2024 (5) TMI 945 - HC - Customs

Former director's prosecution under IPC Sections 174-175 for ignoring DRI summons quashed as Customs Act Section 117 provides specific remedy

The HC quashed the complaint and summoning order against the former director for prosecution under Sections 174-175 IPC for non-compliance with DRI ... Petition filed u/s 482 CrPC - Quashing of Complaint and Summoning Order - Power of DRI - Summon issued to face prosecution under Sections 174 & 175 of the IPC to the Petitioner being Former Director of M/s Kwality Overseas Pvt Ltd. - Jurisdiction and Procedure under Special Law vs. General Law - HELD THAT:- Section 174 and 175 of Indian Penal Code provides punishments for committing offences for non-attendance in obedience to an order from public servant or omission to produce document or electronic record to public servant by person legally bound to produce it. Had there been no provision like 117 in the Customs Act, obviously the concerned person to whom summons have been issued under Section 108 of the Customs Act, if fails to comply therewith, would have been guilty for committing an offence under Section 174 of 175 or both of the IPC, as the case may be but as Section 117 of the Customs Act, finds place in a Special Act i.e., Customs Act, which is a complete code in itself providing for various violations, offences and penalties and the procedure etc., therefore, Section 174 & 175 of Indian Penal Code will have no application, in view of Section 4 & 5 of the Criminal Procedure Code Thus, it is held that impugned complaint as filed by the respondent against the petitioner seeking his prosecution Section 174 & 175 of the Indian Penal Code, cannot be sustained. The said complaint and order dated 22.04.2015 passed by learned Additional Sessions Judge, Ludhiana, upholding the summoning order dated 06.06.2012 of learned Chief Judicial Magistrate, Ludhiana, whereby petitioner has been summoned to face prosecution under Sections 174 & 175 of the IPC, are hereby quashed. However, complainant – respondent will be at liberty to proceed against the petitioner as per Section 117 of the Customs Act, 1962. Disposed of accordingly. Issues Involved:1. Quashing of Complaint and Summoning Orders under Sections 174 & 175 of IPC.2. Applicability of Section 108 and Section 117 of the Customs Act, 1962.3. Jurisdiction and Procedure under Special Law vs. General Law.Issue-wise Detailed Analysis:1. Quashing of Complaint and Summoning Orders under Sections 174 & 175 of IPC:The petitioner sought to quash complaint No. 112 dated 06.06.2012 and the subsequent orders upholding the summoning order under Sections 174 & 175 of the IPC. The complaint alleged that the petitioner, as Director of M/s Kwality Overseas Pvt Ltd., failed to appear in response to multiple summons issued under Section 108 of the Customs Act, 1962. Despite reasonable opportunities, the petitioner intentionally and willfully remained absent from the investigation. The Chief Judicial Magistrate found a prima facie case and issued process against the petitioner. The petitioner challenged this in the High Court and later in the Court of Sessions, both of which upheld the summoning order.2. Applicability of Section 108 and Section 117 of the Customs Act, 1962:The petitioner contended that Section 108(3) of the Customs Act allows attendance either in person or by an authorized agent, and in this case, the authorized agent appeared but the respondent was unavailable. It was further argued that Sections 174 & 175 of IPC should not apply as the Customs Act, 1962, being a special law, provides its own penalties under Section 117 for non-compliance with Section 108. Section 117 of the Customs Act provides for a penalty not exceeding Rs. 4,00,000 for contraventions where no express penalty is mentioned.3. Jurisdiction and Procedure under Special Law vs. General Law:The court examined Sections 4 & 5 of the Code of Criminal Procedure, which state that special laws override general laws. The court noted that Section 117 of the Customs Act is a residual provision that covers any contravention of the Act, including non-compliance with Section 108. Therefore, the penalties under the Customs Act should apply rather than those under the IPC. The court referenced the Supreme Court's rulings in 'General Manager, Telecom v. M. Krishnan' and 'Jasbir Singh v. Vipin Kumar Jaggi,' which established that special laws take precedence over general laws.Conclusion:The court concluded that the complaint and the orders summoning the petitioner under Sections 174 & 175 of IPC could not be sustained. The Customs Act, being a special law with its own penalties under Section 117, should govern the case. Consequently, the complaint (Annexure P-1) and the orders upholding the summoning (Annexures P-11 and P-13) were quashed. However, the respondent was granted liberty to proceed against the petitioner under Section 117 of the Customs Act, 1962.Disposition:The petition was disposed of accordingly, with the complaint and summoning orders under IPC quashed, but allowing the respondent to take action under the Customs Act.