M S KOCHAR Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this criminal revision under Section 397 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), in brief are that the complainant was carrying on business as Managing Director of the firm M/s. House of German Machinery and was also functioning as an industrial consultant engineer at the relevant time. He was also the sole representative in India of various manufacturing concerns of repute of Western Germany. The petitioner imported certain machinery from Germany for displaying the same in the International Industries Fair held in November 1961 after obtaining a val?d Customs Clearance Permit from the Chief Controller of Imports, New Delhi, for the said purpose. When the goods arrived at Delhi the aforesaid exhibition was already in progress but the goods could not be cleared on account of certain objections raised by the Customs Department who refused to release the goods. Eventually, however, the petitioner succeeded in getting the goods cleared on compliance with certain formalities as required. The Customs Clearance Permit permitting the petitioner to retain the goods was extended upto 1st June 1982. He applied for its extension, but while his application for the said purpose was still pending B. Saha, Appraiser Customs (accused No. 1) accompanied by other Customs officials, namely, N. K. Nayyar, P. N. Suri and U. S. Tewari (accused Nos. 2 to 4) raided the premises of the petitioner on 16th June 1962 pursuant to search warrant obtained from the Illaqa Magistrate and seized the imported machinery and some goods and cash belonging to the petitioner. Two inventories were prepared by the accused persons at the time of the seizure and the seized goods were then packed in boxes which were duly sealed. A copy of the recovery memo was given to the petitioner also.

(2.) On 28th November 1963 the petitioner moved an application before the Sub-Divisional Magistrate. Karol Bagh, praying for interim custody of the goods seized by the Customs officials on superdari because the condition of the said goods was likely to deteriorate unless they were kept in proper condition ; moreover the Customs Department had not instituted any complaint against him for unlawful import etc. The Sub-Divisional Magistrate passed an order on 22nd January 1964 directing delivery of the seized goods to the petitioner on superdari on his furnishing a bond in the sum of Rs. 21,000.00 only. Feeling aggrieved by the said order, the Customs Department fild a revision petition in the Court of Sessions Judge and obtained a stay order on 7th February 1964. Eventually, however, the revision petition' was dismissed by an Additional Sessions Judge vide his order dated 3rd April 1965. Still not satisfied the Customs Department filed another revision petition in the High Court. However, in the meanwhile they delivered part of the seized goods, which were to their custody, to the petitioner. Vide order dated 22nd August 1966 this Court directed that all the goods which were in the custody of the Customs authorities as also the goods which had been handed over to the petitioner on superdari be produced before the Sub-Divisional Magistrate who would prepare an inventory of all the goods and keep the goods in his own custody. Accordingly, both the petitioner and the Customs officials produced the goods in their respective custody and two inventories were prepared, one on 16th November 1966 and the other 13th December 1966. However, it was then noticed that the four packages, which were in the custody of the Customs officials, had been tampered with: one wooden box as also its seal was found broken while the remaining three packages were found to be completely empty although seals were still intact. The petitioner, thereupon, lodged a protest and complained of misappropriation of the goods which were in the custody of the Customs officials.

(3.) On 31st January 196/ the petitioner instituted a complaint against all the above mentioned four Customs official under Sections 120-B/166/409, Indian Penal Code (for short IPC'). Slating the foregoing facts he contended that the .acclised hp^ entered into a criminal conspiracy for misappropriation of the a^oresaid goods and that was the reason why they did not produce the seized goods pursuant to order dated 22nd January 1964 of the Sub-Divisional Magistrate. It may he noticed here that in the meantime a complaint was instituted by the Customs Department against the petitioner under Section 5 of the Import and Export Control Act and Section 167(81) (J of the Sea Customs Act against the petitioner on account of contravention of the provisions of the said Acts and the Rules, but they did not produce some of the goods seized by them before the Sub-Divisional Magistrate when directed to do so. It was therefore alleged that the accused had withheld & misappropriated those goods and did not comply with the under of the Sub-Divisional Magistrate tor producing the same deliberately.