IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 Crl.Rev.Pet.No. 441 of 2011() ------------------------ C.M.P. NO. 4566/09 IN CC.28/2002 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT (E.O), ERNAKULAM ........... REVISION PETITIONER / PETITIONER / 2ND ACCUSED : -------------------------------------------------------------------------------- C.K.SANTHOSH, S/O.KUNJIRAMAN, SAJITHALAYAM, A.R.NAGAR, MALAPPURAM. BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENTS / COMPLAINANT : ------------------------------------------------- 1. UNION OF INDIA, REP. BY THE ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA, ERNAKULAM. 2. K.ASHOKAN, ASST. COMMISSIONER, SPECIAL CUSTOMS PREVENTIVE DIVISION, KOZHIKKODE-673001. (*DELETED) *THE NAME K.ASOKAN IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 17/2/2011 IN CRMA.1351/2011. BY ADVS. SRI.T.P.M.IBRAHIM KHAN, ASGI SRI.P.PARAMESWARAN NAIR, ASGI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.Rev.Pet.No. 441 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE AI : COPY OF SECTION 108 STATEMENT OF 1ST ACCUSED - E.M. ABDUL NAZER. ANNEXURE AII : COPY OF AFFIDAVIT SWORN TO BY THE ADDL. COMMISSIONER. ANNEXURE AIII : COPY OF SANCTION ORDER PASSED BY THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CALICUT BY ORDER DTD. 23/1/2002. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.S. TO JUDGE Mn S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.441 OF 2011 ----------------------------------------- Dated this the 25th day of July 2011 ORDER Second accused in C.C 28/2002 on the file of Additional Chief Judicial Magistrate Court (E.O), Ernakulam has filed this revision challenging the order passed by the learned Magistrate declining his plea for discharge canvassed under Section 245(2) of the Code of Criminal Procedure. In the aforesaid case, petitioner/second accused is being prosecuted for the offences under Sections 132 and 135 of the Customs Act 1962. The gist of the prosecution case is that an unaccompanied baggage sent in the name of the 2nd respondent was seized by the Superintendent of Customs Calicut on 25-03-1998 on detecting that it contained contraband goods including 86 cellular phones, which are stated to have been illegally imported making use of the passport of the 2nd respondent. The customs authorities, it is alleged, also found affixing of false immigration seal in the passport of the 2nd respondent for facilitating the transport of the contraband items in the unaccompanied baggage sent in his name. Further, it is alleged that the 2nd accused has given false baggage description to the effect that household articles are sent in his baggage, in which contraband cell phones were found kept concealed inside the cabin covers. A statement from the 2nd respondent is also purported to have been recorded by the customs officials, in which it is alleged, he has admitted of his complicity Crl.R.P No.441/2011 - 2 - in the offences imputed. Initially the aforesaid crime was registered against the 1st accused alone, but, later, the petitioner/2nd accused was also implicated as an additional accused in the case. On his appearance, the petitioner/2nd accused has moved an application seeking for his discharge contending that he has been falsely implicated in the crime on account of the proceedings initiated by him before this court including steps for taking contempt action against some of the customs officials for retaining his passport and its nonrelease despite orders for its release, passed in his Original Petition. After directions issued by this court in the contempt proceedings, then alone, his passport was released through the Magistrate Court, was the case of the petitioner. The aforesaid circumstances were highlighted by the petitioner/2nd accused for his discharge moving the application as aforesaid under Section 245(2) of the Code of Criminal Procedure. That application, after being considered on its merits with reference to the materials tendered by the prosecution and hearing the prosecutor and also the counsel for the petitioner, was turned down by the learned Magistrate under the impugned order. Propriety, legality and correctness of that order is impeached in this revision. 2. I heard the counsel on both sides. Having regard to the submissions made by the counsel on both sides with reference to the Crl.R.P No.441/2011 - 3 - impugned order and also the scope and ambit of Section 245(2) of the Code, which enables an accused proceeded with respect to an offence demanding warrant trial, it is apparent that the grounds now raised by the petitioner/2nd accused to seek his plea of discharge are essentially grounds of defence and such grounds will not entitle him to contend that the charge levelled against him by the prosecuting agency is groundless. If only the Magistrate is satisfied, that too for the reasons to be recorded, that the charge imputed against the accused is groundless, then only an order of discharge under Section 245(2) can be passed. Since the petitioner had filed a Writ Petition and initiated contempt proceedings against the customs officials his challenge that the case has been falsely foisted against him, is not a conclusion which the learned Magistrate can form at this stage, to hold that the charge against the petitioner/2nd accused is groundless. Challenge against the order of the Magistrate under such circumstances is devoid of any merit, and the revision is dismissed. vdv S.S.SATHEESACHANDRAN, JUDGE