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Damodar Lal Vs. Assistant Collector of Central Excise and Customs - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 326/1978
Judge
Reported in1979(4)ELT142(Raj)
ActsCustoms Act, 1962 - Sections 133A and 135; Defence of India Rules - Rule 126; Gold Control Act, 1968 - Sections 98B; Code of Criminal Procedure (CrPC) , 1973 - Sections 399
AppellantDamodar Lal
RespondentAssistant Collector of Central Excise and Customs
DispositionRivision dismissed
Cases ReferredPyarali K. Tejani v. Mahadeo Ramchadra Dangc and Ors. A.I.R.
Excerpt:
.....parting with the case i will like to caution that nothing which may have to be said in support of my order while answering the question raised is meant and should be understood to prejudice in the least the case of either party at the trial. the learned magistrate has not merely taken an erroneous view of law but has committed a gross mistake in utter disregard of the decisions of this court as well as that of hon'ble the supreme court of india......collector, central excise and customs complainant, his personal presence was exempted by the learned magistrate shri om prakash. in the course of the proceedings the statements of two witnesses namely, m. r. sachdeva and prem kumar, were recorded. on may 31, 1977, neither the complainant nor his counsel appeared before the court. the learned magistrate took exception to the conduct of the prosecution in not attending the court regularly and dismissed the complaint in default by his order dated may 31, 1977.2. aggrieved of the above order passed by the learned magistrate, shri om prakash, the department went up in revision. this revision petition was filed by the succeeding assistant collector, central excise and customs, shri gandharb bhushan. the learned sessions judge after.....
Judgment:

M.L. Shrimal, J.

1. On August 20, 1966, the accused-petitioner, Damodar Lal was travelling in a train with gold bars bearing foreign marks. These bars were seized and recovered from his possession. Prosecution was launched against him under Section 135(b) of the Customs Act read with Rule 126(p)(2) of the Defence of India Rules. On the application of the then Assistant Collector, Central Excise and Customs complainant, his personal presence was exempted by the learned Magistrate Shri Om Prakash. In the course of the proceedings the statements of two witnesses namely, M. R. Sachdeva and Prem Kumar, were recorded. On May 31, 1977, neither the complainant nor his counsel appeared before the Court. The learned Magistrate took exception to the conduct of the prosecution in not attending the Court regularly and dismissed the complaint in default by his order dated May 31, 1977.

2. Aggrieved of the above order passed by the learned Magistrate, Shri Om Prakash, the department went up in revision. This revision petition was filed by the succeeding Assistant Collector, Central Excise and Customs, Shri Gandharb Bhushan. The learned Sessions Judge after careful consideration of the facts and circumstances of the case, held the impugned order of learned Magistrate improper. Consequently he set aside the order of discharge and remanded the case for further trial.

Being aggrieved with that order, the petitioner has come up to this Court.

3. One of the contentions raised by the learned counsel for the petitioner is that revision was not filed by the same person, by whom complaint was filed. It will not be out of place to mention that in this case the complaint was filed by an officer holding a particular post and the revision petition was filed by another person holding the same post, after the transfer of the former. Apart from that, in exercise of revisional jurisdiction the Court has its own -power to set aside an illegal order. The power of revision conferred by Section 399, Criminal Procedure Code, 1973, is one which the Court can exercise suo motu. Even a third party who has an interest in the subject matter and is aggrieved by the order can apply in revision. All that a person filing a revision petition under that Section does is to draw the Court's attention to an illegal, improper and incorrect finding or order of a subordinate Court. The fact that in this case the succeeding officer filed a revision petition did not affect the revisional powers of the Court and the Court will be failing in its duties if it does not examine the matter carefully. Moreover, now the matter has come before this Court. The High Court, as an effective instrument for administration of Criminal justice keeps a constant vigil and whenever it finds that justice has sufferred, it takes upon itself as its bounden

duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of the disposal of the case in hand by the subordinate court so lightly needs prompt remedial action on the part of the High Court for the ultimate social good of the community.

4. Paragraph No. 1 of the revision petition itself shows that the gold bars themselves prima facie bear on their bosom evidence of smuggled source in the shape of foreign mark.

5. Though it is an economic offence, it is surprising that the learned Magistrate has shown undue softness to unsocial and anti-social offender. Admittedly the complainant is a Government servant. The learned Magistrate could have either adjourned the case or could have closed the prosecution evidence and proceeded further according to law keeping in view the evidence recorded so far and the provisions of Section 133A of the Customs Act, 1962 as well as Section 98-B of the Gold (Control) Act, 1968. The question which needs determination is whether the accused is entitled to an order of discharge even though there may be sufficient evidence on record to convict him simply because the authority concerned with the prosecution has not taken proper care to prosecute its case and the concerned officer has not appeared in the Court. In the face of repeated declarations made by the Parliament to stamp out smuggling of gold, it cannot be said that the Legislature even intended that our Magistracy should show undue softness towards persons who are being prosecuted for smuggling of gold.

6. India has been facing an economic crisis and gold smuggling has had a disastrous impact on the State's efforts to stabilize the country's economy. Smugglers, hoarders. adulterators and others of their like have been busy in their under-world because the legal hardware has not been able to halt the invisible economic aggressor inside. The ineffectiveness of prosecution in arresting the wave of white-collar crime and undue softness of Magistrate in our country must disturb the Judges' conscience. The offence for which the petitioner is being prosecuted is typical. The so called respectable persons tempted by the heavy pay-off face the perils of the law and hope that they could smuggle on a large scale and even if struck by the court they could get away with a light blow or by the inefficiency and lethargy of the prosecution agency in bringing the witnesses to the Court.

7. The celebrated writer, world known jurist and a sitting judge of the Supreme Court of India Hon'ble Krishna Iyer J. time and again in a number of cases has observed that economic offences which are deceptively committed by respectable members of the community by inflicting severe trauma on the wealth of the nation need a different treatment, because the members of this neo-criminal tribe are repeatedly escalating. The following remarks given by a Constitutional Bench consisting of 5 Judges of the Hon'ble Supreme Court in Pyarali K. Tejani v. Mahadeo Ramchadra Dangc and Ors. A.I.R. 1974 S.C. 228 aptly apply to the facts of this case : -

'There is injustice to the community - the invisible but immense victim of the crime in the court's misplaced sympathy for the culprit.'

Before parting with the case I will like to caution that nothing which may have to be said in support of my order while answering the question raised is meant and should be understood to prejudice in the least the case of either party at the trial.

8. The revision .is devoid of merits and it is summarily dismissed. The learned Magistrate has not merely taken an erroneous view of law but has committed a gross mistake in utter disregard of the decisions of this Court as well as that of Hon'ble the Supreme Court of India.


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