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2022 (8) TMI 375
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.... and erroneously discharged the Respondent. 2(i). To appreciate the matter in its correct perspective it is essential to briefly lay down the facts of the case. The Petitioner lodged a Complaint before the Court of Learned CJM in Prosecution Report Case No.01/2017 under Section 135(1) (a) and (b) and Section 137(1) of the Customs Act, stating that the Petitioner, (Superintendent of Customs, Sherathang Land Customs Station, Gangtok under Siliguri Commissionerate), on receipt of information from the Sikkim Police on 17-11-2015, accompanied by Customs Officers of Gangtok Customs and two witnesses went to the Sadar Police Station, Gangtok at about 14.00 hours. At the Police Station (P.S.) they learned that as per GD Entry No.34, dated 16-11-2015, the team of Police Personnel posted at Sherathang P.S. with the assistance of the Indo Tibetan Border Police (ITBP) stationed at Nathula, acting on a tip off, conducted a body search of traders and a search of vehicles inbound from Rinchenghang, Tibetan Autonomous Region (TAR), China to India at Nathula Gate. On a search of the "Toyota Fortuner", vehicle bearing registration No.SK-01-PA-6314 and its owner-cum-driver, the Respondent, one pie....
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....enlarged on bail on the same date. (ii) On 18-11-2015, the Respondent got himself admitted to the Central Referral Hospital, Manipal, Gangtok, Sikkim and on summons issued under Section 108 of the Customs Act agreed to give his statement after much persuasion but insisted that his son scribe his statement. He retracted his earlier statement of 17-11-2015 to the Customs Authority, where he had admitted that he had brought the gold from Rinchenghang, TAR, China and instead categorically denied its ownership. He stated that on his return from TAR after conducting business the Police Officers of Sherathang P.S. intercepted his vehicle at Nathula Gate and checked it from where they allegedly recovered the said gold bar, of which he was unaware and alleged that it had been planted in his vehicle and that he was falsely implicated. (iii) A Show-cause Notice was issued to the Respondent dated 09-05-2016 and the competent Authority passed the Adjudication Order on 19-10-2016, ordering confiscation of the "Toyota Fortuner‟ with the option to the owner to redeem his vehicle on payment of redemption fine of Rs.9,25,000/- (Rupees nine lakhs twenty five thousand) only. Penalty of Rs.....
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....shed by the Petitioner to frame charges against the Respondent. The Learned Trial Court erroneously concluded that Customs Officials were present at the spot who failed to take steps as envisaged by Section 102 of the Customs Act. That, the Learned Trial Court doubted the Prosecution case on grounds that the Petitioner himself was not present at the spot when the alleged search and seizure took place. It was further argued that although SI Roshan Gurung, Petitioner's Witness turned hostile but under cross-examination he admitted that the number inscribed in the gold bar, M.O.I, matched the details recorded in the Seizure Memo Exhibit 2. (ii) It was next contended that the Respondent paid the penalty during the Adjudication Proceedings as ordered and did not assail the Adjudication Order which is revelatory of his guilt. Consequently, the Learned Trial Court despite the prima facie case against the Respondent perversely arrived at a wrong finding and discharged the Respondent. To buttress his submissions, reliance was placed on Mohamed Iqbal S/o of Chand Mohamed Qureshi vs. K. R. Sehgal, Superintendent of Customs and Another 2002 SCC Online Guj 551, Basudev Das vs. Union of India....
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.... the Respondent and hence the Petition be dismissed. 5(i). Having heard Learned Counsel for the parties at length and considered all materials furnished before this Court, in the first instance it may relevantly be noticed that the matter is under Section 397 of the Cr.P.C viz; Criminal Revision. The said Section is extracted below for convenient reference; "397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record." It is now well settled by a plethora of Judgments of the Hon‟ble Supreme Court that the Court exercising revisional powers under Section 397 ....
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....instituted otherwise than on a Police report, when the accused appears, or is brought before the Magistrate under Section 244(1) of the Cr.P.C, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses under Section 244(2) of the Cr.P.C on the application by prosecution. All this evidence is evidence before charge. It is after all this evidence is taken, then the Magistrate has to consider under Section 245(1) of the Cr.P.C whether any case against the accused is made out, which, if unrebutted, would warrant his conviction. If the Magistrate concludes that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused the Magistrate would frame a charge under Section 246(1) of the Cr.P.C. That, the Complainant then gets a second opportunity to lead evidence in support of the charge unlike in a Warrant trial on Police report, where there is only one opportunity. It has been elucidated in the Ratio supra that in a Warrant trial instituted otherwise....
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....Section 244 has been taken. It was however clarified in the Ratio supra that; Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed. (ii) Bearing the above pronouncement in mind, it is essential to consider what the Hon‟ble Supreme Court observed in Mauvin Godinho vs. State of Goa (2018) 3 SCC 358, as to what a prima facie case is. It was inter alia held that although the application of this standard depends on the facts and circumstances in each case, a prima facie case against the accused is said to be made out when the probative value of evidence on all the essential elements in the charge taken as a whole is such that, it is sufficient to induce the Court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable, t....
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.... (ii) In Paragraph 13 of the impugned Order, reliance was placed on D.N. Anerao vs. Maheshkumar Kantilal Soni and Others (1985) 2 GLR 1370, wherein the Hon‟ble High Court of Gujarat in Paragraph 3 of its Judgment observed inter alia as follows; "3. ..................... If there is some evidence on record which, if accepted, would warrant a conviction of the accused, the accused cannot be discharged. The question whether particular evidence should be accepted or not arises only at the end of the trial and not at the stage of considering whether the accused should be discharged............................." (emphasis supplied) (iii) In Paragraph 16 of the impugned Order reliance was placed on Radha vs. Raju 2003(3) KLT 1046, wherein Hon‟ble Kerala High Court in Paragraph 13, 14 and 16 of its Judgment inter alia observed that; "13. ............... In a private complaint alleging commission of a warrant offence under Section 245 Cr.P.C., after the enquiry under Section 244 Cr.P.C., a criminal court is expected under Section 245(1) only to consider whether such a case has been made out "which, if unrebutted, would warrant a conviction." The quality o....
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....ses by their evidence have at this stage indicated the possession of the gold bar by the Respondent allegedly brought from Richenghang, TAR, through Nathula Gate on the Indian side. He did not have necessary documentary evidence to indicate legitimate possession of the article. Gold is not in the list of articles which can be imported and brought from TAR to Sikkim, in view of the various Notifications of the Ministry of Finance, Department of Revenue, Government of India, relied on by the Petitioner. The article was tested and found to be gold of 24 carats valued at Rs.51,00,000/- (Rupees fifty one lakhs) only at the time of seizure. In the teeth of such materials which made out a prima facie case the Learned Trial Court has proceeded to discharge the Respondent, while evidently erroneously assuming that Sherathang where the Land Customs Office is located and Officers of Gazetted Rank are said to be posted and Nathula Gate where the search and seizure took place are one and the same place. The Learned Trial Court opined that there is a Land Customs Station at Sherathang which shows that Gazetted Customs Officers would be stationed there, that in such a circumstance Section 102 of ....