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2018 Supreme(Mad) 4387
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. RAJAMANICKAM, J.
Stephen Stanislaus Rosario, S/o.Late S/Stanislaus - Appellant
Versus
The Assistant Commissioner of Customs Prosecution (Seaport, imports) Customs House, Chennai. - Respondent
Crl.O.P.No.2559 of 2013 and M.P.Nos.1 and 2 of 2013
Decided on : 28-09-2018
Advocate Appeared:
For the Appellant : Mr.R.Tyagarajan, Senior counsel for Mr.A.Ganesh
For the Respondent: Mr.N.P.Kumar Spl.Public Prosecutor for Customs
Headnote:
Code of Criminal Procedure - Section 482 - Customs Act, 1962 - Sections 132 and 135 - Quash the proceedings - Declared as Industrial Salt – Jurisdiction - According to respondent of Potash a restricted item for export is being smuggled out of India under guise of Industrial Salt. Hence, the officers of the Docks Intelligence Unit Customs House, Chennai, detained the export consignment of cargo declared as Industrial Salt lying at Container Freight Station Village , Chennai brought for export by Trading Company Pondicherry said consignment was seized under - At time of detention of the above mentioned consignment, it was ascertained that another consignment of cargo, declared as Industrial Salt covered under shipping bill No filed by same exporter – Held, Nothing in this Code shall be deemed to limit or otherwise affect inherent powers of Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of court - This Court in case of and. v. State of Uttar Pradesh AIR regarding inherent power of Court under Section 151 Code of Civil Procedure observed - Inherent powers of Court are in addition to powers specifically conferred on Court by Code - They are complementary to those powers and therefore it must be held that Court is free to exercise them for purposes mentioned in Section 151 of Code when exercise of those powers is not in any way in conflict what has been expressly provided in Code or against the intentions of Legislation - It is also well recognized that inherent power is not to be exercised in a manner which will be contrary to or different from procedure expressly provided in Code - In a Constitution Bench decision rendered in case of Chopra Seth this Court held that - Inherent jurisdiction of the Court to make orders ex debit justified is undoubtedly affirmed by Section 151 of Code but inherent jurisdiction cannot be exercised so as to nullify the provision of Code of Civil Procedure. Where Code of Civil Procedure deals expressly with a particular matter provision should normally be regarded as exhaustive - Intention of Legislature enacting Code of Criminal Procedure and Code of Civil Procedure law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision inherent power under Section 482 Code of Criminal Procedure or Section 151 Code of Civil Procedure cannot and should not be resorted to – Petition dismissed
ORDER :
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in C.C.No.11 of 2012 from the file of the learned Additional Chief Metropolitan Magistrate, EOI, Egmore, Chennai - 8 and quash the proceedings against the petitioner.
This petition has been filed by the Accused No.1 u/s.482 Cr.P.C., to quash the proceedings against him in C.C.No.11 of 2012 on the file of the Additional Chief Metropolitan Magistrate, EOI, Egmore, Chennai-8.
2. The facts are, in brief, as follows:
The respondent herein has filed a complaint against the petitioner herein and two others to punish them for the offences punishable under Sections 132 and 135 of the Customs Act, 1962 (hereinafter referred to as 'the Act').
3. According to the respondent, Muriate of Potash (MOP), a restricted item for export is being smuggled out of India under the guise of 'Industrial Salt'. Hence, the officers of the Docks Intelligence Unit (DIU), Customs House, Chennai, detained the export consignment of 125 Metric Tonnes of cargo declared as 'Industrial Salt' on 24.07.2009 lying at M/s. A.S.Shipping Container Freight Station, Numbal Village, Maduravoyal, Chennai 600 077, brought for export by M/s. Zandra Trading Company, Pondicherry. The said consignment was seized under a mahazar on 04.08.2009. At the time of detention of the above mentioned consignment, it was ascertained that another consignment of 50 MTS of cargo, declared as 'Industrial Salt' covered under shipping bill No.3429962 dated 14.07.2009 filed by the same exporter, M/s.Zandra Trading Company, Puducherry was lying at M/s.Viking container Warehousing Container Freight Station, No.5, GNT Road, Moolakadai, Chennai - 600 110. It was found that the petitioner herein is the Proprietor of M/s.Zandra Trading Company, Puducherry and he gave authorization to one R.Gopinath (A-3) to sign invoices on all shipping related documents at Bangalore on behalf of M/s.Zandra Trading Company.
4. The premises of M/s. Sri Lakshmi Packagings, Tirupur was searched on 03.09.2009 by the Tiruppur Customs Officers and a restraint order was issued on the 200 bags of salt approximately weighing 10 MTS. The second accused viz., R. Sampath is the Proprietor of M/s.Sri Lakshmi Packagings, Tiruppur and he gave a voluntary statement stating that he was doing the business of supplying HDPE/Woven sacks; that his customer M/s. Zandra Trading Company asked him to supply the goods by raising the invoices with the description as 'industrial salt'; that he has raised the invoices for 'industrial salt' as per the instruction of M/s Zandra Trading Company, Puducherry and that he has received a commission of 2% of the bill value from M/s.Zandra Trading Company Ltd., In the course of investigation, it was found that 200 MTS of 'MOP' available in the eight recalled container lying at in the CFS was seized on 25.11.2009 under a mahazar as it was smuggled out of India by way of mis-declaration violating the provisions of the Customs Act, 1962 r/w. Fertilizer Control Order, 1985 under the Essential Commodity Act, 1955. Thus in all the 375 MTS of 'MOP', with an FOB value of Rs.82,83,633/- (as per the concerned shipping bills) and market value of Rs.1,34,40,000/- were attempted to be smuggled out of India by the exporter by way of mis-declaration and hence the accused persons are liable to be punished under Sections 132 and 135 of the Customs Act, 1962 r/w. Fertilizers Control Order, 1985 under the Essential Commodity Act, 1955.
5. Heard Mr.R.Tyagarajan, learned senior counsel for Mr.A.Ganesh appearing for the petitioner and Mr.N.P.Kumar, learned Special Public Prosecutor for Customs/respondent.
6. The learned senior counsel for the petitioner has submitted that the respondent herein has filed a complaint based on the sanction order issued by the Commissioner of Customs dated 07.06.2011 and the said sanction order itself was issued based on the order passed by the adjudicating authority dated 29.03.20
