITA GOPI,J) ila