TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 852
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...., 1973 for issuance of the Letter of Rogatory by the Magistrate. Before we grapple with the said question of law, we would like to recount the bare minimum facts for answering the said question. 2. The petitioner is alleged to be involved in the over valuation of coal of Indonesian origin and it is alleged that during the period from October 2010 to March 2016, Adani Group of Companies had imported about 1300 consignments of Indonesian Coal and majority of the import came to be routed through their group subsidiary company i.e. Adani Global Private Limited (AGPTE), Singapore and Adani Global (AGFZE), Dubai. It is noted that both the said companies are 100% subsidiaries of a Mauritius Based Company i.e. Adani Global Limited (AGL) which is an 100% owned subsidiary of Adani Enterprises Limited i.e. petitioner no.1 before us. It is alleged that the petitioner acting in connivance with the individuals and companies grossly overstated the import value of coal as compared to the actual export value ex-Indonesia and prevalent international prices and it is alleged that with an object of siphoning of the money abroad and to avail higher power tariff compensation, this course was adopted so....
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.... and AGFZE were the step down subsidiaries of AEL, there was no response. This alleged non co-operation of the Adani Group of Companies as well as their banks in submitting the transaction relating documents/information compelled the DRI to prefer application before the Addl. Chief Metropolitan Magistrate, 8th Court Mumbai with a request to issue Letter of Rogatory to the authorities at Singapore,UAE, Hongkong, British Virgin Irelands in order to secure the necessary information. The Addl. Chief Metropolitan Magistrate obliged the authorities after examining the applications made by the DRI and the case records and issued four letters of Rogatory under the Mutual Legal Assistance Treaty (MLAT) on different dates. The Letter of Rogatory to Singapore was issued on 2/8/2016 and forwarded to the competent authority in Singapore. It is this course of action which is oppugned in the petition instituted by it. 4. In support of the petitioner, we have heard the learned senior counsel Shri Nankani who has over simplified his case by stating that the provision of issuance of Letter of Rogatory contained in Section 166-A of Cr.P.C can be availed of only when the investigation commence under ....
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....oods" or "evasion of attempted evasion of duty exceeding Rs. 50 lakhs". Thus, according to Shri Nankani, the act alleged against him do not attract the prohibited goods category and he submit that there is no notification specifying coal as prohibited good issued by the Central Government under Section 135(1)(i)(c) of the Customs Act. Thus, as per Shri Nankani, the offences with which he is indicted is a non-cognizable offence falling under sub-section (5) of Section 104 of the Customs Act. His argument is focused in the backdrop of the fact that the classification of the alleged offence against the petitioner under Section 135 of the Customs Act and the investigation was illegally commenced and conducted, in a non-cognizable offence, despite there being no order under Section 155(2) read with Section 4(2) of the code of Criminal Procedure. The submission of Shri Nankani is to the effect that an investigation can only be initiated by lodging an FIR and when such an information relating to commission of a cognizable offence is received by an officer in-charge of a police station, he shall follow course of action as set down in Section 154 of the Code of Criminal Procedure and result....
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....hin S. Loungani Vs. Union of India (Order dated 06.09.2018 passed by the Hon'ble Supreme Court in SPL Cri.M P No.6051 of 2017) According to him, the judgment in case of Om Prakash (supra) is a bright line which luminates the course of action to be chartered by Custom Authority/DRI. We would deal with the same at a subsequent point of time since what we have noted is that the judgment which are sought to be relied by the learned senior counsel appearing for the DRI overlap and each of them making a distinction of the applicability of the ratio culled out from the said judgments. 6. In support of the respondent, we have heard the learned senior counsel Shri Maninder Singh, who would aver that the present petition is an attempt to frustrate the investigation being carried out by the DRI and is nothing but an attempt to thwart an entirely legal investigation being carried out by it into a serious allegation. The learned senior counsel would submit that section 166-A of the Cr.P.C which is a unique provision contained in the Code and which operates with a non-obstante clause can be justiciably invoked by any Investigating Officer, including a Custom officer, when it occurs to him, dur....
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....Act. The learned Senior counsel would also advance his submissions on Section 5 of the Code which provides for "Saving" and according to him,the position that emerges from Section 5 of the Code is to the effect that the provisions of Cr.P.C would not have any effect on any special or local laws or any special jurisdiction unless there is any specific provision to the contrary in the entire code. According to him, section 4 of the Code which deals with both the offences under IPC as well as offences under special laws, what is eminent is the segregation of two clauses contained in section 4; Section 4(1) deal only with offences under the penal code and 4(2) deal exclusively with the offences under the special laws. On a conjoint reading, according to learned senior counsel, the position that emerges is that the provisions of Cr.P.C. including Section 166-A which are not contrary or inconsistent with the scheme envisaged in the customs Act 1962 would apply to the investigation carried out by the Custom Officer under the Customs Act, 1962 and thus he is entitled to seek letter of Request Letter of Rogatory under Section 166-A of the Cr.P.C. He uses the judgment of the Apex Court in D....
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....ance and imposition of penalty when any goods are imported contrary to any prohibition imposed by or under the Act or under any other law for the time being in force. It also contains provision for levy and exemption from custom duties and set out the procedure for clearance of imported and export goods. The Act provides for constitution of an adjudicating authority and an entire mechanism for finalization of the decision of said Authority. For implementation of the provisions of the Act, classes of officers are designated as officers of Customs who are empowered to exercise the powers and discharge the duties conferred or imposed under the Act. The said enactment which empowers the Officers of Customs to deal with the prohibition and incidentally prevent or detect the illegal exports of goods, can be broadly classified into two parts i.e. the first part being exercise of power by the Custom Officer for the purpose of ensuring the collection of Revenue by preventing smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and goods of which entry is prohibited. These adjudicatory powers relate to exercise of t....
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....d and every such inquiry is deemed to be a judicial proceedings within the meaning of Section 193 and 228 of IPC. Section 110 authorizes the proper Officer to seize such goods as he has reason to believe which are liable to confiscation. Section 111 and Section 113 provides for confiscation of the goods which are improperly imported/ exported. Section 112, 114, 114A and 114AA, 116 and 117 provides for contravention of the provisions contained in the Act and which call for imposition of penalty. Chapter XV contains a provision for Appeal and set out the procedure in Appeal and also the powers of the Appellate Tribunal. According to the DRI, the petitioner is alleged to have misdeclared the grade and value before the custom authorities and at the time of import and the goods are liable for confiscation in terms of Section 111(m) of the Customs Act and the persons involved are liable to penalty under Section 112(b)(ii) and Section 114AA of the Customs Act. The offences as per DRI are punishable with imprisonment for a term which may extend to two years or with fine or both under Section 132 of the Customs Act. The DRI has also alleged that they are liable to be indicted under Section....
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....in convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than 3[one year]. 8. The position that emerges from the aforesaid statutory scheme invest the Custom Officer with the power to search a person, to arrest a person and to examine the person and summon a person to give evidence and to produce documents and also empower him to seize the goods, documents and things which are liable for confiscation. The Custom Officer is also empowered to release a person on bail. The cognizance of the offences under the Customs Act, 1962 can be taken by the Court only on the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs. 9. At this stage, it would be apposite to reproduce Section 104 which confers a power on the Officer of Customs to arrest a person and it also classifies the offences as under : 104 Power to arrest :­ (1) If an officer of customs emp....
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....vasion or attempted evasion of duty exceeding 50 lakhs is cognizable and all other offences under the Act are non-cognizable. At this point, it would be relevant to note that this provision has been has been substituted with effect from 28th May 2012 and prior to the said amendment and all offence under the Customs Act were classified as non-cognizable. Further, an offence punishable under Section 135 relating to clauses (a) to (d) of sub-section (6) are non-cognizable and all other offences under the Act are bailable. 10. The stanchion of the arguments advanced on both the sides is as to whether the offences which are cognizable/non-cognizable under the Customs Act, 1962 must undertake the route of Section 154 and 155 of the Cr.P.C and therefore, we deem it appropriate to briefly refer to the scheme of Chapter XII contained in the Code of Criminal procedure. Code of Criminal Procedure is Code which consolidated and amended the law relating to Criminal Procedure. It is enacted in exercise of powers conferred under Entry II of VII Schedule. It is necessarily procedural in nature and prescribe the procedure to be followed while dealing with the penal provisions. As an exception, it....
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....mission of the petitioner is to the effect that in absence of following the said pathway of Section 155(2) of Cr.P.C which happens to be a part of Chapter XII of Cr.P.C, it is not open for the officer of the custom to take recourse to the provisions contained in form of Section 166-A which pertains to issuance of Letter of Rogatory. 12. Once we have the spectrum of the two enactments before us, we would like to highlight the interplay between the operation of the two enactments and their impact on each other so as to unravel the conundrum. Section 4(1) of the Code of Criminal Procedure rule that the procedure contained in the Code would govern the offences under the Indian Penal Code whereas sub-section (2) of Section 4 determine the situation when the special offences would follow the procedure set out in the Code. The said section can be said to act as a bridge before embarking upon an investigation either into the offences under the IPC or a special statute. Section 4 reads as under :- 4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt wit....
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....ic provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. 17. Now the Code of Criminal Procedure prescribed only four methods of taking cognizance of an offence whether it be a Magistrate or a Sessions Court is for the time being immaterial. The Code prescribes four methods for taking cognizance upon a complaint, or upon a report of the police officer or where the Magistrate himself comes to know of the commission of offence through some other source and in the case of Sessions Court upon a commitment by the Magistrate. There is no other known or recognized mode of taking cognizance of an offence by a criminal court. Now if Court of special Judge is a criminal court, which atleast was not disputed, and jurisdiction is conferred upon the presiding officer of the Court of special....
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....under the Act are non-cognizable. The offences under sub-section (6) of Section 104 are declared to be non-bailable notwithstanding anything contained in the Cr.P.C and this covers the offence punishable under Section 135 relating to evasion or attempted evasion of duty exceeding 50 lakhs of rupees or prohibited goods notified under Section and also notified under sub-clause (c) of clause (i) of sub-section(1) of Section 135. By virtue of Section 135, the evasion of duty or prohibition, depending upon the category of the goods is punishable with Imprisonment for a term which may extend to 7 years and with fine, in case where the market price of the goods exceed Rs.One crore or the evasion or the attempted evasion of duty exceed 50 lakhs rupees or it is a fraudulent availment or an attempt to avail drawback and if the amount of the drawback or exemption duty exceeds 50 lakhs. In any other case, the offence under Section 135 is punishable with Imprisonment for a term which may extend to three years or with fine or with both. Thus, the offence under the Customs Act are categorized as cognizable/non-cognizable and bailable/nonbailable, notwithstanding anything contained in the Code of ....
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...., then, it is either made bailable or non-bailable under Part-I of Schedule-I of Cr.P.C. Under the Customs Act, though the offence punishable under Section 135 are made cognizable, it is also made bailable. In case of a cognizable offence, which in terms of the Code of Criminal Procedure is an offence in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. A non-cognizable offence in terms of Section 2(l) of the Code of Criminal Procedure means an offence in which a police officer has no authority to arrest without warrant. 17. Code of Criminal Procedure contains a detailed procedure for investigation into cognizable as well as noncognizable offences. Chapter XII of the Code of Criminal Procedure to which we had made a reference above includes Section 154 and 155. The procedure to be followed would thus depend upon whether the offence is cognizable or noncognizable. Part-I of Schedule I of Code of Criminal Procedure catalogue whether the offences are cognizable or non-cognizable and accordingly, whether the investigation would proceed under Section 154 or under Section 155. Under the Customs Ac....
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....ed to exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in-charge of a police station may exercise in a cognizable case. On such an investigation being completed, he would file his report and thereupon the Magistrate to whom the report is forwarded may take cognizance of the offence. This procedure for investigation and of submission of the report to the competent court is not to be found in the Customs Act though the offences are classified into cognizable/non-cognizable. In absence of any procedure being prescribed for investigation of such offences under the special enactment, recourse must necessarily be had to sub-section (2) to Section 4. The necessary sequitur is that in case of an offence which is made cognizable under the Customs Act, the procedure contemplated under Section 154 and in case of an offence which is non-cognizable, the procedure under Section 155 would thus become imperative. Sub-section (2) of Section 4 which acts like an exemplar would govern the manner of investigation under the Custom Act by the provisions contained in the Code of Criminal Procedure in absence of any special provision in ....
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.... other functions would apply in place of the particular provision of the Code, If there is no such contrary provision in other laws, then provisions of the code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in paragraph 16 of the decision in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr., [1984] 2 SCC 500." 14. Nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a court of original jurisdiction. Section 5 of the Code reads thus : "5. Saving. ­ Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 19. In Jeewan Kumar Raut Vs. CBI 2009(7) SCC 526, while determining the application scope and implication of Section 22 of the Transplant....
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....ompletion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. 36 We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940, Raj Kumar Karwal v. Union of India (1990) 2 SCC 409] 20. As per the learned senior counsel Shri Maninder Singh, the judgment of the Apex Court in case of Directorate of Enforcement Vs. Deepak Mahajan & Ors. 1994(3) SCC 440, provides an answer to the controversy in hand, we have extensively referred to the said judgment. The issue before the Apex Court was as regards the applicability of the provisions of Section 167(1) and (2) of the Code, when a person is arrested under Special Act like section 35(1) of FERA or Section 104(1) of Customs A....
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.... arrested under the FERA or Customs Act is presented before him? (4) When the Officer of Enforcement or Customs Officer is not inclined to release the arrestee on bail or otherwise by exercising the power under sub­section (3) of Section 35 of FERA or Section 104 of the Customs Act, a s the case may be, but produces the arrestee before a Magistrate as mandated by sub­section (2) of the abovesaid provisions, will it not be a legal absurdity to say that the Magistrate should forthwith let go the arrestee without ordering detention and also extension of further detention or remand? And (5) Whether the Magistrate has no other alternative except to release that arrested person, produced before him on bail or direct him to be freed unconditionally and whether the Magistrate is completely stripped off his authority to refuse bail and take him to judicial custody? The above questions are some of the legal challenges canvassed before the Full Bench of the High Court, which by a majority opinion, has negatively answered. In the backdrop of Section 167, it observed thus : Section 167 is one of the provisions falling under Chapter XII of the Code commencing from Section 154 a....
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....r or empowered officer under the FERA or Customs Act respectively cannot be said to be 'an accused' or 'accused person' which expressions are used in Section 167 or 'accused of an offence' which expression is used in Article 20(3) of the Constitution and in Sections 25 and 27 of the Evidence Act. In support of this reasoning, some decisions of this Court have been relied upon about which we would deal at the later part of this judgment. 22. The Apex Court in Deepak Mahajan (supra) has re-iterated the view taken earlier that the Officer of Enforcement or a Custom Officer is not a police officer though such officers are vested with the powers of arrest or analogus powers by making reference to the judgment in case of Ilias Vs. Collector of Customs, Madras (1969) 2 SCR 613, It held that the Court had taken a view that the said Officer under the Special Act are not vested with the powers of a police officer qua investigation of an offence under Chapter XII of the Code including power to forward a report under Section 173 of the Code of Criminal Procedure. It however recognized that though the said Officer is not undertaking investigation contemplated under Chapter XII, yet they enjoy ....
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....whether it can be availed of for investigating, inquiring or trying offences under any other law, other than the Indian Penal Code including FERA and Customs Act, etc, and then it proceeds to answer in the following words :- Para 122 and 123 122 Section 4(2) of the Code corresponds to Section 5(2) of the old Code. Section 26(b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26(b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is mentioned in this behalf, may be tried by the High Court or other court by which such offence is shown in the First Schedule to be triable. The combined operation of Sections 4(2) and 26(b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence indicates no special procedure. 123 We shall now consider the applicability of provisions of Section 167(2) of the Code in relation to Section 4(2) to a person arrested under FERA or the Customs Act and produced before a Magistrate. As we h....
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....said case only deals with power or arrest and therefore, according to him, the field is governed by the earlier judgment in case of Deepak Mahajan. 26. We have perused the said judgment and at the outset, we must mention that at the time when the said judgment was delivered, all the offences under the Customs Act 1962 were non-cognizable and the issue before the Apex Court was since they are non-cognizable, whether they are bailable. The issue was answered in the affirmative and it was held that the non-obstante clause contained in section 9A of the Excise Act made it clear that notwithstanding anything contained in the Code of Criminal Procedure, offences under Section 9 would be deemed to be non-cognizable within the meaning of Code of Criminal Procedure. In paragraph nos.41 and 42 of the report, the following observations are relevant for the purpose of our discussion : 41 In our view, the definition of "non­cognizable offence" in Section 2(l) of the Code makes it clear that a non­cognizable offence is an offence for which a police officer has no authority to arrest without warrant. As we have also noticed hereinbefore, the expression "cognizable offence" in Section 2....
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....cise Act, 1944, it is held that offences under Section 135 of the Customs Act, 1962, are bailable and if the person arrested offers bail, he shall be released on bail in accordance with the provisions of sub­Section (3) of Section 104 of the Customs Act, 1962, if not wanted in connection with any other offence. 27. The said judgment in our considered view clearly set out the proposition of law which would intend to propound. An argument was advanced by the learned ASG that the bailability or non-bailability of an offence is not depending upon the offence being cognizable or non-cognizable. He submitted that the bailable offences are those which are made bailable in terms of section 2(a) of Cr.P.C and which are defined as such under the First Schedule and whether it is bailable or not, is to be determined with reference to that Schedule. After dealing with the said section, by making reference to the non-obstante clause contained in sub-section (4) of section 104, it was held that the offence under Section 135 of the Customs Act though noncognizable, they are bailable and this was particularly in light of the wording of the said sub-section i.e. "notwithstanding anything in the....
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....duty and which would constitute offences under Section 132 of the Customs Act, challenged the vires of the provisions of the PMLA Act. The petitioner argued that he intended to apply before the Judicial Magistrate for issuance of directions to the Custom Officer for commencing the investigation into the criminal offences and prosecuting the accused for commission of the offences under the Customs Act. However, according to him, he could not be permitted to set the criminal law into motion by approaching the jurisdictional Magistrate because the Customs Act as well as the PMLA are considered to be complete Code and the provisions as Section 156(3) or Section 155(2) of the Code may not have an application in the field occupying by the special statutes. The exhaustive report deal with the provisions of both the enactments, the existing law on the point, the Division Bench observed thus : 15.13 All the aforesaid judgments in the context of Customs Act, 1962 or Central Excise Act, 1944 are in respect of "non­cognizable"offences under these Acts. After the judgment in Om Prakash (supra) amendments were carried out and now some of the offences specified under these Acts are made cog....
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....reunder as cognizable/non-cognizable, it do not lay down any set of procedure for dealing with the information received by the Custom Officer for proceeding under the provisions of the Act. It also do not define the term "cognizable/non-cognizable" and in absence of such a definition, the terms take the meaning assigned in the Code of Criminal Procedure. In absence of any set of procedure for commencing the so-called 'investigation' in words of the learned senior counsel Shri Maninder Singh, though the statute applies the phrase 'inquiry' for commencing conducting and culminating a valid investigation into the distinct classes of offences, the position that would therefore emerge is to resort to sub-section (2) of Section 4 in relation to an investigation into an offence under the special statute and in absentia of any provision setting out the modalities for commencing, conduct and culmination of investigation. In absence of any overriding provision in the Customs Act, stipulating any contrary procedure, relating to an information received and the manner in which the Custom Officer, who for limited purpose posses the power of a police officer, by virtue of Section 4(2) of the Code....
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....a v.K.K. Ganguly, Asstt Collector of Customs & Ant.,('2) the view expressed in Barkat Ram's(3) case with reference to the old Act has been reaffirmed on the question under consideration and it has been held that under the new Act also the position remains the same. This is what has been said in Dady Adarji Fatakia's(2) case: "For reasons set out in the judgment in Cr. A. 27/67 (Romesh Chand Mehta v. State of West Bengal) and the judgment of this Court in Badku Joti Savant's(4) case, we are of the view that a Customs Officer is under the Act of 1962 not a police officer within the meaning of s. 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by s. 25 of the Indian Evidence Act." The submission of the learned senior counsel appearing for DRI to the effect that the entire provisions of chapter XII of the Cr.P.C stand excluded on the premise of a decision in case of Ramesh Chandra Mehta Vs. Union of India AIR 1970 SC 940. According to us, is not a correct reading of the said decision. The Constitution Bench while rejecting the contention that the power conferred on a custom officer to arrest on....
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....ould permit the authorities to take recourse to Section 166A contained in Chapter XII. 32. Turning back to Section 166A which opens with a non-obstante clause "Notwithstanding anything contained in this Code" are not the only guiding words of the said section but the decisive words of the said section i.e. 'In the course of investigation'. In order to appreciate the contention of Shri Maninder Singh, it would be apposite to reproduce Section 166A of Cr.P.C. Section 166­A Letter of request competent authority for investigation in a country or place outside India. (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person o....
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....66A are overriden. The said non-obstante clause cannot be construed in a manner that it stands in deviation and derogation of all the procedural safeguards contained in Chapter XII including the mode and manner of commencing a valid investigation. The non-obstante clause is a well known legislative device and in olden times, it had the effect of non-obstante aliquo statuto in contrarium (notwithstanding any statute to the contrary). However, in the modern legislation, it has a contextual and limited application. It is a settled position that the impact of the non-obstante clause must be kept in measure by the legislative policy and it has to be limited to the extent it is intended by Parliament and not beyond that. Section 166A cannot be read in isolation and it will have to be read as a part of Chapter XII of the Code to be invoked and applied where the investigation is commenced either under Section 154 or 155 in the manner prescribed therein and it is necessarily an investigation under Chapter XII, which in case of a cognizable offence, commenced with lodging of an information with the police station officer and the police officer following the procedure set out in Section 154 a....