IMPORTANT POINT
A penal statute must receive strict construction, but the purpose for which the statute was enacted should not be lost sight of.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. This appeal is directed against a judgment and order dated 25th January, 2007 passed by a learned Single Judge of the Delhi High Court in Crl. M.C. No.4594 of 2003 dismissing an application under Section 482 of the Code of Criminal procedure filed by the appellant and three others.

3. A complaint was filed by the Intelligence officer attached to the Directorate of the Revenue Intelligence alleging that the accused named therein committed offences punishable under Sections 132 and 135 of the Customs Act, 1962 (for short the Act).

4. One A.K. Saxena figured as accused No.5 therein. He was a Customs Officer. He floated various firms in false and fictitious names. Duty drawback amount was claimed for alleged export of readymade garments by the said firms under certain assumed names to the extent of Rs.1,04,62,596/- Appellant herein alongwith others Pawan Kumar, Govind Jha, Radhey Lal made statements under Section 8 of the Act corroborating the allegations made against them that they had conspired with each other in regard to export of inferior quality of readymade garments which had been over-invoiced.

5. Cognizance of the said offence was taken by the Additional Chief Metropolitan Magistrate on 16th April, 2003. An application for discharge was filed inter alia by the appellant herein which was dismissed by the learned trial judge by his order dated 1st October, 2003.

6. An application for quashing of the said order was thereafter filed before the High Court. One of the contentions raised before the High Court was that Shri A.K. Saxena being a Customs Officer could not have been proceeded against under Section 135 of the Act and, thus, the complainant committed a serious illegality in exercising his power of arrest as against him which is not contemplated under Section 104 thereof. It was further more contended that the allegations made in the complaint petition even if taken to be correct in its entirety do not disclose an offence under Section 135 of the Act.

7. Indisputably, Section 135 of the Act was amended in the year 2003. The High Court having regard to the explanatory notes to the legislative changes as per the Budget Bulletin 2003 opined that amendment being clarificatory in nature will have retrospective effect.

8. Dr. Ashutosh, learned counsel appearing on behalf of the appellant would submit that duty drawback having not been included in Section 135 of the Customs Act prior to its insertion in 2003, the impugned judgment cannot be sustained. It was urged that by insertion of the said provision, a new type of offence was created and thus, it cannot be held to be clarificatory in nature. It was urged that if importation of some goods are prohibited, no duty could be paid thereon and in that view of the mater the provisions of Section 135 of the Act will have no application.

9. Mr, G.S. Vahanvati, the learned Solicitor General of India, on the other hand, would submit that the allegations made as against the appellant being covered by Section 135(b)(i) of the Act, the complaint petition discloses an offence within the meaning of Section 135 of the Act.

10. Before embarking on the rival contentions raised at the Bar, we may notice the relevant provisions of the Customs Act, as they stood prior to enactment of Customs Amendment Act, 2003.

Section 2(33) of the Act defines “prohibited goods” as under :-

“2.(33) “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with.”

Section 11 empowers the Central Government by issuing a Notification to prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance as may be specified in the Notification, the import or export of goods of any s