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Arun Sahu Vs. Haridas Arora - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1984CriLJ1028
AppellantArun Sahu
RespondentHaridas Arora
Cases ReferredNatverlal K. Bavishi v. State and
Excerpt:
- .....a petition of complaint in the court of the chief metropolitan magistrate, calcutta against the opposite party, haridas arora, under section 135 of the customs act, 1962 (hereinafter referred to as the act for the sake of convenience), on alleging recovery of foreign medicines worth about rupees 15,200/- on a search of the godown of a firm named messrs. 'mukta pharma' at room no. a-23 of the 3rd floor of premises no. 55 canning street, calcutta on 3.1.1974 in presence of the opposite party, haridas arora. by an order passed on 9.1.1975 the then learned chief metropolitan magistrate, calcutta, took cognizance of the offence under section 135 of the act and transferred the case to sri b.n. chandra, metropolitan magistrate for favour of disposal. subsequently, 13 witnesses were examined.....
Judgment:

S.P. Das Ghosh, J.

1. This revisional application is directed against an order passed by Sri D.K. Chatterjee, learned Metropolitan Magistrate, 7th Court, Calcutta in Case No. C/17 of 1975.

2. On 9.1.1975, one Sri Nripendra Narayan Roy Choudhury, Assistant Collector of Customs, West Bengal, filed a petition of complaint in the court of the Chief Metropolitan Magistrate, Calcutta against the opposite party, Haridas Arora, under Section 135 of the Customs Act, 1962 (hereinafter referred to as the Act for the sake of convenience), on alleging recovery of foreign medicines worth about Rupees 15,200/- on a search of the godown of a firm named Messrs. 'Mukta Pharma' at room No. A-23 of the 3rd floor of premises No. 55 Canning Street, Calcutta on 3.1.1974 in presence of the opposite party, Haridas Arora. By an order passed on 9.1.1975 the then learned Chief Metropolitan Magistrate, Calcutta, took cognizance of the offence under Section 135 of the Act and transferred the case to Sri B.N. Chandra, Metropolitan Magistrate for favour of disposal. Subsequently, 13 witnesses were examined for the prosecution in the case. On a consideration of the evidences of the P.Ws., statement of the opposite party under Section 313, Cr.P.C. and the materials on record including one statement made by the opposite party, Ext. 12, after search on 3.1.1974, the learned Metropolitan Magistrate, 7th Court, Calcutta dropped the proceeding and discharged the opposite party from the bail bond on holding that the case was not maintainable on the basis of decision of this Court in the case of Union of India v. Remo Morgani 1980 (1) Cal HN 388. Being aggrieved by this judgment of the learned Metropolitan Magistrate, the present revisional application has been filed. 3. The contentions of Mr. Sanyal appearing for the petitioner are that the case of Remo Morgani 1980 (1) Cal HN 388 is distinguishable from the facts of the present case. It is urged by Mr. Sanyal that When the complaint was filed by Sri Nripendra Narayan Roy Choudhury, since deceased, as a public servant and as, in that petition of complaint, after cause title and before statement of facts, constituting the offence, it was stated that the petition was the humble petition of the complainant and as there was a further prayer in the prayer portion of the petition of complaint for dispensing with the personal appearance of the complainant on the ground that he was a busy public servant, the complaint was really a complaint by Sri Nripendra Narayan Roy Choudhury and hence the case ought not to have been dropped by the learned Metropolitan Magistrate on following the decision of this Court in the case reported in 1980 (1) Cal HN 388.

4. Mr. Dutta appearing for the opposite party has submitted that the Division Bench decision of this Court in the case of Remo Morgani 1980 (1) Cal HN 388 has been followed subsequently in another Division Bench decision in the case of Union of India v. Subodh Kumar Mehta Criminal Appeal No. 65 of 1977 : 1984 CriLJ 367 (Cal) as well as another Division Bench case of T.K. Lahiri Asst. Controller of Customs and Supdt. Preventive Services, Customs House, Calcutta v. Suresh Chandra Criminal Misc. Case No. 311 of 1983. It is contended that as it has been held by three Division Benches of this Court that a complaint of this type by Union of India represented by Nripendra Narayan Roy Choudhury is not maintainable, the learned Metropolitan Magistrate was justified in dropping the case. Secondly, it is contended by Mr. Dutta that as the case was dropped, the opposite party was acquitted and remedy, if any, of any aggrieved, party was by way of appeal and not revision. It is contended that when Nripendra Narayan Roy Choudhury is since dead, the present revisional application is incompetent in view of the provisions in Section 378(4) under which it is only the complainant who can prefer an appeal against an order of acquittal in a complaint case after obtaining special leave to appeal from the order of acquittal. Mr. Dutta has also taken us through the evidences of some of the P.Ws. and has argued that on merits also the opposite party was entitled to be acquitted as mere markings or labels could not be taken as proof of the fact of foreign origin of the medicine.

5. Sri Nripendra Narayan Roy Choudhury described himself as complainant in the case in the following manner:

Union of India

Represented by Sri Nripendra Narayan Roy Choudhury, Assistant Collector of Customs, West Bengal, Calcutta.

The present revisional application has been filed by Arun Sahu, Assistant Collector, Customs, West Bengal, Calcutta on alleging that Sri Nripendra Narayan Roy Choudhury has since retired and he was working in the place of Sri Roy Choudhury and has been authorised to file the revisional application in this Court. In the case of Remo Morgani 1980 (1) Cal HN 388, the complaint was filed by one A.M. Sinha, Assistant Collector of Customs for Prevention (1). Customs House, Calcutta representing the Union of India. The petition of appeal of that case was filed by one Sri Jivan Krishna. In the cause title of the appeal in that case, the appellant was described as the Union of India, on the complaint of the Assistant Collector of Customs. In view of the provision in Section 378(4), Criminal P.C. it is only the complainant who can prefer an appeal against an order of acquittal passed in any case instituted on a complaint on obtaining prior special leave to appeal from the order of acquittal. The appeal in the case of Remo Morgani was thus filed by a different person and not by the complainant. As such, it was observed in the case of Remo Morgani that when the appeal was not filed by the complainant and the complainant who filed the complaint was not authorised by the Union of India to file the complaint, Sri Jivan Krishna who filed that appeal was not competent to file the same. The main reason for decision in the case of Remo Morgani for holding the appeal non-maintainable was the filing of that appeal by a person other than the complainant in spite of the provisions in Section 378(4) Cr.P.C. Similarly, in the case of Union of India v. Subodh Kumar U. Mehta Criminal Appeal No. 65 of 1977 : 1984 CriLJ 367 (Cal) decided by this Court on 21.1.1983 the petition of complaint was filed by one Mr. Narsinh, Assistant Collector of Customs, West Bengal. In the memorandum of appeal the appellant was1 described as Union of India represented by the Assistant Collector of Customs, West Bengal. The Vakalatnama in that case was executed by one Kalipada Gupta, Assistant Collector of Customs, West Bengal as distinguished from Mr. Narsinh who had filed the complaint. The appeal in the case of Subodh Kumar U. Mehta Criminal Appeal No. 65 of 1977 : 1984 CriLJ 367 (Cal) of this Court was thus filed, by a person other than the complainant. As such, on following the decision of this Court in the case of Remo Morgani 1980 (1) Cal HN 388, it was held by Their Lordships that the Criminal Appeal No. 65 of 1977 was not maintainable. The Criminal Misc. Case No. 311 of 1983 (Cal) arose out of an application for special leave to appeal under Section 378(4), Cr.P.C. That Misc. Case was dismissed summarily by their Lordships Hon'ble Mr. Justice P.C. Borooah and Hon'ble Mr. Justice A.M. Pal without any discussion as to why that application for special leave was rejected, as no such discussion was necessary in a case of summary rejection of a petition for granting special leave to appeal under Section 378(4), Cr.P.C. As contrasted with the case of Remo Morgani and the case of Subodh Kumar U. Mehta, the petition of complaint in this case has been filed by Sri Nripendra Narayan Roy Choudhury representing Union of India and the revisional application has been filed by Arun Sahu on alleging retirement of Sri Nripendra Narayan Roy Choudhury from service. On the basis of the decisions in the case of Remo Morgani and Subodh Kumar U. Mehta, we are unable to accept the proposition that the petition of complaint filed by Sri Nripendra Narayan Roy Choudhury in the court of the Chief Metropolitan Magistrate, Calcutta was not maintainable. A complaint, as defined in Section 2(d), Cr.P.C., can be made even orally or in writing with a view to taking of action by a Magistrate. There is nothing in the definition of complaint in Section 2(d), Cr.P.C. which requires it to be made by any person who is actually aggrieved. Cognizance of offence can be taken by a Magistrate on receiving a complaint of facts which constitute such offence or on a police report of such facts and also on information received from any person other than a police officer or on his own knowledge that such offence has been committed. Unlike the provisions in the Civil P.C. showing what particulars should be contained in a plaint in different types of suits and how reliefs are to be stated or founded (vide Order 7 of the Civil P.C.), there is nothing in the Criminal P.C. to show that complaint is to be filed by a particular person or persons. The definition of complaint in Section 2(d) of the Code shows that an allegation can be made in a complaint that an unknown person has committed an offence. There is no provision in the Criminal P. C. for filing of a complaint by a person on behalf of or representing another person. Order 3 of the Civil P.C. contains provisions for recognised; agents and pleaders. Order 27 of the Civil P.C. contains provisions as to how plaints are to be filed in suits by the Government. Order 27 Rule 2 of the Civil P. C. contains provision for persons authorised to act for the Government. There is no provision in the Criminal P.C., that a complaint can be signed and filed by a person in a criminal court on behalf of another, on being authorised by that other person, alike the aforesaid provisions in Order 27 of the Civil P.C. In such circumstances, complaint of this case being filed by Nripendra Narayan Roy Choadhury representing the Union of India, cannot be said to be not maintainable in the absence of any letter of authority from the Union of India, as there is no provision in the Criminal P.C. that the complaint would have been made valid on the basis of any such letter of authority from the Union of India. A public servant may retire from service, may be suspended, may be dismissed from service and may even die. That is the reason why in cases of this type, involving complaint for contravention of law, complaints are to be filed in the name of Union of India represented by a particular public servant actually filing the complaint. Otherwise, such a case cannot proceed if the public servant as a complainant dies or retires from service or is suspended or is dismissed from service. We do not thus find any irregularity in the filing of the complaint by Sri Nripendra Narayan Roy Choudhury on showing him as complainant in the petition of complaint, though stating in the cause title of the petition of complaint that he was representing the Union of India. The first contention of Mr. Dutta on the basis of the decisions of this Court in the cases of Remo Morgani 1980 (1) Cal HN 388, and Subodh Kumar U. Mehta Criminal Appeal No. 65 of 1977 : 1984 CriLJ 367 or in the case of Suresh Chandra Dutta Criminal Misc. Case No. 311 of 1983 thus fails.

6. As for the second, contention of Sri Dutta we agree with his view that the dropping of proceeding of the case by the learned Metropolitan Magistrate is tantamount to an order of acquittal of the opposite party.

7. We are, however, unable to accept the contention of Mr. Dutta that when an appeal could have been filed in this case under Section 378(4), Cr.P.C. by Sri Nripendra Narayan Roy Choudhury the present revisional application is incompetent. Under Sub-section (4) of Section 401, Cr.P.C. no proceeding by way, of revision shall be entertained at the instance of the party who could have appealed, where under the Criminal P.C. an appeal lies and; no appeal is brought. In view of this provision in Section 401(4), Cr.P.C. if the present revisional application would have been filed by Sri Nripendra Narayan Roy Choudhury, the revisional application would have been incompetent, as he could have appealed from the decision of the learned Metropolitan Magistrate in this case on the basis of Section 378(4), Cr.P.C. after obtaining special leave to appeal from the order of dropping of the proceeding. When Sri Nripendra Narayan Roy Choudhury had retired from service as per the averment in para. 2 of the present revisional application, the provisions in Section 401(4), Cr.P.C. do not, in our view, bar the present revisional application. The second contention of Sri Dutta also fails.

8. Coming to the merits of the case, it is to be stated that on 3.1.1974 the respondent made a statement, Ext. 12. The learned Magistrate discussed about the statement and the averment in the statement that the opposite party was astonished to see the foreign medicines in the packets in. the godown of his business. This statement, Ext. 12, which is not hit by Section 25 of the Evidence Act, was to the effect that in the noon of 3.1.1974 the opposite party closed his shop and store-room and went out for his meal leaving the keys with his servant, that during his absence one unknown person came with a packet and requested his servant to keep the packet temporarily as he would be coming in the evening to purchase some medicines from his shop, that his servant kept the packet in the store-room of Messrs. Mukta Pharma in good faith, that the servant handed, over the keys to the opposite party when he came back at about 3-0 p.m. and opened the shop and that the servant had also informed the opposite party about the packet, though that servant could not say anything about the person. The name of the servant is given out in the statement, Ext. 12, as Vinod Kumar Singh. The presence of the opposite party at the time of search on 3.1.1974 is not denied in the statement, Ext. 12, though the opposite party shifted responsibility for existence of the packet, containing medicines, on the unknown person alleged to keep the packet in the godown on requesting the servant of the opposite party. As contrasted with the case of the apposite party in his statement, Ext. 12, the opposite party denied his presence at the time of the search on 3.1.1974 at the time of his examination under Section 313, Cr.P.C.. The Act contains several provisions regarding burden of proof in certain types of cases arising out of seizure and recovery under the Act, Section 123 of the Act lays down the burden of proof in respect of notified goods. Section 138-A of the Act contains provision about culpable mental state. Under Section 138-A of the Act, in any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state, but it shall be the defence for the accused, to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The Explanation to Section 138-A of the Act is to the effect that the expression, 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. The charge in this case was under Section 135(1)(b)(ii) for being in possession of the foreign made medicines and for being concerned in carrying, depositing, harbouring, keeping, concealing or in any other manner dealing with the same goods, which the opposite party knew or had reason to believe, were liable to confiscation under Sections 111(d) and 111(k) of the Act. in view of the provisions in Section 138-A of the Act, it was the duty of the opposite party at least to examine the servant Vinod Kumar Singh for the purpose of showing that it was a stranger who had kept the packet containing the medicines in his godown during his absence., Instead of doing that, the opposite party decided to resile from his statement to the Customs Officer, Ext. 12 at the time of his examination under Section 313, Cr.P.C. In the circumstances, on the basis of the submission of Mr. Dutta founded on the evidences of P.Ws. 6 and 8 going to show that apart from labels and markings they had no other knowledge about the foreign origin of the medicines, we are not inclined to acquit the opposite party or discharge the Rule, as prayed for by Mr. Dutta. Mr. Dutta has placed before us a Division Bench decision of this Court on 10.1.1979 in Crl. Revn. 1445 of 1978 Natverlal K. Bavishi v. State and has argued that merely because the seized, goods had foreign markings or labels, it cannot be assumed that the medicines were smuggled goods. The Criminal Revn. No. 1445 of 1978 was for quashing of a proceeding pending in the court of the learned Metropolitan Magistrate, 9th Court, Calcutta for framing a charge in that case under Section 135(1)(b)(ii) of the Act after examination of eight witnesses on the ground that merely because the seized goods of that case had foreign markings or labels it could be assumed that those goods were smuggled goods. This contention was accepted by their Lordships in the case of Natverlal in Criminal Revn. Case No. 1445 of 1978 on holding that it might have been a good and valid reason for the seizing officers to search and seize the goods in the reasonable belief that those were smuggled goods, but there must be something more in support of such reasonable belief when the court was required to ascertain the position whether there were prima facie materials warranting framing of a charge under Section 133(1)(b)(ii) of the Act. In the present case such materials are on record, such materials being the statement of the opposite party Ext. 12, even leaving aside the divergent case made out by the opposite party at the time of his examination under Section 313, Cr.P.C. The opposite party has also some onus to discharge in view of the provisions in Section 138-A of the Act. In such circumstances, we are of the opinion that, the Rule is to be made absolute and the case is to be sent back for retrial.

9. The Rule Is, accordingly, made absolute. The case is sent back for retrial in the light of the observations made above.

10. Let the lower Court records be sent down to the Court below at once.

11. After the judgment is delivered Mr. Dutta prays for a certificate for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution. The prayer is granted.

12. Let the operation of this order be stayed for a period of six weeks.

B.C. Chakrabarti, J.

I agree.


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