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2015 Supreme(Mad) 1359
HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
Blue Ocean Logistics Limited, Rep by Sarvesh Pratap Singh & Others – Appellant
Vs.
State represented by Inspector of Police – Respondent
Criminal Revision Nos. 44 & 45 of 2015 & M.P.Nos. 1 & 1 of 2015
Decided On : 17-03-2015
For the Petitioners:B. Dhanasekaran, Advocate.
For the Respondents: K. Srinivasan, Special Public Prosecutor.
The principle of double jeopardy and the application of different enactments for distinct offences.
Headnote:
Double Jeopardy - Criminal Offences - Customs Act, 1962, Indian Penal Code - Section 132, Section 135 of the Customs Act, 1962, Section 120-B r/w 420 and 420 r/w 511 IPC - 132, 135, 120-B, 420, 511
Fact of the Case:
The accused attempted to export fertilizer grade Potassium Chloride by misdeclaring it as 'Industrial Salt Chemical Grade'. The Customs Department and the CBI filed cases against the accused for different offences under the Customs Act and IPC.
Finding of the Court:
The court found that the offences under the Customs Act and IPC were distinct and separate. The court held that the accused could be prosecuted and punished under either or any of those enactments, but not be liable to be punished twice for the same offence.
Issues: The main issue was whether the accused could be prosecuted twice for the same offence under different enactments.
Ratio Decidendi: The court applied the principle of double jeopardy and held that the accused could be prosecuted and punished under different enactments for distinct and separate offences, but not be liable to be punished twice for the same offence.
Final Decision: The court dismissed the revision petitions and upheld the order of the Trial Court, finding no merits in the revisions.
1. The present Criminal Revisions have been preferred for setting aside the impugned order dated 28.11.2014 made in Crl.M.P.Nos.1551 of 2013 and 408 of 2014 in C.C.No.5261 of 2013, wherein the discharge applications filed by A1, A2 and A3 under Section 239 Cr.P.C came to be dismissed.
2. The case of the petitioners is as follows:
(a) Acting on the intelligence that one M/s.Sharmi Exim Co., Chennai are attempting to export fertilizer grade potassium chloride (Muriate of Potash) by misdeclaring it as 'Industrial Salt Chemical Grade (Sodium Chloride)', a consignment of export goods covered under Shipping Bill No.3440204 dated 23.07.2009 kept in export godown of CFS - D.R.Logistics P Ltd., Minjur, Chennai was detained by the officers of the Docks Intelligence Unit (DIU), Customs House, Chennai on 27.07.2009 on a reasonable belief that the exported has misdeclared the description of the goods in the consignment in order to smuggle it out of the country. So, the samples of the goods were taken and sent for analysis. On analysis, the samples were found to be 'Agricultural Grade - MOP (Muriate of Potash)'. Further, the FOB value was declared as Rs.8,27,421/- whereas the Market value is Rs.39,42,400/-. The Muriate of Potash (MOP) is a restricted item for export as per para 207 of the Foreign Trade policy 2009 - 2014 read with notification No.30 (RE-2003) / 2002-2007 dated 28.01.2004 issued by the Director General of Foreign Trade and is permitted for export only under license. Sharmi Exim Co., neither has a license for exporting Potassium Chloride (Muriate of Potash) - fertilizer grade, nor have they ever imported fertilizer grade Potassium Chloride. Further, they have not produced any certificate from the statutory auditors to the Department of Fertilizers that the quantity intended to be exported has been imported in the last six months and no concession/subsidy has been claimed. Thus, it appeared that Sharmi Exim Co., have attempted smuggling of fertilizer grade Potassium Chloride (Muriate of Potash), a restricted item for export, by way of false declaration. Hence, the Deputy Commissioner of Customs (Prosecution Unit) has filed a complaint. The said complaint was taken on file in C.C.No.72 of 2013 and C.C.No.961 of 2013 and the same are pending.
(b) On the other hand, based on source information, the CBI has registered a case in RC. 2/S/2013/CBI/SCB/Chennai on 30.01.2013 and after investigation has filed chargesheet against the petitioners herein as well as the other accused under Sections 120-B r/w 420 and 420 r/w 511 IPC in C.C.No.5261 of 2013 on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. While so, the petitioners herein viz., the accused nos.1, 2 and 3 had filed discharge applications under Section 239 Cr.P.C. The Trial court after considering the submissions made by either sides, dismissed the said applications made in Crl.M.P.Nos.1551 of 2013 and 408 of 2014 in C.C.No.5261 of 2013 vide impugned order dated 28.11.2014.
3. Challenging the impugned order, the learned counsel appearing for the revision petitioners would submit that on the basis of the source information, a case has been registered by the respondent/CBI against the petitioners herein as well as the accused A4 to A6 for an offence under Section 120-B r/w 420 and 420 r/w 511 IPC. The learned counsel for the petitioner would submit that the Deputy Commissioner of Customs (Prosecution unit) has also preferred a complaint against these petitioners and the other accused stating that the first petitioner had attempted to export Potassium Chloride (MOP) by mis-declaring the same as 'Industrial Salt' Chemical Grade (Sodium Chloride) and thereby the petitioners had committed offences under Section 132 and 135 of the Customs Act, 1962 r/w the Fertilizer (Control) Order, 1985 and The Essential Commodities Act, 1955. Further more, for the very same consignment, the respondent herein had also filed the chargesheet. So, the learned
