RAKESH KUMAR GOYAL Vs. NCT OF DELHI

JUDGEMENT

(1.) By the present petition the Petitioner challenges the order dated 15 th January, 2008 summoning the Petitioner for offences under Sections 174/175 IPC and quashing of the criminal complaint No. 8/1 of 2008 titled as Shri R.K. Chibber Vs. Rakesh Kumar Goyal pending with the Learned Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi.

(2.) Learned counsel for the Petitioner contends that none of the summons allegedly issued under Section 108 of the Customs Act from 13 th July, 2006 to 10 th July, 2007 were issued by a person duly authorized by the Central Government in this behalf. The authorization for the first time in favour of a Gazetted officer of Customs was given by the Central Government on 20 th February, 2008 and thus even if the Petitioner did not appear before the officer concerned pursuant to the summons issued, no offence under Sections 174/175 IPC is made out and thus the learned Trial Court erred in taking cognizance on the complaint filed by the Respondent and issuing summons to the Petitioner. It is further contended that by way of retrospective amendment to Section 108 (1) of the Customs Act, an act, which was not an offence when the Petitioner was required to appear and produce documents by various summons and letters, cannot be made an offence with retrospective effect. This violates the Constitutional guarantee provided under Article 20 of the Constitution of India. Reliance in this regard is placed on Star India Pvt. Ltd. Vs. Commissioner of Central Excise, 2005 7 SCC 203 and Superintendent Narcotics Control Vs. Parash Singh, 2008 13 SCC 499. It is next contended that the Customs Act is a selfcontained Act and provides penalties and consequences of any noncompliance of its provisions under Section 117 of the Customs Act and thus assuming, though not admitting, that there was non-compliance, no action under Section 174/175 IPC could be taken. Since the Customs Act is a special statute and declares various acts as set out from Sections 132/135-A as offences and the manner of cognizance of the offence is laid down in Section 137 of the Act, the same will prevail over the Indian Penal Code (IPC) unless the offences under IPC are made specifically applicable. Reliance is placed on Delta Impex v. Commissioner of Customs, 2004 110 DLT 209. Relying on Enforcement Directorate Vs. M. Samba Siva Rao, 2000 5 SCC 431 it is submitted that the provisions of the Customs Act would prevail over IPC and any violation of Section 103 of the Customs Act would be punishable as specifically provided therein and not under Section 174/175 IPC. Further even on merits summons were duly complied with and the details sought therein were furnished. Thus, the charge of noncompliance is baseless. Reliance is placed on Saroj K. Dutta Vs. R.L. Thaplial, 2009 7 AD(Del) 274. The filing of the complaint against the Petitioner is mala-fide as the Petitioner had filed a complaint against Dr. John Joseph, Additional Commissioner of the Respondent under whose charge Respondent No.2 the Investigating Officer was functioning, and thus as a counter-blast, the Petitioner is implicated in this complaint. Further, violating the principles of natural justice, the details of the enquiry as requested repeatedly by the Petitioner?s company have not been furnished. In the alternative, it is also contended that the complaint for non-compliance of summons dated 12 th June, 2006 and 18 th July, 2006 is barred by limitation under Section 468 Cr.P.C. The impugned order of cognizance is dated 15 th January, 2008 and the notification and amendment by way of Section 69 of the Finance Act 2008 came into force only on 10 th May, 2008. Thus, even on the date of issuance of the summons by the learned Trial Court, the Custom Officer was not authorized to summon the Petitioner.

(3.) Learned Additional Solicitor General on the other hand contends that since the Petitioner admits having received the summons, the noncompliance thereof attracts Sections 174/175 IPC and thus the complaint and the order summoning the Petitioner cannot be quashed. In view of the amendment in the Financial Act, 2008 retrospectively amending the Section 108(1) of the Act with effect from 13 th July, 2006, the contention of the Petitioner that the Custom Officer had no authority to issue summon on 12 th June, 2006 and 18 th July, 2006 is without merit. Vires of the amendment have not been challenged and in absence thereof, this Court in a petition under Section 482 cannot hold that the Officer was not duly empowered and competent to issue summons for appearance to the Petitioner, consequently, the Petitioner can be prosecuted for non-compliance of the summons issued by the Customs Officer. The essential requisites of Section 108 of the Customs Act are either to give evidence or to produce a document or any other thing in any enquiry . Thus, these are all procedural aspects for which any retrospective amendment can be made. When an enquiry is conducted the person summoned cannot be informed in advance about the nature of enquiry and it is only on enquiry, offence, if any, committed can be ascertained. Referring to the summons issued and the replies of the Petitioner, it is stated that there was continuous default in appearance which default continues till today and in view thereof this being a continuing offence thus the provisions of Section 468 Cr.P.C. does not apply. The moment the notification giving retrospective effect to the amendment is made, the offence then committed by the Petitioner continues to be offence till date and thus it cannot be said that on the date of offence the officer was not empowered to issue summons. Thus, even if there was any defect earlier, the same stood rectified. Section 117 of the Customs Act has no application to the facts of the present case as the same applies to penalties where no express penalty is provided in the Customs Act. Further Article 20 of the Constitution bars a person from being convicted for any offence except for violation of a law in force at the time of the commission of the alleged offence. Reliance is also placed on Enforcement Directorate Vs. M. Samba Siva Rao, 2000 5 SCC 431 wherein it was held that non-compliance of the summons issued under Section 40 of the Foreigners Exchange Regulation Act, 1973 (in short FERA?) is to be viewed seriously. Assuming the contention of the Petitioner to be correct, though not admitting, the procedural irregularity of the Custom Officer having no authority to summon cannot dilute Section 174 IPC. The proceedings under Section 108 of the Customs Act are judicial proceedings and any person who violates the same is liable to face the rigmarole of Section 174 IPC. As regards the mala fide, nothing has been placed on record to show that there is any mala fide on the part of the Investigating Officer. Referring to various summons issued and the reply of the Petitioner, it is contended that not once did the Petitioner join the enquiry and only on one occasion incomplete documents were sent. In any case the issues raised in the present petition are required to be decided by the Trial Court and are not the matter for consideration in a petition under Section 482 Cr.P.C. Further a person, who does not comply with procedural rigour of the law, cannot seek a relief under Section 482 Cr.P.C.