IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 1105 of 2011() ------------------------- CC.120/1991 of ADDL.CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCE), ERNAKULAM .................... PETITIONER(S): ACCUSED NO.3 --------------------------- K.V.ISMAIL, S/O.KUNHIMAYAN HAJI, KINAKKOL VAILAPATTIL HOUSE, IRIKKOOR, KANNUR DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): COMPLAINANT -------------------------- THE UNION OF INDIA, REPRESENTED BY THE ASSISTANT COLLECTOR, SPECIAL CUSTOMS PREVENTIVE DIVISION, CALICUT-THROUGH THE ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031. PUBLIC PROSECUTOR SHRI JAIBY PAUL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2011, ALONG WITH CRL.MC NO.1110/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. Nos.1105 & 1110 of 2011 -------------------------------------- Dated this the 6th day of April, 2011. ORDER Petitioner is accused in C.C.Nos.120 of 1991 and 30 of 1997 of the court of learned Additional Chief Judicial Magistrate (Economic Offence), Ernakulam (for short, “the ACJM”), both for offence punishable under Section 135(1)(i) of the Customs Act (for short, “the Act”). In Crl.M.C.No.1105 of 2011, petitioner is the third accused in C.C.No.120 of 1991. In Crl.M.C.No.1110 of 2011 petitioner is the fourth accused in C.C.No.30 of 1997. There are other accused also involved in the case. According to the petitioner, he has been falsely implicated in the case merely based on a statement allegedly given by him and recorded under Section 108 of the Act. It is contended that apart from the said statement there is no other material to implicate petitioner, no recovery having been effected from him. Learned counsel submitted that in C.C. No.30 of 1997 trial is going on and in C.C.No.120 of 1991 trial is over. Petitioner being abroad, could not take part in the trial. 2. Though there is a request to quash the proceeding, I am not inclined think that at this stage and since it is for the trial court to decide whether statement of petitioner was recorded under Section 108 of the Act and if so, that is sufficient to enter a conviction having regard to the facts and circumstances of the case it is necessary to quash proceeding against petitioner. Crl.MC Nos.1105 & 1110/2011 2 3. Learned counsel requested that the non-bailable warrant issued to the petitioner may be kept in abeyance until learned ACJM decides to frame charge against petitioner in case materials on record are found sufficient to do so. Learned counsel submitted that petitioner does not dispute his identity and is prepared to file affidavit in the trial court in that line. Petitioner apprehends his remand in case he appears before learned ACJM. It is also submitted that though the case against petitioner in both the cases is split up, no separate number has been assigned nor are the cases included in the Long Pending Register. 4. Having regard to the circumstances stated by learned counsel I am inclined to direct that the non-bailable warrant in both the cases will remain in abeyance for a period of one month from this day or till petitioner appears before the learned ACJM, whichever is earlier. Since the complaint has already been taken on file and cognizance is taken, I do not think that custody of petitioner is essential. But that is a matter which the learned ACJM has to decide. It is open to the petitioner to move necessary applications for bail, recall off warrant and for exemption from personal appearance. Petitioner may give copy of the applications to the Law Officer in charge of case in the court below in advance of his appearance in that court. Learned ACJM shall dispose of the applications as expeditiously as possible having regard to all relevant facts and circumstances. Resultantly these Criminal Miscellaneous Cases are disposed of in the following lines: Crl.MC Nos.1105 & 1110/2011 3 i. Non-bailable warrant issued to the petitioner in C.C.Nos.120 of 1991 and 30 of 1997 of the court of learned Additional Chief Judicial Magistrate (Economic Offence), Ernakulam (or its split up cases as the case may be) will stand in abeyance for a period of one month from this day or till petitioner appears before the learned ACJM, whichever is earlier. ii. In case any such applications as above stated are filed before learned ACJM, those applications are to be disposed of having regard to the facts and circumstances of the case and in the light of the observations made above. iii. It is open to the petitioner while seeking exemption from personal appearance until charge is framed to file affidavit along with the application that he will not dispute identity and that he will appear through counsel in the pre- charge proceedings. THOMAS P.JOSEPH, Judge. cks