Crl.R.C.No.

372 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 28.06.2022

Pronounced on : 14.07.2022

CORAM :

THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.No.372 of 2022

The Assistant Commissioner of Customs,

Prosecution Unit,
Air Cargo Commissionerate,
New Custom House,
Chennai – 600 016. ... Petitioner

Versus

S.Ganesan ... Respondent

Prayer: Criminal Revision Petition is filed under Section 397 of

Criminal Procedure Code, to set aside the order dated 20.04.2021 in
Crl.M.P.No.55 of 2020 in R.R.No.8 of 2015 in F.No.DRI/CZU/VII/48/Enq.-
01/Int-11/2015, on the file of the Learned Judicial Magistrate, Special Court
for Customs, Alandur, for the reason stated above.

For Petitioner : Mr. N.P.Kumar,

Special Public Prosecutor,
Central Government.

For Respondent : Mr. S.Ganesan

(Party-in-Person)

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ORDER

This Criminal Revision is filed by the Assistant Commissioner of

Customs, Prosecution Unit, Air Cargo Commissionerate, New Custom

House, Chennai – 600 016, against the order of the Learned Judicial

Magistrate, Special Court for Customs, Alandur, dated 20.04.2021 in

Crl.M.P.No.55 of 2020, in and by which, the application filed by the

petitioner, in which, the respondent is the first accused in un-numbered

C.C.No...... of 2019, arising out of in R.R.No.8 of 2015 in F.No.DRI/

CZU/VII/48/Enq.-01/Int-11/2015, in O.S.No.08/2017-INT-AIR, was

allowed and thereby, dropping the proceedings against the accused

No.1/respondent, in this case.

2.For the sake of convenience, the petitioner is referred to as the

Complainant and the respondent is referred to as Accused No. 1, as per their

ranks arrayed before the Court below.

3.The gist of the allegations made in the complaint is that the third

and fourth accused, in the guise of importing electronic goods viz., mobile

phones etc., had actually smuggled gold bars, inside the cartons and the first

accused, who is running a security agency, authorized by the Airports

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Authority of India, with full knowledge of the said illegality, through his

employees viz., the second accused/K.Francis and the fifth

accused/P.Karunanithi, had help in bringing the gold bars in the cover of

mobile phones from the Cargo shed inside the Airport out of the customs

frontier and thus all the accused have colluded, conspired and committed

the offenses punishable under Section 132, 135 of Customs Act, 1962 and

therefore, the private complaint was filed.

4.When the private complaint was adjourned to be listed under the

caption as to be “check and call on”, even before recording of the sworn

statement and the complaint was taken on file and at the diary number stage

itself, the Accused No. 1 had filed an application for dropping proceedings

and the same was allowed, against which the present revision is filed. This

complaint was presented before the Special Court for Customs, on

31.12.2019 and it was adjourned as “check and call on” on 04.01.2020.

Again, on 04.01.2020, an endorsement was made that back file from the

Judicial Magistrate has not reached and it is adjourned for call on, on

13.01.2020. From then onwards, the case has been adjourned under the

same caption from time to time. On 06.11.2020, the accused No.1 appeared

before the Court and filed the present petition at this stage.

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5.The contentions raised by the Accused No.1 in the above

application is that the Hon'ble Supreme Court of India, in Radheshyam

Kejriwal Vs. State of West Bengal and Anr.1, has held that once the

Appellate Authority decided the case on merits, in respect of particular

charge, the prosecution in respect of self-same charge cannot be thereafter

maintainable as against the accused person. The Customs Department itself

has incorporated the said ruling of the Hon'ble Supreme Court through its

various circulars and the same has been followed.

6.In this case, there are two offenses in complaint. The first

offense is under Section 132 of the Customs Act. The same punishes

making false declaration for evading duty. When the matter in respect of

instant transaction went before the Appellate Authority, by an order dated

11.09.2017, bearing No.F.No.DRI/ CZU/VII/48/Enq.-01/Int-11/2015, in

O.S.No.08/2017-INT -AIR, the Learned Appellate Authority had held that

as far as the allegations against the Accused No. 1 is concerned, he is not an

importer and there was no any omission or commission on the part of the

accused/respondent in making mis-declaration and he cannot be penalized

for such mis-declaration or evasion of duty and therefore, held in paragraph

1 (2011)3 SCC 581

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No.18.5 that the penalty imposed under Section 114 (AA) of the Customs

Act is unsustainable.

7.Section 114(AA) imposes penalty and Section 132 punishes

the person on prosecution in respect of the same act of false declaration.

Therefore, once the penalty imposed under Section 114(AA) of the Customs

Act is found to be not leviable on merits, the prosecution cannot be

launched for the offense under Section 132 of the Customs Act.

8.Similarly, the petitioner had contended that for the offense

under Section 135(1)(b), which is alleged against the accused that he was

concerned with carrying, removing, concealing or dealing with the goods,

which he had reason to believe to be improper and his confiscation is

concerned, the corresponding provision for levy of penalty Section 112(b)

will follow. The Appellate Authority by its finding in paragraph No.19.1 of

the Judgment has again held that the penalty under Section 112(b) is

unsustainable as against the accused/appellant and as a matter of fact,

ordered that the penalty should be imposed as under Section 112(a).

Therefore, this penalty has also been found to be unsustainable on merit by

the Appellate Authority and the accused cannot be prosecuted for the

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offense under Section 135(1)(b) also.

9.Therefore, the penalty for both the offenses alleged as against

the Accused No. 1 having been dealt with on merits by the Appellate

Authority and having become the final, by virtue of the dictum of the

Hon'ble Supreme Court of India, in Radheshyam Kejriwal's case (cited

supra), the charge against the accused is groundless and therefore, he sought

for dropping all further proceedings.

10.Apart from the above grounds, it is also the further case of the

Accused No. 1 that for the purpose of prosecution, sanction has been

obtained only from the Commissioner and as per circulars, since the case is

investigated by the Directorate of Revenue Intelligence, sanction has to be

obtained from the Director General also and therefore, for want of sanction,

as per the circulars of the department, the proceedings are liable to be

dropped.

11.This apart, it is further contention of the Accused No. 1 that

the entire prosecution is launched against the accused only based on

retracted confession and there is evidence on record to demonstrate duress

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at the time of extracting confession. Therefore, there is no material at all to

proceed the case against the Accused No. 1 and therefore, the further

proceedings should be dropped.

12.The learned Magistrate considered the case of the Accused

No.1 and found that since for an identical allegations Quasi Judicial

proceedings have been initiated and the order has attained finality, the

prosecution is unsustainable. Further, the approval of the Chief

Commissioner or the Principal Chief Commissioner of Directorate of

Revenue Intelligence for launching prosecution was also not obtained and

the circular No.27/2015 is applicable to this case. Therefore, the Trial Court

stated that prosecution should have been withdrawn and upon holding the

Judgments being relied upon by the Accused No.1 applicable to the case on

hand, held that circulars and guidelines are binding on the complainant and

dropped the proceedings against the Accused No.1. Aggrieved by the same,

the present revision is filed by the complainant.

13.The contentions raised in the revision by the petitioner is that

the application for dropping the proceedings is pre-mature, as the case is yet

to be taken cognizance by the learned Magistrate and the accused has no

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hearing or has got no say, during the pre-cognizance stage and therefore, the

very entertaining of the application is erroneous in law. Secondly, as far as

the circulars of the department is concerned, their contention is that they are

intra-department circulars which are binding only on the complainant but

cannot be taken advantage of by the accused. As far as the prosecution is

concerned, the prior sanction is required as per Section 137 of the Customs

Act, only from the Commissioner. No circular is violated by the petitioner

in this case. As a matter of fact, the petitioner had obtained a prior approval

of DGRI also, in this case.

14.As far as the contentions based on the Judgment of the Hon'ble

Supreme Court of India, in Radheshyam Kejiriwal's case( cited supra), the

learned counsel for the complainant would submit that atleast in respect of

the allegation under Section 135(1)(b), the findings of the Appellate

Authority was based on the fact that the confiscation proceedings were not

initiated in respect of earlier batches and therefore, there was no finding on

merits and thus, the decision would not bind the Criminal Court. Therefore,

the prima facie offense under Section 135(1)(b) is made out. Since the

Accused No. 1 through his accomplices have helped in the smuggling of the

gold bars and the Appellate Authority as well as this Court in the Civil

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Miscellaneous Appeal preferred before this Court have not upturned the

findings regarding the said omissions and commissions and as a matter of

fact the said delinquencies have been confirmed. Therefore, the learned

Magistrate erred in dropping the proceedings against the Accused No.1.

15.I have considered the rival submissions made on behalf of both

sides and before deciding to consider the question as to whether the accused

had made out a case to drop all further proceedings against him, it is

necessary to consider the preliminary objection made on behalf of the

petitioner, in this revision as to whether the application filed by the accused,

even before the complaint is taken on file and even before the sworn

statement is recorded is maintainable.

16.The offense complained is punishable with a maximum

punishment of Seven years and therefore, this is a warrant case otherwise

than by police report. Therfore, Section 245 Cr.P.C is the relevant provision

applicable. Discharge under Section 245(1) is after recording of evidence ,

if there is no ground to proceed. Only under Section 245(2), the accused

can be discharged at any state prior to the same. It is necessary to extract the

Section 245(2) of Cr.P.C., which reads as follows:-

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“245(2) Nothing in this section shall be

deemed to prevent a Magistrate from discharging the
accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he
considers the charge to be groundless. ”

17.Thus, if the charge is groundless then the learned Magistrate is

empowered to discharge the Accused under Section 245(2) of Cr.P.C. It is

in this context, this case begs the question that the phrase “at any previous

stage of case” whether would amount even at the presentation and “check

and call on” stage of the complaint, that is, when the complaint is neither

taken on file, nor the proceedings under Section 200 of the Code of

Criminal Procedure has taken place by examination of the complainant on

oath and or taking cognizance of offenses.

18.In this regard, the meaning of phrase “at any previous stage of

the case”, came to be examined, by the Hon'ble Supreme Court of India, in

Ajoy Kumar Ghose v. State of Jharkhand2, and it is useful to extract the

entire paragraphs Nos.26 to 31, which reads as hereunder:-

“26. It will be better to see what is that

“previous stage”. The previous stage would
2 (2009) 14 SCC 115

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obviously be before the evidence of the prosecution

under Section 244(1) CrPC is completed or any stage
prior to that. Such stages would be under Section 200
CrPC to Section 204 CrPC. Under Section 200, after
taking cognizance, the Magistrate examines the
complainant or such other witnesses, who are present.
Such examination of the complainant and his
witnesses is not necessary, where the complaint has
been made by a public servant in discharge of his
official duties or where a court has made the
complaint or further, if the Magistrate makes over the
case for inquiry or trial to another Magistrate under
Section 192 CrPC. Under Section 201 CrPC, if the
Magistrate is not competent to take the cognizance of
the case, he would return the complaint for
presentation to the proper court or direct the
complainant to a proper court.
27. Section 202 CrPC deals with the
postponement of issue of process. Under sub-section
(1), he may direct the investigation to be made by the
police officer or by such other person, as he thinks fit,
for the purpose of deciding whether or not there is
sufficient ground for proceeding. Under Section
202(1)(a) CrPC, the Magistrate cannot give such a
direction for such an investigation, where he finds
that offence complained of is triable exclusively by the

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Court of Session. Under Section 202(1)(b) CrPC, no

such direction can be given where the complaint has
been made by the court.
28. Under Section 203 CrPC, the
Magistrate, after recording the statements on oath of
the complainant and of the witnesses or the result of
the inquiry or investigation ordered under Section
202 CrPC, can dismiss the complaint if he finds that
there is no sufficient ground for proceeding.
29. On the other hand, if the Magistrate
comes to the conclusion that there is sufficient ground
for proceeding, he can issue the process under Section
204 CrPC. He can issue summons for the attendance
of the accused and in a warrant case, he may issue a
warrant, or if he thinks fit, a summons, for securing
the attendance of the accused. Sub-sections (2), (3),
(4) and (5) of Section 204 CrPC are not relevant for
our purpose. It is in fact here, that the previous stage
referred to under Section 245 CrPC normally comes
to an end, because the next stage is only the
appearance of the accused before the Magistrate in a
warrant case under Section 244 CrPC.
30. Under Section 244, on the appearance
of the accused, the Magistrate proceeds to hear the
prosecution and take all such evidence, as may be
produced in support of the prosecution. He may, at

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that stage, even issue summons to any of the witnesses

on the application made by the prosecution.
Thereafter comes the stage of Section 245(1) CrPC,
where the Magistrate takes up the task of considering
on all the evidence taken under Section 244(1) CrPC,
and if he comes to the conclusion that no case against
the accused has been made out, which, if unrebutted,
would warrant the conviction of the accused, the
Magistrate proceeds to discharge him.
31. The situation under Section 245(2)
CrPC, however, is different, as has already been
pointed out earlier. The Magistrate thereunder has
the power to discharge the accused at any previous
stage of the case. We have already shown earlier that
that previous stage could be from Sections 200 to
204 CrPC and till the completion of the evidence of
prosecution under Section 244 CrPC. Thus, the
Magistrate can discharge the accused even when the
accused appears, in pursuance of the summons or a
warrant and even before the evidence is led under
Section 244 CrPC, and makes an application for
discharge.” (Empahsis Supplied)

19.Therefore, it is clear that previous stage could be from the

stage of Section 200 of Cr.P.C., whereby the learned Magistrate upon taking

cognizance, is entitled, either to straight away issue process or conduct an

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enquiry by postponing the issue of process under Section 202 of Cr.P.C.

Thereafter, either he can issue process or dismiss the complaint under

Section 203 of Cr.P.C., In this regard, the Hon'ble Supreme Court of India,

in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel 3,

had an occasion to consider the question as to when the learned Magistrate

can be said to have been taken cognizance of the offense after considering

the entire law in the subject. The Hon'ble Supreme Court, has held in that

case, in paragraph No.34, which reads as follows:-

“34. The word “cognizance” occurring in

various sections in the Code is a word of wide import.
It embraces within itself all powers and authority in
exercise of jurisdiction and taking of authoritative
notice of the allegations made in the complaint or a
police report or any information received that an
offence has been committed. In the context of Sections
200, 202 and 203, the expression “taking
cognizance” has been used in the sense of taking
notice of the complaint or the first information report
or the information that an offence has been committed
on application of judicial mind. It does not
necessarily mean issuance of process. ”
(Emphasis supplied)

3 (2012) 10 SCC 517

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20.Therefore, depending on the circumstances of the case, it can

be held that even before the issue of process or examining the sworn

statement of the complainant, there could be cognizance in a particular case.

The only requirement is that the learned Magistrate should have taken

authoritative notice of the allegations made in the complaint. In this case,

upon presentation of the complaint, without taking any authoritative notice,

the matter was simply adjourned to another day with the endorsement

“check and call on”. Neither the complaint is numbered nor the sworn

statement is recorded. This is the stage, in which the form of the complaint

is being looked into before taking notice of any kind of the allegations in

the complaint.

21.It is in this context , the phrase “at any previous stage of the

case” means a case on file with cognizance being taken , as otherwise, there

cannot be a 'discharge' from the case. Therefore, I am of the view that in this

case, the stage of Section 200 of Cr.P.C., itself has not commenced and even

before that such application (discharge) cannot be filed. Even by giving the

meaning of widest import, ignoring the procedure of sworn statement, even

ignoring the numbering of the complaint, if one has to see only whether

there was any application of mind or authoritative notice of allegations by

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the Magistrate, the answer in this case, is in the negative. Thus, except for

receiving a complaint under Section 190 (a) of Cr.P.C., the case the

proceedings as per Section 200 have not even commenced.

22.Therefore, even though the words “at any previous stage of the

case” is meant to from the stage of inception i.e., under Section 200 of

Cr.P.C., the same would not be extended to the 'check and call on' stage as it

will be in the domain of the complainant, if the complaint is returned to

modify, add, delete the contents of the complaint . I am of the view that the

learned counsel for the petitioner is right in contending the application filed

by the Accused No. 1, even though the couched in the phrase of ' dropping

of all further proceedings' can mean an application for discharge as per

Section 245(2) only and still it is pre-mature.

23.In view of the above, findings, sustaining the preliminary

objection raised in the revision in favour of the petitioner/complainant, I am

of the view that the other questions raised for the purpose of discharging the

Accused No. 1 cannot be gone into by this court at this stage, leaving it

open to be raised at the appropriate stage to be considered on merits in

accordance with law.

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24.The Criminal Revision Case is ordered on the following terms :

(i) The order dated 20.04.2021 in Crl.M.P.No.55 of 2020 in

R.R.No.8 of 2015 in F.No.DRI/CZU/VII/48/Enq.-01/Int-11/2015, on

the file of the Learned Judicial Magistrate, Special Court for

Customs, Alandur, is set aside;

(ii) The learned Magistrate is entitled to proceed with the

complaint filed by the petitioner as such in accordance with law;

(iii) The accused will be at liberty to file the discharge

application under Section 245(2) of the Code of Criminal Procedure,

if he is of the view that if the case is groundless, at any stage,

immediately, after the cognizance of the offenses by the learned

Magistrate.

14.07.2022
Index : Yes/No
Speaking / Non-Speaking order

klt

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 Crl.R.C.No.372 of 2022

D.BHARATHA CHAKRAVARTHY. J.,

klt

To

1.The Judicial Magistrate, Special Court for Customs, Alandur.

2.The Public Prosecutor, High Court of Madras.

3.The Special Public Prosecutor, Central Government.

4.The Assistant Commissioner of Customs,

Prosecution Unit, Air Cargo Commissionerate,
New Custom House, Chennai – 600 016.

Pre- Delivery Order in

Crl.R.C.No.372 of 2022

14.07.2022

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