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KERALA HIGH COURT
A. Hariprasad, J.
Naresh Goyal, Chairman, M/s. Jet Airways (India) Pvt. Ltd. Mumbai & Others —Petitioners
versus
The Circle Inspector of Excise & Others —Respondent
Cri. MC. Nos. 1095, 1495 & 1496 of 2010
Decided on 12.4.2013
For the Petitioners:M.K. Damodaran, Senior Advocate, Alan Papali, Sojan Micheal, Gilbert George Correya, V.S. Boban, Mrs. Dhanya P. Ashokan, N.N. Arun Bechu, Advocates.
For the Respondents: Viju Thomas, Public Prosecutor.
IMPORTANT POINT
No offence could attract when liquor is moved from one bonded warehouse to another bonded warehouse under the authority of the proper officer of the Customs for two reasons: (i) it cannot be treated as an import under Section 6 or transport under Section 10 of the Abkari Act, and (ii) the owner of goods or his representative, while transporting liquor from one Customs bonded warehouse to another does not come into possession of the goods at all and therefore question of attracting an offence punishable under Section 55(a) of the Abkari Act does not arise.
Headnote:Kerala Abkari Act—Sections 6,10 and 55(a) —Customs Act, 1962—Sections 57, 58, 59, 62 and 67—30 cases of champagne imported by petitioners were being transported from Panvel (Mumbai) to Cochin (Kerala) on a valid bond to bond transfer permit issued by Custom Authority—Criminal case registered as no liquor was to be imported unless permission of Govt was obtained and unless duties, taxes and fees etc., had been paid—Petition for quashing FIR and proceedings—Goods werehoused under Customs Act would remain in custody of proper officer and owner of goods would get possession of same only when formalities prescribed under Section 68 of Customs Act were complied with—Since liquor was being taken from one warehouse to other warehouse there was no illegal importing or transport or even no conscious possession of good could be said by petitioners—Criminal proceedings were liable to be quashed.
Held: It is evident that the importer of any warehoused goods gets possession in the legal sense only on presentation of a bill in the prescribed form and on payment of import duty leviable on such goods and all other payments mentioned in the provision. After complying with these formalities, an order for clearance of such goods will have to be made by the proper officer for home consumption of the goods. Section 71 of the Customs Act prescribes that no warehoused goods shall be taken out of a warehouse except on clearance for home consumption as provided by the Customs Act. All these provisions in the Customs Act will clearly establish that the goods warehoused under the provisions of the Customs Act remain in the custody of the Proper officer and the owner of the goods does not get possession of the same, unless formalities prescribed under Section 68 of the Customs Act have been complied with. There is no case for the prosecution that before the liquor was seized, owner of goods had paid import duty and other charges on the goods and actually obtained clearance of the goods from the proper officer of the Customs. Therefore, on a conjoint reading of the aforementioned Sections in the Customs Act, 1962 with Sections 6, 10 and 55(a) of the Abkari Act the only possible deduction is that the petitioners were neither importing liquor against the provisions of Section 6 of the Abkari Act nor transporting the same in violation of Section 10 of the Abkari Act. By no stretch of reasoning it can be said that the petitioners were in possession of the goods when it was in transit. Since the petitioners were not illegally importing or transporting or possessing the goods, offence punishable under Section 55(a) of the Abkari Act is not attracted. Therefore, foundation of the prosecution case is found to be legally unsustainable. (Para 17)
JUDGMENT
A. Hariprasad, J. — These three petitions filed under Section 482 of the Code of Criminal Procedure (for short, “Cr.P.C.”) arise out of Crime No. 11 of 2008 of Excise Range Office, Ernakulam, which is pending in committal proceedings, C.P.No.6 of 2010 in the Court of the Judicial First Class Magistrate-II, Ernakulam. Petitioners are accused 6 to 8 in the case. Offences alleged against them in Annexure-XII final report are under Sections 6, 10 and 55(a) of the Kerala Abkari Act (Act 1 of 1077) (for short, “Abkari Act”). Cri.M.C.No.1095 of 2010 is taken as the leading case for clarity and convenience.
2. 8th accused is the petitioner in Cri. M.C. No.1095 of 2010. He is the Chairman of M/s. Jet Airways (India) Pvt. Ltd. (for short, “Company”). 7th accused, at the relevant time, was working as the General Manager of Warehouse and Distribution of the Company. 6th accused then was working as the Purchase Manager in the Company. Company is operating international flight services from Cochin too. For serving ‘champagne’ (a group of wine-mild alcoholic drink) to the passengers travelling in the international flights, Purchase Manager of the Company placed orders to M/s. Moet Hennessy India Pvt. Ltd. for purchasing 30 cases of champagne on specific conditions. After complying with all the formalities, 30 cases of champagne were imported. While transporting the goods from, Panvel, Mumbai to Cochin on a valid bond to bond transfer permit issued by the Customs, it was intercepted by the 2nd respondent. Thereafter, the goods were handed over to the 1st respondent. 1st respondent in turn, registered the abovesaid crime. Petitioners allege that both the authorities did not verify the valid documents produced at the time of seizure. Seizure, registering of crime and all subsequent proceedings, according to the petitioners, are vitiated by mala fides, absence of jurisdiction and ultra vires of their authority.
3. Annexure IX, final report was filed by the Excise Circle Inspector, Ernakulam before the learned Magistrate. Initially there were only three accused. Subsequent to the filing of Annexure IX final report, the Excise Inspector filed a report before the learned Magistrate seeking permission to conduct further investigation in the case. That is Annexure X. Learned Magistrate as per Annexure X(a) order, granted permission. Pursuant to that, further investigation was conducted and Annexure-XI, report was filed. As per this report, the investigating agency added accused 4 to 8 in the crime and deleted Section 55(i) of the Abkari Act from the original report. Annexure XII is the final report, which is sought to be quashed by the petitioners.
4. Charge that is now made against the petitioners is in the following manner: As instructed by the 4th accused (consignor), the 5th accused (Operation Executive, M/s. Green Freight Carriers) transported Foreign made foreign liquor from Panvel, Mumbai to Cochin by Mangala Express train through its agent, 2nd accused. Goods were cleared from the South Railway Station, Ernakulam by the 3rd accused (clearing agent) and arranged transport facility through 1st accused. All the above acts were done for the 6th accused (consignee Purchase Manager of the Company), the 7th accused (General Manager of Warehouse and Distribution of the Company) and the 8th accused (Chairman of the Company). Thus, all the accused have committed offences punishable under Sections 6, 10 and 55(a) of the Abkari Act.
5. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
6. Legal questions that crop up for determination are the following:
(i) Whether removal of foreign made foreign liquor from one bonded warehouse in Maharashtra to another bonded warehouse in Angamali, Kerala after complying with all formalities in Chapter IX of the Customs Act, 1962 can be termed as illegal import or transport punishable under the Abkari Act (Act 1 of 1077)?
(ii) When goods are removed from one bonded warehouse to
