WILLI LEMBACK Vs. RAJAN MATHUR

JUDGEMENT

(1.) This is a petition under section 482 of the Cr. P.C. to quash the complaint/proceedings u/S 132 & 135 (1) (a) of the Customs Act, 1962 pending before Shri K.C. Lohia, Additional CJM, New Delhi against the petitioner.

(2.) Brief facts are that the petitioner came to India on 21.2.1991 and reported at the Customs Hall at IGI Airport, New Delhi for Customs clearance for leaving for Frankfurt via Hong Kong. He was asked according to the complaint at the airport as to whether he was carrying any contraband to which he replied in negative. On search of his person and baggage 6 gold biscuits weighing 347 grams alongwith US $ 31,552 were recovered. It led to the arrest of the petitioner by the officers of the Customs Deptt. Later on he was produced before the ACMM, New Delhi who remanded him to judicial custody. The petitioner was released on bail on the same day ie. on 21.2.1991. Subsequently, the respondent No. 1 filed a complaint against the petitioner u/S 132 & 135 (1) (a) of the Customs Act, 1962 ('the Act'). The petitioner had withdrawn a sum of US $ 31,552 prior to his departure for Delhi via Kathmandu and the petitioner brought the same alongwith him. He produced a certificate of the banker dated 6.2.1991 as well as the withdrawl slip from the bank in support of the above before the customs authorities. The petitioner also filed a certificate dated 7.2.1991 issued by his banker with regard to the valid acquisition of the 374 grams of gold. The Deputy Collector on 24.4.1991 confiscated the aforesaid 6 gold biscuits and the foreign currency alluded to above, u/S 113 (d) and (h) of the Act, Besides the above he also imposed a penalty of Rs. 40,000/- on the appellant u/S 11A of the Act.

(3.) Aggrieved, petitioner preferred an appeal before the Collector who disposed of the said appeal on 10.2.1992 and set aside the above order passed by the Deputy Collector. While disposing of the said appeal, he observed that there was nothing to indicate that appellant was a smuggler or a carrier and in the absence of any evidence with regard to the smuggling activity on the part of the appellant (Petitioner) the charge of Smuggling against him cannot be sustained. The petitioner has thus been exonerated of the charge of smuggling as well as clandestine attempt to export gold and currency; the complaint u/S Section 135 (1) (a) of the Act. thus becomes untenable and falls to the ground. It is the intentional evasion of duty which is the subject-matter of provisions made u/S 135 (1) (a) of the Customs Act. In view of the above, the permission granted by the Addl Collector for the prosecution of the petitioner u/S 132 and 135(1) (a) of the Customs Act would also be vitiated as the same shows complete non-application of the mind. In the above circumstances, no criminal intention can be imputed to petitioner. It has thus been prayed that the proceedings instituted against the petitioner pending before Shri K.S. Lohia, ACMM, New Delhi be quashed.