MITHIESH KUMARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner in this case has moved this application under Section 438 of the Criminal Procedure Code, because a case under Section 135 (1)(ii) of the Customs Act, 1962 is pending against her. This case is pending before the Chief Judicial Magistrate (Economic Offences) Jaipur. The petitioner deals in jewels and carries her business in the name of M/s. M.R. Jewellers. She is mainly doing export business and a number of parcels were despatched to M/s. Super Gems, Hongkong. Seven parcels containing precious stores were returned by M/s. Super Gems on the round that they could not be sold there and when they arrived at Jaipur the Customs Department made a checking and it was found that one parcel containing cut emeralds did not tally with the description of the items which had been exported by the petitioner. It appears that the value of the exported material was about Rs. 12,00,000/- but the stones which were returned as unsold, were of less than 1/3rd value. Thereafter M/s. Super Gems informed by letter and telegram that by mistake different goods were despatched and that the parcel should be returned so that they could send the actual stones which had been sent by the petitioner, Thus, the case of the prosecution is that under the guise of return of unsold goods the petitioner was evading duty on the goods which had been exported by her and at the same time was importing material for which she did not possess any import licence.

(2.) The learned Counsel for the petitioner has contended that at the time of export as well as at the time of import the parcels are supervised and checked by the Customs Department and there could be no occasion for escaping the notice of the authorities, because every single parcel is checked thoroughly. It is contended that it was a bona fide mistake on account of which wrong goods were returned by M/s. Super Gems and this they informed telegraphically also. It is contended that whatever may be the position the petitioner will face the case and there is no reason to detain her during the trial of the case. It is contended that the offence is punishable by three years imprisonment and the trial of the case is likely to take more time than the prescribed punishment. Nothing is to be recovered from the petitioner.

(3.) It has also been contended that the goods received were cut and polished precious stones which are not ordinarily imported in India and had it been the intention of the petitioner to import some precious stones on the pretext of returning unsold goods then they would have asked for uncut rough stones which are normally imported.