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Assistant Collector of Customs, New Delhi Vs. Amar Nath Gupta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Appeal No. 488 of 1972
Judge
Reported inILR1973Delhi971
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 494 and 561A
AppellantAssistant Collector of Customs, New Delhi
RespondentAmar Nath Gupta and anr.
Advocates: M. Ganeshan and; K.L. Sharma, Advs
Cases Referred and Chhitar v. State
Excerpt:
.....the judgment of bombay high court in the case of lakshmandas chaganlal bhatia and others..........granted on september 15, 1970 and in the case against sat pal jain on october 19, 1970. separate appeals in the two cases were also admitted and notices were issued to the accused. on june 1, 1972, however, the assistant collectors of customs applied for withdrawing the appeals. the only reason given in support of the request for withdrawing the appeals was that the collector of customs and central excise, who is the chief customs officer, has directed the complainants to withdraw the appeals, (3) section 494 of the code of criminal procedure, referred to in the applications (cr. m.ps. 488 and 489, of the assistant collector of customs has no application. under the provisions of that section a public prosecutor may, with the consent of the court, in cases tried by jury before the.....
Judgment:

Jagjit Singh, J.

(1) In connection, with import of certain quantities of Delta Hydro Carbosone in alleged contravention of certain provisions of the Imports and Exports (Control) Act, 1947, the Drugs and Cosmetics Act, 1940, the Drugs and Cosmetics Rules, 1945 and the Sea Customs Act, 1878, Amar Nath Gupta and Sat Pal Jain were tried by a Magistrate. There was one complaint by an Assistant Collector of Customs against Amar Nath Gupta and Sat Pal Jain and another complaint by another Assistant Collector of Customs against Sat Pal Jain alone. They were, however, acquitted in both the cases on May 18. 1970.

(2) Special leave to appeal against the orders of acquittal was applied for by the concerned Assistant Collectors of Customs, on whose complaints proceedings had been instituted against the accused. In the case against Amar Nath Gupta and Sat Pal Jain special leave to appeal was granted on September 15, 1970 and in the case against Sat Pal Jain on October 19, 1970. Separate appeals in the two cases were also admitted and notices were issued to the accused. On June 1, 1972, however, the Assistant Collectors of Customs applied for withdrawing the appeals. The only reason given in support of the request for withdrawing the appeals was that the Collector of Customs and Central Excise, who is the Chief Customs Officer, has directed the complainants to withdraw the appeals,

(3) Section 494 of the Code of Criminal Procedure, referred to in the applications (Cr. M.Ps. 488 and 489, of the Assistant Collector of Customs has no application. Under the provisions of that section a Public Prosecutor may, with the consent of the court, in cases tried by jury before the return of the verdict and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. After the pronouncement of judgment and at the stage of appeal the provisions of section 494 cannot be made use of and moreover in the present cases it is the complainant who seeks to withdraw the appeals and not the public prosecutor.

(4) The learned counsel for the Assistant Collectors of Customs and the learned counsel for the accused urged that withdrawal of the appeals may be permitted under the inherent powers of this Court under section 561-A of the Code of Criminal Procedure. In that connection no authority could be cited by them. Reliance was sought Amar Nath Gupta & Anothers to be placed on the case of Talab Haji Hussain v. Madhukar Purshottam Mondkar and another : 1958CriLJ701 in which their Lordships of the Supreme Court held that under section 561-A the High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case such power may beexercised in the interest of justice. Obviously no help can be derived from that case for holding that even after the special leave to appeal against the order of acquittal has been granted under provisions of section 417(3) of the Code of Criminal Prodcedure and the appeals have been admitted, the complainants have the power to withdraw the appeal.

(5) A full Bench of the Lahore High Court in Emperor v. Ghulam Mohammad (A.I.R. 1942 Lahore 296)0 took the view that the legislature never contemplated any withdrawal of an appeal once lodged whether by the accused or by the Crown, and once the appeal has been lodged and admitted, it is nit in the power of any court nor in the power of the appellant to allow the appeal to be withdrawn as once the appeal is admitted the court is bound to proceed under section 421 or under sections 422 and 423 of the Code of Criminal Procedure to decide the appeal on the merits.

(6) Shri M. Ganeshan, learned counsel for the Assistant Collectors' of Customs, relied upon an old case reported as Emperor v. Shaikh Rasul (The Criminal Law Journal Reports 1904- Vol. I page 751)0 in which it was observed by the Judicial Commissioner, Central Provinces, that he was not sure that if at any time before the judgment- an accused chose to abandon his appeal, any jurisdiction would remain with the appellate court to interfere in any way with the conviction and sentence appealed against except by resort to a court of revision. It was also remarked that if an accused is at liberty to conclude further proceedings by not appealing, it seems manifest that he may also do so by abandoning an appeal made but not decided. The learned counsel as well referred to the following passage from the judgment of Bombay High Court in the case of Lakshmandas Chaganlal Bhatia and others v. The State : AIR1968Bom400

'SECTION 423(1) of the Criminal Procedure Code deals with the powers of the Appellate Court to dispose of appeal after it is admitted. It requires the Court to decide it after perusing the record and hearing the appellant or his pleader if he appears. This section would suggest, thereforee, that even if the appellant does not appear to argue his appeal, the Court ought to hear the appeal on merits. It is because of this wording that it has been held in a large number of cases that merely because the appellant does not appear, his appeal cannot be dismissed for default. Even so, the principle of this section cannot apply to the case of an appellant who has obtained bail and jumped bail. Along with the section must be read section 561-A which speaks of the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure ends of justice. It is undoubtedly an abuse of the process of this Court to obtain bail and then to leave its jurisdiction and render it impossible to enforce its orders. In as much as the other provisions of the Code do not limit this power of the High Court to prevent an abuse of the process of the Court, in our view, we will be justified in refusing to hear the appeal on merits and dismiss it in liming.'

(7) The cases of Shaikh Rasul and Lakshmandas Chaganlal Bhatia -did not at all deal with the question of withdrawing an appeal against an order of acquittal.

(8) In our opinion the view taken by the Full Bench of the Lahore High Court in the case of Ghulam Mohammad (supra) is more to the point and we are in respectful agreement with it. That case was followed by the High Courts of Calcutta and Rajasthan in Biswanath Chakravarty v. Haripada De Dhara and others : AIR1959Cal443 and Chhitar v. State 1957 Cr. L.J. 155. It is, thereforee, not competent for the Assistant Collector of Customs to withdraw the appeals. There is no occasion for exercising the inherent powers of this Court under section 561-A, for it cannot be said that allowing withdrawal of the appeals would be in the interest of justice. After due consideration special leave to appeal was granted and the appeals have consequently to be disposed of on merits. The applications made on behalf of the Assistant Collector of Customs for withdrawing the Appeals are, thereforee, dismissed.


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