2019 (10) TMI 26

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....aid case, the Petitioner has preferred an application for compounding of the alleged offence before the compounding authority under section 137(3) of the Customs Act, 1962. Immediately thereafter, the Petitioner has filed the instant writ petition to safeguard his fundamental rights while interalia seeking following reliefs :   (a) Issue a writ of mandamus, or any other appropriate writ, order or direction, restraining the Respondent No.1 from filing any criminal prosecution qua the Petitioner under the provisions of Customs Act, 1962 for alleged compoundable offence, in respect of which the Application for compounding as permitted under the Customs Act, 1962 read with section 320 of Cr.PC. is already filed; (b) Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the Respondent No.3 to expeditiously adjudicate and decide on merits by a speaking order, the Petitioner's application dated 18.09.2019 (at Exhibit-'B'), for 'Compounding' of alleged 'compoundable' offence/s punishable under the Customs Act, 1962, by exercising powers conferred under section 5(2) read with section 122 and 137(3) of the Customs Act, 1962, at this sta....

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....y the Central Government in exercise of power conferred under section 135(1)(4)(c) of the Customs Act, 1962, specifying fake Indian currency notes as goods falling in the category of "prohibited goods" for the purpose of said section. The learned counsel for the Petitioner invited our attention to sections 135, 104(6)(b) and 104(7) of the Customs Act, 1962, to claim that the alleged offence is classifiable under section 104(7) of the Customs Act, 1962, which is "Bailable". He submitted that the Petitioner is willing to comply with the provisions of the "compounding" and would comply with the procedure for compounding and deposit the amount, if any, informed upon adjudication by the compounding authority. He invited our attention to the prayers as well as earlier orders passed by this Court in another matter wherein appropriate directions were issued to expedite the adjudication and the compounding procedure and bail was also granted. He, thus, sought relief as prayed, to safeguard the Petitioner's fundamental rights.   7. Ms. Gonsalvez, learned counsel for the Respondent - DRI fairly submitted that clauses (a), (c), (d) and (e) of section 104(6) of the Customs Act, 1962 wer....

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....s Anjum [(2013) 1 SCC 376]; (vi) Saurabh Kumar v. Jailor Koneila Jail [(2014) 13 SCC 436. 9. Ms. Kantharia, learned counsel for the compounding authority adopted the submissions made by learned counsel for the Respondent-DRI. 10. As per the DRI itself, the case under investigation is of smuggling of exotic animals which are not native to India, in violation of provisions of the Customs Act. On 27th July 2019, from the possession of one Ashfaq, who was intercepted at Kalamboli Bus Stop, Navi Mumbai, DRI has seized an exotic albino monkeys and twenty exotic baby Siamese crocodiles which are not native to India. The said seizure is under reasonable belief that seized exotic animals are smuggled into India in contravention of the provisions of Customs Act. The exotic animals were handed over to the Forest Officers for safe custody. It is further case of the DRI that in follow-up investigation, they found that the Petitioner had purchased these exotic animals in market at Bangkok and was a key member of the syndicate. It is further alleged that on his instructions, the carriers have smuggled into India, the exotic animals for monetary consideration and then transferred....

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....sed the notification issued under section 11 of the Act, which has been relied upon by the learned counsel for the Respondent-DRI. No notification could be produced by the Respondents to show that the exotic animals are specified as "prohibited" under section 135(1)(i)(c). 14. Admittedly clauses (a), (c) and (d) of section 104(6) of the Customs Act, 1962 are not applicable. We are unable to accept the contention of learned counsel for the Respondent-DRI that even if prohibited goods are not those which are notified under sub-clause (c) of clause (i) of section 135(1) and are only notified under section 11, that would be sufficient to invoke sub-section (6) of Section 104. Such an interpretation would render the words "which are also notified under sub-clause (C) of clause (i) of section 135(1)", in sub-section (6) as redundant and nugatory. Such an interpretation is contrary to all cannons of law. The provisions which relate to personal and liberty and fundamental rights guaranteed under Article 21 of the Constitution of India cannot be interpreted in such a manner as is being suggested by the Respondents. We are, therefore, clear that section 104(6)(b) is not attracted in the c....

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.... of diamond ear-rings and took self - contradictory steps, as narrated in the judgment. Here, no exotic animals have been recovered from the possession of the Petitioner. The learned counsel for the Petitioner has categorically stated that the Petitioner is not even claiming the seized ani9mals. 19. It is further seen that there is no seizure of exotic animals from the possession of Petitioner. The case qua the Petitioner is mainly on the strength of statements under section 108 of the Customs Act, 1962. Burden is on the department to give cogent material in adjudication proceedings. It is not mandatory that application for compounding can only be filed by admitting the guilt. This beneficial provision is also available to prevent needles proliferating of litigation. 20. Section 137(3) of the Customs Act, 1962 permits the filing of compounding application at any stage and provides that any offence under that Chapter may, either before or after the institution of the prosecution, be compounded by the principal chief commissioner of customs or chief commissioner of customs on payment by the person accused of an offence, to the Central Government, of such compounding amount and ....

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....g or compounding authority in accordance with law and the contentions of both sides would be open. 22. In the light of above facts and circumstances, we allow the writ petition by passing following order : (1) We hold that the alleged offence qua the Petitioner is bailable offence under section 104(7) of the Customs Act, 1962. The Petitioner, therefore, shall be forthwith released on cash bail in the sum of Rs. 50,000/- to be deposited with the Jail Superintendent of Arthur Road Jail, Mumbai in Remand Application No.161 of 2019 of Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai. (2) The Petitioner shall co-operate in the investigation and shall remain present as and when called by the investigating agency. The Petitioner is, however, permitted to have an advocate accompanying him at visible but not audible distance during his investigation by the officers of Respondent DRI - investigating agency and recording of his statement shall be video-graphed in terms of the decision of the apex Court in Vijay Sajnani v. Union of India [Cri. M. P. No. 10117 of 2012 in WP (Cri.) No. 29 of 2012] and Rajinder Arora v. Union of India [WP (Civil) No. 389....