IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 7646 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SURESHCHANDRA DANDI DAYAL AGRAWAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 7646 of 2000 MR CHUDGAR for NANAVATI ASSOCIATES for Petitioners No. 1-6 MR PANCHOLI Ld. APP for Respondent No. 1 MR DN PATEL for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 20/02/2002 ORAL JUDGEMENT Heard Mr. Chudgar learned counsel for Nanavati Associates for petitioners, Mr. VM Pancholi learned APP for respondent no. 1-State of Gujarat and Mr. DN Patel, learned Senior Standing Central Govt. Counsel for respondent no. 2. Learned counsel Mr. Chudgar learned counsel has taken me through the basic contentions raised by the petitioners. By invoking the jurisdiction of this Court under sec. 482 of CrPC petitioners have prayed for quashing the criminal complaint filed in the Court of Learned Chief Judicial Magistrate, Rajkot being Criminal Complaint No. 848/84 on the ground that the same is vague, imprecise and lacking in material particulars and is not tenable in eye of law. It is contended that the basic averments made in the complaint itself does not set out any criminal offence or its ingredients for which the petitioners or any of them could be convicted by the court. Basic facts stated by the petitioners are in para-3 to 6 of the petition and for the sake of convenience, it would be proper to quote the averments as they are, which reads as under: "3. The petitioners are residents of Indore in Madhya Pradesh and at the relevant time in the year, 1980, were having Refinery for refining silver at Indore. In and around 1980, the prices of silver were lower in Indore compared to that in Rajkot, where there was a huge market of silver bullion. The petitioners as a part of their business and commercial transactions came to Rajkot from Indore with silver bars, for selling them in the market at Rajkot. 4. On 1.11.1980 at about 9.00p.m., the officers of Customs Department, Rajkot, intercepted the two cars, in which the present petitioners were traveling and were coming to Rajkot from Indore. The interception was done about 10 Kms away from Rajkot enroute to Rajkot from Indore. The Officers of the Customs Department, on searching the cars, found 9 bars of silver from each car and made an allegation that the petitioners were trying to smuggle the said silver in contravention of Section 135 of the Customs Act, 1962, and are therefore liable to be prosecuted and punished under the said provisions. The said silver bars were seized by the Customs Department, under section 110(1) of the Customs Act on the ground that the same are liable to be confiscated under Section 113(c) of the said Act. 5. Accordingly, after seizure of the said silver bars, a criminal complaint was filed in the Court of Chief Judicial Magistrate, Rajkot bearing Criminal Case No. 848/84, after a much and unexplained delay of four years. A copy of the said complaint is annexed hereto and marked as Annexure-A. In the said complaint, it is alleged that the petitioners were not having transit vouchers for the said silver bars and that the said cars had passed through Bagodara while enroute to Rajkot, which is falling within the specified area and therefore, the petitioners were sought to be prosecuted and punished under sec. 135 of the Customs Act. 6. The petitioners state and submit that as such, no case for prosecution under Section 135 of the Act is made out on the face of it. It is submitted that, as stated earlier, the said silver bars were brought by the petitioners from Indore to Rajkot for their sale as a purely commercial transaction. It was only for the purpose of filling up petrol that the said cars were brought at Bagodara and thereafter the said cars were travelling to Rajkot. The said silver bars were meant to be sold at Rajkot, which is admittedly not within the specified area. It is submitted that, since neither Indore, which was the point of origin, nor Rajkot which is the point of destination, was within the specified area, no transport voucher was necessary under the provisions of the Customs Act. It is further submitted that though Bagodara, which is falling in specified area, is enroute from Indore to Rajkot, the transport voucher is not required for carrying silver, since neither the point of origin nor the point of destination was within the specified area, as has been held in the decision of this Hon'ble Court reported in 1981 Cr.L.J. 684. Thus, as such, no offence punishable under Section 135 of the Customs Act is made out." It is specifically contended by the petitioners that they were detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ( for short "COFEPOSA") and the said detention order was challenged by the petitioners before this Court by invoking writ jurisdiction. The Special Criminal Application has been heard by the Division Bench of this Court (Coram: B.J. Diwan, C.J. & N.H. Bhatt,J., as they then were ) and the same has been allowed vide order dated 3/7.7.1981. Mr. Chudgar has rightly pointed out the relevant part of the said decision which is available on record vide Annexure-B, page 8. It is not a matter of dispute that this special criminal application is qua very transaction to which prosecution has been filed before the Chief Judicial Magistrate, Rajkot. By the said common judgment, this Court has disposed of all six special criminal applications. By conclusive paragraph of the said decision of the Division Bench of this Court, has ruled that: "Hence, the orders of detention passed against these four detenue were without any background material and these orders were such as on reasonable person could even have passed knowing the provisions of law. Under these circumstances, each of these four special criminal applications is allowed and the orders of detention passed against these four detenue are quashed and set aside." The observations made by this Court while dealing with the above special criminal applications and the set of facts taken into account by the Division Bench are relevant for the purpose of this very judgment and Mr. Chudgar has mainly placed reliance on these relevant observations. Considering the decision in the case of Devendrabhai Jasubhai Patel v. The State of Gujarat, 1981 Cri. L.J. p. 684, this Court, while dealing with Special Criminal Applications, has said that, "it had been held by this High Court in Devendrabhai Jasubhai Patel v. The State of Gujarat, 1981, Cri.L.J. p. 684, that the "transport" in section 11-k(1) means taking the goods or carrying the goods from a point of origin to a point of destination. Looking to the use of the words 'from', into or 'within' it is obvious that either the point of origin or the point of destination or both must be within the specified area and it specified goods are transported without any voucher in that behalf as contemplated by section 11-k(i), the not, if it is meant for fraudulent evasion, would be punishable under Section 135 of the Customs Act. It was held in that behalf: "Merely because enroute Surat from Delhi the car carrying the silver bars without cover of transport voucher passed through another specified area, namely, Bhroach, it did not mean that at Bhroach there was no violation of Section 11-k(i) would occur, if (n), there was no continuous specified area from Bhroach to Surat or (b) after leaving the specified area of Bhroach the car entered the specified area in which Surat was situated. Until either of these two events occurred, it could not be said that more or ....silver bars at Bhroach which was within the specified area in the course of journey from Delhi to Surat would constitute an offence because at Bhroach there being no point of destination in the specified area of Bhroach, there was neither transporting from nor into nor within the specified area of Bhroach." In view of this decision, it is obvious that since neither, Indore which was the point of origin, nor Rajkot which was the point of destination, was within specified area, no transport voucher was necessary for the purpose of section11-k(i) which falls in Chapter-IV-B and no transport voucher was required for the purpose of carrying silver bars through the specified area of Bagodara because neither the point of origin nor the point of destination was within the specified area. Thus, the first circumstances of the two cars halting at Bagodara on route from Indore to Rajkot, the halt being for the purpose of taking petrol from petrol pump it cannot be said that there was smuggling as defined by the provisions of the Customs Act by the mere factor of the halt at Bagodara for the purpose of taking petrol." It has been further held and observed by this Court that: "merely transporting goods from Indore which is not within specified area or to Rajkot which is not within specified area and selling the goods at Rajkot with knowledge that it was likely that the goods which they were selling would be smuggled out of India, would not amount to smugglling on the part of either Sureshchandra or Dilipkumar. Thus, there was no material before the detaining authority to show that either Sureshchandra or Dilipkumar or Pavankumar or Vimalkumar or any one of these four detenue was engaged in smuggling silver out of India as defined in the Act, no action of others would have renders them liable for being prosecuted under the Customs Act". The statement of Mangilal recorded by the Authority also has been discussed and analysed by the Division Bench while dealing with the detention matters. I agree that the statement of the accused or the say person under interrogation can be used as a piece of evidence during the course of trial in view of the relevant provisions but the ingredients of criminality and offence were found not existing when the facts under which the petitioners are sought to be prosecuted have been found non offending by the Division Bench of this Court, it would not be justified to relegate the present petitioners to under-go the formality of criminal trial after lapse of several years. Mr. Chudgar during the course of submissions has specifically pointed out that the above decision of this Court was not challenged by the department, on the contrary, the goods which was confiscated by the department in the very transaction was ordered to be released by the order of CEGAT dated 22/29.12.1989, Annexure-C, page 28 while deaing with Order-in-Original bearing No. VIII/10-4/Collr/81 dated 6.6.83. This order also not challenged. Annexure-E is the copy of the decision of the department not to initiate further proceedings before the higher forum against the said decision recorded by CEGAT. It is rightly submitted that two decisions of judicial authorities completely support the case of the present petitioners. So, the criminal complaint and proceedings initiated in pursuance thereto, or in reference to very transaction or incident, shall have to be turned down. In the result, this application is allowed. The Criminal Complaint No. 848/84 pending in the Court of Chief Judicial Magistrate, Rajkot is hereby quashed and set aside. Subsequent proceedings drawn by the Court automatically goes. Rule is made absolute accordingly. (C.K. BUCH, J.) mandora/