IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 13th March, 2015 Judgment Pronounced on: 27th March, 2015 CRL.REV.P. 41/2006 DEPARTMENT OF CUSTOMS Petitioner Through: Mr. [ENTITY] and Mr.[ENTITY], Advocates versus SHARAD GANDHI Respondent Through: None. CORAM: HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J.
1. Aggrieved by the order dated 16.11.2005 passed by the learned Additional Chief Metropolitan Magistrate dismissing the complaint and discharging the respondent, the present revision petition has been filed by the petitioner.
2. Factual matrix, as emerges from the record, is that on 18.02.1995 during the course of clearance of courier bags of M/s DHL Worldwide Express, a wooden box was intercepted on suspicion and was examined by the Customs Preventive Officers of IGI Airport. The wooden box had contained Stone Figure Handicrafts in the courier manifest. In the airway bill, sender was shown as Mr.[ENTITY] and receiver was shown as M/s DHL Worldwide Express. On examination of wooden box, it was found containing one partly mutilated stone head. The officers of Archaeological Survey of India were called to examine the said stone head. The officers of Archaeological Survey of India identified the sand stone head as of [ENTITY] and declared the same to be an Antiquity. The same was, therefore, seized. The allegation against the respondent was that the sand stone head of [ENTITY] was booked by him for [ENTITY] through M/s DHL Worldwide Express. The airway bill was signed by the accused and thus the accused was the owner of the consignment and he had attempted to export the seized antique piece of sand stone of [ENTITY] illegally. The respondent was arrested on 06.07.1995 in accordance with law.
3. After completion of enquiries, a complaint for offences punishable under [SECTION] & [SECTION] of the [ACT] was filed by the Department of Customs against the respondent. Cognizance of offences was taken.
4. To prove its case, the petitioner examined seven witnesses in pre-
charge evidence. While the evidence was being recorded, the respondent moved an application for discharge and dropping the proceedings against him. The respondent in his application for discharge had taken the plea that the criminal proceedings against him were not legally maintainable in view of the decision of the High Court of Delhi in the case of Dr. [PRECEDENT] vs. S.S. Chauhan & Another 1996 (2) CC Cases 321. The learned Additional Chief Metropolitan Magistrate vide order dated 16.11.2005 discharged the respondent holding that there is complete bar with regard to prosecution under the [ACT] and under the [ACT] only the Collector of Customs has power to confiscate the goods and impose penalty for having committed the breach of [SECTION] of the [ACT] and nothing more.
5. Feeling aggrieved by the same, the petitioner has preferred the present revision petition to set aside the order dated 16.11.2005.
6. Argument advanced by the learned counsel for the petitioner is that the order of discharge passed by the learned Additional Chief Metropolitan Magistrate is based on the judgment of Dr. [PRECEDENT] (supra) and the present case is different from the case of Dr. [PRECEDENT] (supra). He has further contended that in the present case there is clear violation of the provisions of the [ACT]. The judgment in the case of Dr. [PRECEDENT] (supra) is not applicable in the present case as the same has already been challenged in the Hon'ble Supreme Court vide [CASE NUMBER] and the same is pending for decision.
7. Learned counsel for the petitioner has also referred to judgment in the case of [PRECEDENT]. The facts of the said case are that the appellant sought to export skirts. The exporter claimed a drawback of money on the consignment on the basis that the value of each skirt was higher. During the enquiry, the exporter admitted that the market price of skirt was less and the claim of drawback was withdrawn. The Hon'ble Apex Court held that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. On similar point, learned counsel for the petitioner has also referred to judgment in case of [PRECEDENT] by this Court on 28.03.2012).
8. On the other hand, learned counsel for the respondent has argued that the complaint filed by the Customs under the [ACT] was not sustainable as the prosecution can be launched only under the [ACT]. There was specific provision in the [ACT] for launching prosecution and only the penalty can be imposed under the [ACT].
9. To deal with the rival contentions of the parties, this Court has gone through the above referred case law. This Court in case of [PRECEDENT] (supra) has observed that [SECTION] of the [ACT] made all the provisions of the [ACT] applicable to an offence committed under [SECTION] of the 1947 Act. Relevant paras from the judgment read as under :
"19. After the amendment in the [ACT] it is apparent that the Legislature with full conscience departed from the previous provisions of [SECTION] of 1947 Act thereby making it sure that all the provisions of [ACT] are not made applicable to the [ACT]. Only the provisions whenever confiscation has to be applied then [ACT] provisions would be invoked. Therefore, no reliance on the provisions of [SECTION] or for that matter [SECTION] of the [ACT] can be taken help of. [SECTION] of the [ACT] seemingly stipulates adjudication before confiscation and thereafter prosecution under [SECTION] but not before that. Hence, reading of [SECTION] of the [ACT] and [SECTION] of the [ACT] nullifies the arguments Mr. [ENTITY] that these are parallel proceedings.
22. A comparison of [SECTION] of [ACT] with [SECTION] of the [ACT] would show that all the provisions of the [ACT] under [SECTION] of the Act of 1947 were applicable and were to operate in case there was any violation or breach of the prohibitions under the [ACT]. But after the amendment applicability of all the provisions of the [ACT] have been given up. In this regard, I am supported by the decision of the Supreme Court in the case of The [PRECEDENT]. Considering the language of [SECTION] of the [ACT] and [SECTION] of [ACT] the Supreme Court observed in that case that there was no scope for any argument that there has been any incorporation of the provisions of the earlier statute in the later. Similarly in the present case, there is no provision for incorporation of the [ACT], which was under [SECTION] of the [ACT] getting attracted in the [ACT].
23. After analysing the provisions of both the Act and relying on the observations of the Supreme Court and the facts stated above, I find that the complaint filed in this case under the [ACT] is not sustainable. Accordingly, the complaint in question is quashed and the proceedings initiated on the basis of that complaint are ordered to be dropped."
10. In view of the law laid down by this Court in Dr.[PRECEDENT]'s case (supra), it is a settled law that [SECTION] of the [ACT] made all the provisions of the [ACT] applicable to an offence committed under [SECTION] of the 1947 Act. An amendment was brought into force vide [SECTION] of the Act of 1972 vide which the Legislature omitted the applicability of all the provisions of the [ACT]. Provisions of the [ACT] are now applicable only for confiscation and not for prosecution. [SECTION] of the [ACT] stipulates that if any person contravenes the provision of [SECTION], he shall be liable for punishment without prejudice to the action of confiscation or penalty for which he has rendered himself liable under the [ACT]. A reading of [SECTION] shows that confiscation and penalty has to be under the [ACT], whereas the punishment and prosecution has to be under the [ACT] for breach of [SECTION] of the [ACT]. There is no force in the argument of the learned counsel for the petitioner that once the confiscation is done under the [ACT], all the provisions of the [ACT] would come into operation and the Customs department would get power to launch prosecution against the respondent. [SECTION] of the [ACT] clearly creates a bar with regard to the prosecution under the [ACT].
11. The judgments referred by the learned counsel for the petitioner in case of [PRECEDENT] (supra) and [PRECEDENT] (supra) are of no assistance to the petitioner inasmuch as the judgment in case of Dr.[PRECEDENT]'s case (supra) was applicable at the time of passing the order by the learned Additional Chief Metropolitan Magistrate and today as well. The learned counsel for the petitioner has argued that the said judgment has been challenged in Hon'ble Supreme Court by filing a Special Leave Petition, but he has failed to show that the judgment in case of Dr. [PRECEDENT]'s case (supra) has been reversed or any stay has been granted by the Hon'ble Supreme Court. Neither there was any reversal of the said judgment nor there was any stay by the Hon'ble Supreme Court either at the time of passing the order by the learned ACMM nor today as well.
12. In view of discussion made above, the order dated 16.11.2005 passed by the learned Additional Chief Metropolitan Magistrate is upheld.
13. The present revision petition is dismissed. File of the trial court be sent back.
[ENTITY], J.
March 27, 2015/ns