ORDER

This petition has been filed to quash the proceeding in C.C.No.73 of 2017 on the file of the learned Judicial Magistrate No.I, Nagapattinam, thereby taken cognizance for the offences under Section

135(1)(b) of the Customs Act as against the petitioners.

2. The respondent filed complaint alleging that they received information about the transportation of gold biscuits of foreign origin weighing about 15 Kg for sales at Chennai. On the basis of the said information, the respondent conducted road check and intercepted the vehicle. They noticed that two occupants were in the vehicle and on enquiry they found seven parcels containing gold biscuits of foreign origin, weighing about 15.06 Kgs and it valued at about Rs.4,52,40,000/- The respondent filed complaint and the same has been taken cognizance in C.C.No.73 of 2017 as against the petitioners.

3. The learned counsel appearing for the petitioners submitted that without examining any of the witnesses, the learned Magistrate without following the mandatory provisions under the Cr.P.C., straight away issued summons to the petitioners. In respect of framing charges and questioning of the accused, the same shall only be after the examination of the witness. Through the respondent failed to produce any sufficient materials for proceeding against the petitioners, the learned Magistrate without even verifying the materials produced by the respondent, straight away issued summons and framed charges.

4. It is seen that the offence under Section 135(1)(b) of the Customs Act, 1963, is punishable with a maximum punishment of seven years and therefore, it is a warrant case otherwise than the police report. Therefore, the provisions under Section 245 of Cr.P.C., is the relevant provision applicable to the present impugned complaint. It is relevant to extract the provisions under Section 245(2) of Cr.P.C., as follows:-

“(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”

Thus it is clear that if the charge is groundless then the learned Magistrate is empowered to discharge the accused under Section 245(2)

of Cr.P.C.

5. In the case on hand, the learned Magistrate without examining any witnesses straight away had taken cognizance on the complaint lodged by the respondent and issued summons to the petitioners. It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India reported in (2009) 14 SCC 115 in the Ajoy Kumar Ghose Vs. State of Jharkhand, as follows :-

“26. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court.

27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section

202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable