TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 460
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....26th March, 2019 issued by the Joint Commissioner AIU NSCBI Airport Kolkata. B) for an order prohibiting the customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 against the petitioners in connection to offence covered under complaint dated 22nd March, 2019 filed by the Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata which was entered into the general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019. 2. The facts are substantially undisputed and may be stated as follows: The Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata filed a complaint on 22nd March, 2019 at Airport Police Station and the complaint was entered into a general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019. Extract copy of NSCBI, Airport Police Station GD Entry 800 dated 22nd March, 2019 at 23:15 hours is reproduced below: "1. At the marginally noted time one Mr. S. K. Biswas, Assistant Commissioner of Customs, Air Intelligence Unit, NSCBI Airport, Kolkata - 700 052 called at the P.S. and submitted a written information alleging allegations under Section 186/503 of Indian Penal Code read ....
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....r identity and power. She then informed about her location to somebody over the phone. 3. After sometime, some Police personnel from NACBI AirportPolice Station under Bidhannagar Police Commissionerate arrived at the International Arrival Hall and informed that one of the lady passengers happened to be wife of M.P. Shri Abhishek Banerjee and made request to release these passengers immediately without any examination of their baggage. But their requests were not adhered to and they were informed that until and unless the examination of the baggages are over by the concerned officer, the passengers would not be released. One lady Police Constable came to the spot and informed the Customs officers that one of the lady passengers was the wife of the nephew of the Chief Minister of West Bengal. During this time, more Police officers came and asked the Customs officers to allow both the ladies to go immediately, without checking their baggage, otherwise they may face problems. However, despite this pressure, the second suspected bag was opened at Counter No. 4 in which two sets of Jewellery (Kundan) were found. 4. Enquiries revealed that Flight TG-313 had landed at 12:40 A.M. on 16.....
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....s offices attended the meeting, as directed by the Commissioner of Customs (Airport), Kolkata which was communicated through Shri S. K. Biswas, Assistant Commissioner of Customs, in Charge of AIU and Admin: 1. Rajesh Kumar Tiwary, Supdt. of Customs, AIU 2. Akhilesh Kumar, Supdt. of Customs, AIU, 3. Rohit Kumar, Supdt. of Customs, AIU, 4. Gitesh Kumar, Supdt. of Customs, Batch-A (Uninformedofficer) 5. Ranjan Bhattacharyya, Preventive Officer, Customs,Batch-A, (Uniformed officer) 6. Koshalesh Singh, Supdt. of Customs, AIU The following Police Officers were present at the meeting: * Shri Arup Roy Chowdhury (who was in White uniform) * Shri Sudip Dey ( used to do protocol duties at Airport and was in civil dress) * Shri Surajit Dey (ACP, who was in Khaki uniform) 8. Shri Arup Roy Chowdhury, one of the police personnel present in the meeting, informed that they were in receipt of one complaint against Customs Officials, from one lady who had arrived from Thailand in the early morning of 16.03.2019, alleging misbehavior, harassment, undue detention and extortion of money for clearance of her luggage. He specifically enquired about three officers of Customs namely, S....
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...., this would not be justification for you not to register the present FIR, while manifestly make out cognizable offence. This is also, without prejudice, of our right to pray for other relief regarding an impartial investigation before an appropriate judicial forum". On 23rd March, 2019, the jurisdictional police authorities made a prayer before the Ld. Additional Chief Judicial Magistrate, Barrackpore, North 24-Parganas for investigating into offences in respect of the complaint dated 22nd March, 2019. The Ld. Magistrate passed an order on 23rd March, 2019 permitting the police authorities to investigate the offence under Section 155 of the Code of Criminal Procedure. But no report in the form of complaint was filed by the police authorities before the learned Magistrate as investigation into the commission of non-cognizable offence could not be completed by the police authorities. 3. After filing complaint before the police, the Joint Commissioner of Customs, AIU, NSCBI, Airport, Kolkata being the respondent no. 3 in the instant application issued summons dated 26th March, 2019 to both the petitioners and the summons are reproduced below: GOVERNMENT OF INDIA OFFICE OF THE PRI....
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....ence under Section 174 & 175 of the Indian Penal Code, 1860. Please note that giving false evidence in these proceeding is an offence punishable under Section 193 of the Indian Penal Code, 1860. Place: Kolkata. Date : 26.03.2019 Joint Commissioner AIU, NSCBI, Airport, Kolkata 4. Mr. Majumdar Ld. Additional Advocate General, appearing for the state narrated the undisputed facts that the Customs lodged a written information to the jurisdictional police station on March 22, 2019. The written information discloses commission of non-cognizable offences under Section 133 of the Customs Act, 1962 read with Section 186 and 503 IPC. The said written information was entered into the General Diary and numbered as NSCBI Airport PS G.D.E No. 800 dated 22/3/2019 (P.33).On March 23, 2019 and the jurisdictional police authorities made a prayer before the Ld. Magistrate for investigating into offences. The Ld. Magistrate passed an order permitting the police authorites to investigate into the offence and the investigation is in progress. Statements of several witnesses u/s. 161 of Cr. P.C have been recorded. CCTV footage has been obtained from the airport authorities but suddenly on March ....
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.... passed by the Ld. Magistrate, the police authorities are investigating into the offence. The Customs authorities cannot, thereafter, take recourse to Section 137 of the Customs Act, 1962 read with the provisions contained in Chapter XV of the Cr. P.C. The combined operation of Sections 4(2) and Section 26(b) of 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. Since the police authorities are vested with the jurisdiction to investigate in view of the order passed by the Ld. Magistrate, the Customs authorities are denuded of their authority to make enquiry in connection with the offence under Section 133 of the Customs Act, 1962. 5. Mr. Sujit Ghosh, Ld. Counsel appears for the petitioner Menka Gambhir in W. P. No. 7865(W) of 2019 and Mr. S.N. Mukherjee, Ld. Senior Counsel appears for the petitioner Rujira Naroola in W. P. No. 7489 (W) of 2019. 6. Mr. S.N. Mukherjee, Ld. Senior Counsel for the petitioner, Rujira Naroola raises two questions namely: a) The summons issued under Section 108 of Customs Act, 1962 was beyond jurisd....
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....ch police investigation is pending, cannot cause the magistrate to take cognisance of the offence under Section 133 by filing a complaint under Section 200 Cr.P.C. and as scuh the proceeding shall be required to be stayed till such time as the investigation is being conducted by the police. Further, it is not the case of the Customs in the affidavit-inopposition that they comtemplate filing a complaint under Section 200 Cr.P.C. in addition to the report filed before the police. In fact at paragraph 6 of the affidavit in opposition, it is admitted that the investigation against the petitioner and her sister is confined to Section 133 of the Act for deciding on penalty under Section 117 of the Customs Act, 1962. Therfore, by their acts and deeds the customs has abdicated the power to investigate to the police . Hence, the customs cannot file a separate complaint under Section 200 of the CrPC. To bolster this argument the petitioner relies upon Section 2(r) and Explanation to Section 2(d) of the CrPC. Section 2 (r) of Cr. P.C. defines police report as "In this Code, unless the context otherwise requires 'a report forwarded by a police officer to a Magistrate under sub-section (2) of ....
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....penalty (fine) is provided for. Section 133 contemplates both imprisonment and a monetary fine. The term "fine", "penalty" and "civil penalty' are all one and the same. "Penalty" means punishment imposed for breach of a law, rule, or contract. Further, and in any event, there cannot be two monetary penalties for same offence. Therefore, Section 133 by itself imposes a penalty for contravention and Section 117 cannot be attracted for contravention of Section 133. Section 117 deals with contravention of any provision or failure to comply with any provision. Section 133 is a penal provision which cannot be contravened. Contravention can only happen when there is a "duty cast" or an "obligation". However, the language of Section 133 does not prescribe any such obligation/duty nor can there be any contravention of the provision. It is applicable only where no penalty is prescribed in such provision of the Act. Assuming without admitting that in addition to Section 133, customs can impose a penalty under Section 117, even then such a levy of penalty could take place only when there has been an adjudication of whether the offence under Section 133 has been committed. Mr. Mukherjee, Ld. ....
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.... contemplated under Section 108 and such a senior cannot partly exercise certain aspects of 108 leaving the rest upon other officer. In other words, such summons could have been issued by an officer who was superior in rank to Manish Chandra. Further, Section 108 (4) clearly mandates that proceedings under this Section are judicial in nature and therefore no question arises of issuance of summons being a mere administrative act that need not comply with statute. Issuance of summons is not merely an administrative act and is a quasi-judicial act by itself. Mr. Mukherjee, Ld. Senior Counsel further submits that in order to bolster their case that the Summons is concerning penalty under Section 117 of the Act, the Customs has falsely relied on Section 26 of the General Clauses Act. This reliance is completely misplaced and illegal. Section 26 of General Clauses Act states that when the act constitutes an offence under two or more enactments, then it can be proceeded with simultaneously. However, Sections 117 and 133 are of the same Act and therefore such argument hold no water. Similarly, the customs has erroneously relied on Section 4(2) of the Cr. P.C. There is no doubt that the cu....
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....ion. In any event, a writ of Mandamus and a consequential relief of Certiorari and Prohibition will lie only to enforce an established right and not to establish the right. There being two contested and irreconcilable version of an event (as apparent in the information to the Police given both by the Petitioner and Respondent herein). The very indeterminate nature of the case shows that even for this reason, the proceedings before Hon'ble Court are wholly premature and are quite clearly an attempt to pre-empt the outcome of one case and/or foreclose the other. According to the Ld. Additional Solicitor General, issuance of summons is purely an administrative act and is neither quasi-legislative nor quasi-judicial. The summons, by themselves even while "affecting" the person summoned do not "decide" any issue and are merely investigatory in nature to take another administrative action. The satisfaction is subjective as long as there are prima facie grounds satisfying the need to issue summons. The involvement of senior custom officers in the process of invocation of Section 108 of the Customs Act, 1962 to assume in themselves the jurisdiction and proceeded to complete what had been ....
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....imentary part of a single governmental mechanism which the co-existence of the Customs Act (Central Enactment) and policing (in the realm of State Government) entail. Moreover, law takes no notice of ranks and status and mere proximity with those in position of authority cannot vests privileges unavailable to the ordinary men and women of this country far less being approved by a Judicial order. Reliance has been placed on State (NCT of Delhi) vs. Union of India and Another (2018) 8 SCC 501 @ Pg. 592. The summons were issued in relation to Section 133 of The Customs Act, 1962. The expression should be understood in contradistinction to "into". "In connection to", shows that it may include matters both prior to as well as subsequent to or consequent upon as long as they relate to the principal thing. The obstruction having aborted the inquiry, the same was initiated under the summons and merely because it was subsequent to the obstruction would not make it in any way unconnected to the same so as to attract any legal inhibition about the process. The expression 'in connection with' merely requires some "nexus" or "link' and where such nexus or link, no matter how loose exist, every....
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....w) and correctly referring only the said offences under the general law to investigation by the Police, the Customs Authorities themselves issued the summons to make an inquiry into the very same offences themselves. The summons, obviously being issued "in connection with" would refer to other matters ancillary and incidental to the obstruction and hence relate to matters of penalty and also offence which under the Customs Act may be attracted to the incident. Moreover, a mere reference to Section 133 of the Customs Act, 1962 in the information would not mean that the police would investigate the same due to the reason that an offence under Section 133 of the Customs Act, 1962 can only culminate into a complaint under Section 137 of the Customs Act, 1962 in which the police has no role. In making the submission aforesaid, the argument does not travel beyond the summons and is on the contrary relatable directly to it and arises from the very terms in which the same has been issued. Reliance on Article 20(2) of The Constitution of India by the petitioners are also utterly misconceived as the Customs Authorities are not Judicial Tribunals and adjudging of confiscation, increased rate....
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....ficers could not be involved in the issuance of the summons, i.e. (i) Manish Chandra (Commissioner of Customs) who has formed an opinion and considers its necessary to summon the petitioner; (ii) Rahul Mahato (Joint Commissioner of Customs) who has issued the summons under dictation/direction; and (iii) Additional Commissioner of Customs (Airport & Admin), Customs House before whom the petitioner has been summoned. b) Even if a senior officer takes up the responsibility to issue such summons, he has to perform all acts himself as contemplated under Section 108 and such a senior cannot partly exercise certain aspects of 108 leaving the rest upon other officers. c) Section 5(2) does not allow an officer, who having taken over the powers of his subordinate (to issue summons), thereafter, abdicates or delegates such power to a third officer. In the instant case, the superior officer had taken over the power to issue summons, having formed the necessary opinion to carry out investigation, then he could not have delegated the investigation per se to a third person who is a subordinate officer. d) It is trite in law that when a Statute provides that power must be exercised ....
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.... established principle of law that in matters and proceedings that are quasi-judicial in nature, subordinate authority cannot act as per dictation of their superiors, unlike what has been sought to be done illegally in the present case. Mr. Ghosh while arguing his second question submits that customs must "cease and desist" from making any parallel enquiry once they have filed the information/complaint on 22nd March, 2019 and after the police has acted upon the same by taking magisterial approval under section 155(3) code of criminal procedure, 1973. The Customs cannot investigate any further for the reasons that, after having formed their opinion (by conducting an internal enquiry) and having come to a conclusion that there is "no iota of doubt" that the petitioner has violated the provisions of Section 133, they have approached the police by filing a written information. Once that process has been commenced and approval of the Magistrate obtained, then by virtue of Section 138 of the Customs Act, the Customs Authorities must now cease and desist from making a parallel enquiry. From a perusal of the police information/complaint and the internal documents of the customs, the compl....
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....y exercised the option of magisterial intervention, for the following reasons: (a) Section 138 of the Act states that an offence under Section 133 must be adjudicated by the Magistrate. (b) Section 137 of the Act states that no court can take cognizance of an offence under Section 133 of the Act without the previous sanction of either the Principal Commissioner of Customs or Commissioner of Customs. From the conduct of the customs and the documents annexed to their affidavit in opposition it is unequivocally clear that prior to filing the police information/complaint the commissioner of customs had provided his sanction to seek magisterial intervention by approaching the police and therefore the Customs had already taken steps under Section 133 of the Act. (c) Section 108 of the Act contemplates inquiry by the customs by collecting evidence from the summoned, thereafter, an opinion is formed by the customs and thereafter prosecution is launched. In the present case, the very fact that the sanction from the Commissioner of Customs was obtained before the Customs approached the Police, goes to show that the very act of approaching the police was for the purpose of launching the....
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....d. In any event Section 117 is not applicable for the following reasons: i. Section 117 deals with contravention of any provision or failure to comply with any provision. Section 133 is a penal provision which cannot be contravened. Contravention can only happen when there is a "duty cast' or an "obligation". However, Section 133 language does not prescribe any such obligation/duty nor can there be any contravention of the provision. It is applicable only where no penalty is prescribed in such provision of the Act. ii. The authority was never precluded from initially writing other provisions of law and alleging such contravention by the petitioner. However, no such allegation of Section 117 exists. The summon issued under Section 108 for an offence under Section 133, cannot be expanded for making roving enquiry. Roving enquires in case of summons etc. are impermissible in law. In order to bolster their case that the summons issued pertained to imposition of penalty under Section 117 of the Act, Customs has erroneously relied on Section 26 of the General Clauses Act. Section 26 of General Clauses Act states that when the act constitutes an offence under two or more enactments ....
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....n met, in as much as a formal documentation i.e. information has been filed by the Customs with the Police, who by virtue of Section 155(2) of the CRPC has obtained magisterial permission to initiate investigation and on completion of the entire procedure, it may lead to prosecution in court. Further, as held by the Supreme Court, in the case of Superintendent of Police, CBI & Ors. Vs. Tapan Kumar Singh reported in (2003) 6 SCC 175, even a GD entry can also be treated as an FIR if cognisable offence is present. Therefore, this in itself goes to establish that if GD entry is good enough a document to be treated as an FIR and an FIR makes a person accused, then the route adopted in the present case i.e. filing of information under Section 155 (i.e. through GD entry) can also make a person an accused, regardless of the fact that the complaints/allegations made therein are non-cognisable in nature. According to the learned, summons can only be issued to a person with respect to an ongoing inquiry being conducted under Customs Act. However, in the instant case it is an admitted fact that on conclusion of their enquiry and on finding that there is no iota of doubt that the petitioner ha....
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....s drill prescribed therein, the very action of the respondent customs is wholly without jurisdiction. The illegal assumption of jurisdiction is also hit large by the fact that parallel investigation which is sought to be initiated contrary to express provision of Section 108 of the Customs Act and also in contravention of Article 20(3) of the Constitution of India. 9. Heard all the parties. Perused of the writ petition, affidavit-in-opposition and affidavit-in-reply. 10. The Commissioner of Customs on 26th March, 2019 prima facie formed his opinion to enquire and seek presence of the petitioners in connection to an incident that occurred on the night of 15/16th March, 2019 and sought aid in enquiry directing Joint/Additional Commissioner of Customs, AIU, NSCBI, Airport, Kolkata to issue summons to the petitioners and the petitioners were directed to appear before Additional Commissioner of Customs (Airport Administration) on 8th April, 2019 for giving evidence and/or produces documents or things in relation to the incident which occurred on 15th /16th March, 2019. 11. Two contested and irreconcilable version of an event was placed before me which occurred on the night of 15th / ....