R. Selvaraj vs The Deputy Commissioner Of ...
2021 Latest Caselaw 25292 Mad

                                                                                    Crl. O.P. No.18335 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated 23/12/2021

                                                       CORAM

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                              Crl. O.P. No.18335 of 2017
                                                         and
                                              Crl.M.P.No.11198 of 2017


                     R. Selvaraj                                 ...         Petitioner

                                                           Vs

                     1. The Deputy Commissioner of Customs
                        Prosecution Unit (Air)
                        Custom House
                        Chennai 600 001.

                     2. M/s. India Sales Corporation
                        rep. By its Partners
                        Shri Tayeb Haroon
                        Having Office at
                        A 19-20, MEPZ
                        Phase II, Tambaram
                        Chennai 600 045.

                     3. Tayeb Haroon                             ...         Respondents


                     PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to set

                     aside the order passed by the learned Additional Chief Metropolitan Magistrate,


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                                                                                            Crl. O.P. No.18335 of 2017


                     EOI, Allikullam at Egmore in Crl.M.P.No.1811 of 2017 in E.O.C.C.No.23 of

                     2014.



                                        For Petitioner          ...     Mr.V.K.Sathiamurthy

                                        For Respondent            ...   Mr.N.P.Kumar
                                                                        Spl.P.P for R.1

                                                                -----

                                                           ORDER

This Criminal Original Petition has been filed to set aside the order

passed by the learned Additional Chief Metropolitan Magistrate, EOI,

Allikullam at Egmore, in Crl.M.P.No.1811 of 2017 in E.O.C.C.No.23 of 2014.

2. Heard Mr.V.K.Sathiamurthy, learned counsel for the petitioner and

Mr.N.P.Kumar, learned Special Public Prosecutor for the first respondent.

3. The main contention of the learned counsel appearing for the

petitioner is that prosecution has been launched on the basis of the private

complaint filed by the first respondent/complainant, for the offence punishable

under Sections 132 and 135 of the Customs Act, 1962.

4. It is his further submission that on 24/2/2017, prosecution has filed a

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petition in Crl.M.P.No.466 of 2017, under Section 311 of the Code of Criminal

Procedure, to examine the witnesses. Despite P.W.2 was recalled and

examined, now an application has been filed to file an additional document,

which is not permissible in law. The petitioner would have exercised the power

of discharge from the criminal prosecution whereas the application has been

filed to prevent such action. This application has been filed to show as if there

is prima facie materials to proceed against the accused. Hence it is his

contention that this application is nothing but to fill up the lacuna.

5. The learned counsel further submitted that the reasons assigned for

recalling, filing additional documents is also not convincing, except contending

that due to inadvertence, the document could not be filed. It is also his

submission that no provision has been mentioned. The application is just to

receive the document which is not maintainable under the eye of law. In

support of his submissions, he has relied upon the judgment of this Court in

GAYES Vs. STATE, rep. BY ITS INSPECTOR OF POLICE,

KULASEKARANPATTINAM POLICE STATION, THOOTHUKUDI

DISTRICT (CDJ 2018 MHC 7020.

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6. The learned counsel appearing for the petitioner submitted that though

P.W.2 was recalled in Crl.M.P.No.466 of 2017, he was not reexamined, as per

the orders of this Court, whereas the complaint itself clearly indicate the nature

of the document relied upon by the Customs Department. Bill of Entry is

already filed and marked as exhibit. The said bill itself is generated on the

basis of the invoice and packing list. At the time of earlier application filed for

recalling some witnesses, the invoices and packaging list of the accused

Company omitted to be filed, due to inadvertence. Therefore, this document is

absolutely necessary to prove the charges against the accused. Hence submitted

that the trial Court has allowed the application, taking note of the nature of the

document.

7. Normally, it is well settled that the prosecution cannot be allowed to

fill up the lacuna, after examination of the witnesses. Similarly for the sake of

recalling and marking documents, the Courts cannot act mechanically and pass

such an order. It is not disputed by both sides that the application filed under

Section 311 of Cr.P.C., has already been filed, to recall P.W.2. But however,

the order was passed and he was not re-examined. While examining P.W.2, the

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document now sought to be marked this invoice-cum-packing list was omitted

to be marked by the Customs Department. Whereas, on perusal of the

complaint, there is a mention about this document and other bills have been

marked. Though the trial of the case is governed by Sections 244 and 245 of

the Code of Criminal Procedure, the fact remains that the ultimate object of the

Courts to find out whether the fact in issue is proved and all the relevant

documents are available on record.

8. On the basis of the evidence produced by the complainant, if the

Magistrate of the Court finds that no case against the accused has been made

out, the Court shall discharge such accused. If the Court finds that evidence on

record does not disclose the case against the accused if rebutted to warrant

conviction, the accused would be discharged. Therefore, merely because the

document is sought to be filed which was omitted and it was relevant to

connect other facts, accused cannot claim right of discharge automatically.

Therefore, the contention of the learned counsel for the petitioner that right of

discharge is lost by way of filing additional document, cannot be countenanced.

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9. It is not that the new document is sought to be introduced, only an

invoice-cum-packing list said to have been issued by the accused Company.

Therefore, mere omission to bring on certain document due to inadvertence at

the time of examining the witnesses at an earlier time by the Public Prosecutor

is concerned, the same cannot be taken advantage to contend that such

document has been filed only to fill up the lacuna.

10. At the same time, this Court records its displeasure over which the

prosecution conducted by the Department, particularly, the Special Public

Prosecutor appearing on behalf of the first respondent. The learned Special

Public Prosecutor should make an endeavor to bring all the relevant and

connected document, through the proper witnesses and there cannot be

mechanical filing of the applications every time for bringing some documents

which were omitted by them. On a perusal of the entire order of the trial Court

and order passed under Section 311 of Cr.P.C., the same would indicate that

such lapses is only due to Special Public Prosecutor and not by the Department

nor by the accused.

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11. In view of the above observation, this Court is of the view that role

of the Special Public Prosecutor appearing for the Customs is to inform the

Department to hand over all the documents, at the time of filing the complaint

itself, to avoid such instance in the Court of law particularly, when the

prosecution has launched by the Customs Department. Of course in the

judgment of GAYES Vs. STATE, rep. BY ITS INSPECTOR OF POLICE,

KULASEKARANPATTINAM POLICE STATION, THOTHUKUDI

DISTRICT (CDJ 2018 MHC 7020) has held that any exercise of discretionary

power when done arbitrarily can be interfered by this Court under Section 482

of the Code of Criminal Procedure.

12. In the above cited case, prosecution has sought to be reexamined all

the sixteen witnesses at the stage of final argument. In that context, this Court

rejected 311 petition, whereas, the facts in the present case, is entirely different

and the above judgment cannot be applied. As far as the contention of the

learned counsel that no provision has been quoted for filing to receive the

additional document. Mere non quoting any provision will not make any dent

or prejudice to the accused. After all, the document sought to be filed is the

invoice issued by the accused. Further, the accused will also be given an

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N. SATHISH KUMAR, J

mvs.

opportunity to cross examine the witnesses in this regard. In such a view of

the matter, there is no infirmity in the order passed by the Court below.

13. In the result, this Criminal Original Petition is dismissed.

Consequently connected Criminal Miscellaneous Petition is closed.

23/12/2021 mvs

Index : Yes / No Internet: Yes Speaking/non speaking order

To

1. The Additional Chief Metropolitan Magistrate, EOI, Allikullam at Egmore

2. The Deputy Commissioner of Customs Prosecution Unit (Air) Custom House Chennai 600 001.

3. The Public Prosecutor, High Court, Madras.

Crl. O.P. No.18335 of 2017

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