1987 Supreme(Bom) 26

IN THE HIGH COURT OF BOMBAY
V.S. Kotwal, J.
Rajnikant Maganbhai Patel.... Petitioner.
Versus
Assistant Collector of Customs, Preventive
Dept. another.... Respondents.
Criminal Writ Petiton No. 702 of 1986, decided on 19-1-1987.
Advocates appeared :
K.M. Desai, Madhu Patel and Tushar Shah, for petitioner.
A.R. Gupte, for the Customs Department, respondent No. 1.
S.S. Keluskar, P.P., for State-respondent No. 2.

Headnote:Section no -Customs Act, 1961-Section 135 (1) (a) (ii)-Foreign Exchange Regulation Act, 1973 Section 13 (a)-Continuing conspiracy to acquire and export foreign exchange-Offence of-A person, merely because of being servants can not be charged as co-conspirator indulged in single conspiracy.

       Even assuming otherwise at least in so far as the statement of the petitioner himself is concerned, which admittedly has been retracted and thereby narrowing down further its evidentiary value. required adequate corroboration, which is missing in the instant case, which by itself would not justify to discard the said statement against the maker at this stage, and even taking the recitals therein which are canvassed by the prosecution as their case at the maximum, still the order of issuing process against the petitioner would be equally assailable. Some of the salient features which are quite relevant to the context of the controversy are apparent even as per the prosecution case and therefore, it would be the proper point of time to consider the same while considering the case the petitioner. The first as stated is that the petitioner is only an employee of the said Travelling Agency conducted by accused Nos. 1 and 4.

       He is admitted posted in Bombay and not at Ahmedabad and he is not shown to have been at Ahmedabad at any relevant time when any transaction was effected including the one alleged involving accused Nos. 1.

       5 and 6 on 24th and/or 25th of February 1985. There is also nothing even to inferentially suggest that he could have at least the knowledge of any such transaction through any source. Even the instructions given to him as to what he was supposed to do in the said room of Ambassador Hotel do not raise his status any higher than that of a mere employee, because he was armed with the directions to keep the guard an the suit cases and attend to the phone calls, which acts by themselves clearly suggest his capacity only as the said employee and to do only such acts and nothing higher than that. Even assuming that he could be a man of confidence of accused No. 1, still that confidence was reflected only in that restricted field of guarding the suit cases and attending to the phone calls and ultimately paying Indian Currency to Millan. Amongst the employees or the servants he may be more trusted but it cannot be confused to be equated to mean that he could be a participant in the entire activities or even could have been posted with the knowledge about the so-called activities, since his acts could have been performed without having any knowledge whatsoever about the real nature of the transaction. Significantly he is not even inferentially alleged to have accompanied accused Nos. 5 and 6 when they are supposed to have acquired the Foreign Currency in the shape of U.S. Dollars from Millan. There is also nothing to indicate that he was specifically informed by accused Nos. 5 and f about the purpose of their mission or about their going to Millan and that too for the purpose of purchasing Foreign Currency. He is not suggested to be acquainted or associated with Millan any time in the past. Further eve& according to the prosecution the suit case which he was supposed to guard did not contain any Foreign Exchange but contained exclusively Indian Currency and that there is nothing to indicate that he knew exactly as to how much, amount was contained in that suit case and even assuming otherwise still that by itself would not be a factor against him as his Master or somebody on his Masters behalf possessing such large amount may not be an unusual feature so as to raise suspicion. Further the amount which he was directed to pay to Millan was also not in the shape of Foreign Exchange but was exclusively in the form of Indian Currency. Significantly beyond paying the said amount of Indian Currency as per directions to Millan he did nothing. The significance further lies in the fact that even according to the prosecution it is not at that stage and at that time that any Foreign Exchange was given by Millan to accused Nos. 5 and 6 or to the petitioner, hut according to the prosecution, the so called transaction of purchase of Foreign Exchange was complete between accused Nos. Sand 6 and Millan even prior thereto in which the present petitioner did not figure at all. Even the statements of the petitioner and accused Nos. 5 and 6 do not implicate the petitioner in that behalf. Thus even as per the statement of the petitioner as also as per the prosecution case it is subsequent to the transaction between accused Nos. 5 and 6 and Millan that the present petitioner was asked to pay an amount of Rs. 4,00.000/- to Millan. It is true that his statement suggests as disclosed in the complaint that he made the said balance payment to Millan for the Foreign Exchange that was acquired by accused Nos. 5 and 6 from Millan and it further indicates that accused No. 1 on telephone from Ahmedabad enquired with him in the hotel-room whether or not accused Nos. 5 and 6 had purchased Foreign Exchange. The implication of this statement inclusive of this so-called admission falls very much short of the main aspect of the prosecution case.

       The proceeding deserves to be quashed against the petitioner who is a mere employee and acted in that capacity only and that too lent his services religiously and faithfully as directed without anything more. There is no charm in asking him to go back to the trial and to extend the benefit to him at a later stage, even though the said inference and the benefit is available in his favour at the threshold itself. The contention on behalf of the prosecution that the petitioner can press for discharge at the later stage of the proceeding is too rigid and artificial to be accepted. This is also not one of those cases where the prosecution could contend that the accused can well bring all these features to the notice of the trial Court and get appropriate order of discharge as it can be done at any stage of the proceeding, because herein it is not as if that the Magistrate merely issued process without considering anything, but the Magistrate very much address himself to that aspect as he himself wanted to find out whether it is a case for issuance of process and therefore he recorded a speaking order. This, therefore, furnishes additional ground to justify interference at this stage itself.

       Section 482-Inherent powers of High Court-Order of issuance of process held as unjustified-Good ground for High Court to step in under its inherent powers to rectify such error.

       According to Supreme Court the High Court would be entitled to go into the reasons given by the Sessions Judge and to determine for itself whether the order is justified or not and "in the exercise of the whole some power under Section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceeding ought to be quashed". The Supreme Court further indicated that for determining about sufficiency of grounds to proceed the Court possesses comparatively wider discretion than in the exercise of which it can determine the question whether on the record, if unrebutted, a conviction is reasonably possible or not.

       A caution levelled about the limitations of the inherent powers while dealing with proceedings by Court and restricted field available before the trial Court while considering the question of sufficiency of ground to proceed along with the normal requirement to allow the proceeding to reach the logical destination need be present while dealing with such matters. However notwithstanding this caution, permissibility to quash a proceeding and the order of issuance of process even under the inherent powers or jurisdiction for the Magistrate concerned for not issuing process is well recognised in firm manner, In that field it would be necessary, to undergo the exercise to find out if a proper and prima facie case has been made out or not on the touch stone of these guide lines and the various illustrative categories carved out. The concept of prima facie case or sufficiency of ground contains assorted factor. If a case on facts has been made out which would manifestly indicate that the order of issuing process is wholly unjustified then the Court would step in even under the inherent powers to rectify the error in the interest of justice and also to prevent any further abuse of process of law or avoid waste of public money, energy and time.

       Just as a genuine litigation with all the requirements of making out a prima facie case being available on the face of the record cannot be short-circuited at the inception by embarking on an onerous obligation of appreciation as is done in the full dressed trial, equally a litigation which on the basis of the material as it stands in the context of these guidelines deserves to be discouraged, cannot be allowed to continue in the larger interest and the Court in that behalf cannot be a mere spectator or an on looker.

       Section 138-A-Existence of culpable mental stage on the part of accused/Presumption under.

       Under the provisions of Section 138-A of the Customs Act, where an offence requires a culpable mental stage on the part of accused the same would be presumed to exist where as it would be then for the defence to establish to the contrary and the culpable mental stage has been explained to include intention, motive, knowledge of a fact and belief in a fact. Restricting to the offence under Section 135 (1) (a) of the Customs Act, the prosecution must basically show that the accused is concerned in a fraudulent evasion of any prohibition as alleged in the instant case to formulate the offence, the knowledge is required so as to create the concept of knowingly concerned and therefore it is only this element of knowledge or mens rea that would be supplied through such a presumption under Section 138-A of the said Act, though the basic foundation of the Act showing concern in doing the acts in that particular evasion by itself must exist. Therefore, on the facts, it would not be proper to assume the foundation that the act of the petitioner alleged of have been committed on 25th of February 1985 by itself was such that he is not only concerned with the same but had the knowledge that the Foreign Currency acquired on that day was to be smuggled out or exported Subsequently by anyone. Though in a given case if prima facie tangible material exists for an offence under FERA vis-a-vis possession or acquisition of Foreign Exchange without the permission, the prosecution may seek to rely on the presumption available under Section 59 of the said Act,

       The two things are absolutely distinct or otherwise by expanding the scope of presumption to formulate an offence under the Customs Act about the subsequent attempt to export not by himself, it would tantamount to using the presumption for establishing the conspiracy and the object thereof and thus obviously would exceed the permissible limits and the legislative intent. In other words for certain offences under FERA vis-a-vis Foreign Exchange regarding its acquisition, possession etc. without the permission of the concerned authority, presumption under Section 59 may be invoked to formulate means rea and for certain offences under the Customs Act where the accused is alleged to be concerned in any manner with the contraband with the knowledge of the evasion of the prohibition, presumption under Section 138-A of the Customs Act about the mense rea can equally be invoked. However; the field of operation of both is distinct and especially in one knowledge restricts about there being no permission even it acquire or possess whereas in other the knowledge required is that the same is to be exported. One cannot confuse with the other. Factum of a criminal conspiracy which is an offence under other Act through which liability of the accused is sought to be established for the offence in question cannot be so presumed. So, also the acts of the .accused in connection with the offence cannot equally be Presumed, since such acts which itself should have the requisite nexus with the nature of the offence is the basic foundation while only the other requirement of mense rea behind such act is to be supplied through such presumption.

       Otherwise, through such process the whole of the offence with all its ingredients and requirements would be presumed and thereby displacing the fundamental burden of the presumption as also the proof thereunder. User of presumption in such a spacious manner would really be eluding and begging the issue. Consequently, therefore, the presumption if availableo would itself to the act of the accused getting himself involved or concerned in acquisition or purchase of Foreign Exchange with knowledge of its illegality in the mere purchase itself but it cannot be extended to spell out knowledge with the guilty mind that it was so done for being exported much late thereafter be cause the act, the knowledge and the presumption therefor will have to be restricted to that field when it cannot be said that the petitioner did everything for the purpose of exporting Foreign Exchange subsequently. Consequently, therefore, even assuming otherwise, still the presumption has an obvious limitation and cannot be stretched or expanded to cover under its sweep the main act of the so called conspiracy to export the Foreign Exchange which was three weeks thereafter while the petitioner may not be even aware of the ultimate object and thus formulation of offences under the Customs Act on the basis of the acts done earlier with themselves have limited implications. In any event, the validity of the argument advanced by obviously cannot be up-held on the facts this case.