2019 (2) TMI 220 - HC - Customs

Court dismisses case due to lack of evidence and failure to prove prosecution sanction under Customs Act.

Customs Preventive New Customs House Thr. Naresh Kumar, Inspector Versus Ajay Kumar Bansal

The court focused on the failure to prove the sanction for prosecution in a criminal complaint under Section 135 of the Customs Act, 1962. The ... Validity of complaint filed for Offence u/s 135 of the Customs Act, 1962 - sanction and authorization for prosecution of public servant - the complaint was filed by a public servant in official capacity, no preliminary inquiry was held, cognizance being taken on the complaint - principles of natural justice - Held that:- complainant, took its own time in prosecuting the complaint, it having lingered on over the years - The manner in which the proceedings have been held and the manner in which the petitioner has conducted the prosecution gives the impression it is more of persecution than prosecution. It is the duty of the prosecutor to ensure that all such evidence is properly and formally adduced. It is not a private prosecution but prosecution in the name of an entity of the State. The prosecutor had a duty of trust to discharge. He could not assume that the witness would himself offer all the necessary facts. After all, the witness was a public servant holding the rank of an inspector. He required assistance and, for his chief-examination, proper questions had to be put to him by the prosecutor. The failure to bring formal evidence in respect of sanction for prosecution, in these circumstances, is wholly and squarely that of the public prosecutor in-charge. He should have fully awakened to the neglect or omission on his part at least at the time of arguments on charge. The direction of the revisional court for fresh sanction to be obtained was wholly uncalled for inasmuch as the sanction granted prior to the launching of the complaint is already there and it is that sanction which is relevant. The criminal prosecution of such nature cannot be allowed to be reduced to a mockery, not the least, at the whims of individuals. After all, public interest involved in such prosecution also has to be taken care of - petition is allowed with costs of ₹ 50,000/- to be deposited by the petitioner with Delhi High Court Legal Services Committee within two weeks hereof. Issues:1. Failure to prove sanction for prosecution in a criminal complaint under Section 135 of the Customs Act, 1962.2. Lack of formal evidence adduced regarding sanction document.3. Delay in prosecuting the complaint leading to a casual approach.4. Duty of the prosecutor to ensure proper evidence presentation.5. Revisional court's direction for fresh sanction and subsequent challenge.6. Petitioner's plea for additional opportunity to prove the sanction.7. Court's decision on the petition with imposed costs and directions for further proceedings.Analysis:1. The judgment revolves around the failure to prove the sanction for prosecution in a criminal complaint under Section 135 of the Customs Act, 1962. The petitioner filed a complaint in 1992, and the respondent was summoned as an accused. However, the prosecution evidence was closed in 2006, and the ACMM discharged the respondent in 2010 due to lack of evidence warranting conviction.2. The lack of formal evidence adduced regarding the sanction document was a crucial issue. The petitioner's representative officer filed the complaint accompanied by sanction and authorization for prosecution. However, the prosecutor failed to ensure proper evidence presentation, leading to a significant lapse in the proceedings.3. The judgment highlighted the delay in prosecuting the complaint, which resulted in a casual approach towards the proceedings. The court criticized the petitioner for the prolonged duration of the case, spanning over 25 years, and emphasized the seriousness of criminal prosecution, pointing out the need for a diligent and responsible approach.4. The duty of the prosecutor to ensure proper evidence presentation was emphasized in the judgment. The court noted that the prosecutor failed to fulfill the duty of trust in prosecuting the case on behalf of the State. The prosecutor's negligence in not adducing formal evidence of the sanction document was a critical factor leading to the discharge of the respondent.5. The revisional court's direction for obtaining fresh sanction and the subsequent challenge by the petitioner were significant aspects of the judgment. The ASJ set aside the ACMM's order of discharge, stating that the proceedings could not have been dropped without proper evidence of the sanction. The petitioner challenged this decision, leading to further directions for the proceedings.6. The petitioner pleaded for an additional opportunity to prove the sanction, invoking the court's inherent power under Section 482 Cr.P.C. The court allowed the petitioner to deposit costs and recover them from the responsible party for the lapse in proving the sanction, granting liberty to examine additional witnesses for the same.7. The court ultimately allowed the petition with imposed costs and directed the petitioner to deposit the amount with the Delhi High Court Legal Services Committee. The petitioner was granted the liberty to recover the costs from the responsible party. Additionally, the court provided directions for further proceedings, including the examination of additional witnesses to prove the sanction for prosecution.