SUPERINTENDENT OF CUSTOMS Vs. HARIBHAI VALLABHBHAI TANDEL

JUDGEMENT

(1.) THIS is a Criminal Revision Application filed by the Superintendent of Customs, Valsad, Original Complainant (hereinafter the Complainant) against the Order dated 29th August, 1988, passed by the Judicial Magistrate First Class, Daman, in Criminal Case No. 9 of 1988 discharging Respondent Nos. 2 and 4/ Original accused Nos. 2 and 4 (hereinafter the Accused Nos. 2 and 4) from the complaint.

(2.) THE relevant facts, giving rise to the present revision application, are these: The Complainant filed a complaint against all the Respondents for an offence punishable under Section 135 of the Customs Act, 1962. The allegations were that during the period from 30-12-1981 to 261-1982 3810 tolas of gold of foreign origin was sold by the Accused No. 1 to accused No. 2 and several others on various dates. It was found in the course of investigation that an account was maintained by the Accused No. 1 Haribhai Vallabhbhai Tandel which showed disposal of gold from time to time. The said Accused No. 1 was arrested in New Delhi on 20-4-1982. His statement came to be recorded under Section 108 of the Customs Act, 1962. In the course of search of Accused No. 1, some documents were seized which revealed that the Accused No. 1 had delivered 2632 gold biscuits valued at Rs. 4,95,41,125/- to Accused No: 2 and the sale proceeds thereof were transferred to Dubai to Havala Transaction through the Respondent No. 4 at the instance of the Respondent No. 1. The documents also disclosed that during the period. 16-11-1981 to 24-12-1981 the Accused No. 1 had sold the said gold worth Rs. 1,51,27,525/- and the accounts were settled by means of Havala entries. The Accused No. 1 in his statement under Section 108 of the Customs Act, 1962 disclosed facts connected with smuggling of gold and sale thereof to various parties. He also disclosed full account of disposal of the said goods. In the search, certain pieces of papers containing various accounts, findings of telephone numbers in the diary maintained by the Respondent No. 11. original Accused No. 1 and various telephone number written in the said diary were found. On the basis of this investigation, the complainant filed originally Criminal Case No. 38 of 1986. Process was issued against all the Respondents. Accused No. 4 filed a criminal miscellaneous application along with others challenging the issue of process. The Learned Single Judge, of this Court sitting at Goa Bench decided the said Writ Petition on 25th September, 1987. It was held that the order issuing process was liable to be quashed and set aside. Accordingly, the order issuing process was quashed and set aside. However, the learned Judge also observed that there was no bar to file a fresh complaint for the same offence against the Petitioner therein, if there was sufficient evidence to warrant it and if so desired by the Customs Authorities.

(3.) ACCORDING to the Complainant, thereafter, a comprehensive complaint containing independent evidence against each of the Accused was filed on 24th February, 1988 in the Court of the Judicial Magistrate First Class, Daman alleging commission of the offence under Section 135 of the Customs Act, 1962 and Section 85 of the Gold (Control) Act, 1968 read with Section 120 B of the Indian Penal Code, 1860. After filing of the complaint on behalf of the Accused, Nos. 2 and 4, there were two separate applications under Section 245 (2) of the Code of Criminal Procedure for discharging them from the case, as the complaint did not disclose prima facie evidence against them for issuing process. The Learned Judicial Magistrate First Class, after hearing the parties, passed the impugned order dated 29th August 1988 discharging the Accused Nos. 2 and 4 from the proceedings. It is this order of discharge of the Accused Nos. 2 and 4 that is challenged in the present proceedings.