IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 23/12/2021

C O R A M

THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

Crl. O.P. No.18335 of 2017

a n d

Crl.M.P.No.11198 of 2017

R. Selvaraj

... Petitioner /Accused No.3

Vs

1. The Deputy Commissioner of Customs

Prosecution Unit (Air)

Custom House

Chennai 600 001.

2. M/s. India Sales Corporation

rep. By its Partners

Shri Tayeb Haroon

Having Office at

A 19-20, MEPZ

Phase II, Tambaram

Chennai 600 045.

3. Tayeb Haroon

...

Respondents/Complainant/Accused 1 & 2

PRAYER : Criminal Original Petition filed under Section 482

Cr.P.C., to set aside the order passed by the learned

Additional Chief Metropolitan Magistrate, EOI, Allikullam at

Egmore in Crl.M.P.No.1811 of 2017 in E.O.C.C.No.23 of 2014.

For Petitioner ...

Mr.V.K.Sathiamurthy

For Respondent

...

Mr.N.P.Kumar

Spl.P.P for R.1

O R D E R

This Criminal Original Petition has been filed to set aside

the order passed by the learned Additional Chief Metropolitan

Magistrate, EOI, Allikullam at Egmore, in Crl.M.P.No.1811 of

2017 in E.O.C.C.No.23 of 2014.

2. Heard Mr.V.K.Sathiamurthy, learned counsel for the

petitioner and Mr.N.P.Kumar, learned Special Public Prosecutor

for the first respondent.

https://hcservices.ecourts.gov.in/hcservices/

3. The main contention of the learned counsel appearing

for the petitioner is that prosecution has been launched on the

basis of the private complaint filed by the first

respondent/complainant, for the offence punishable under

Sections 132 and 135 of the Customs Act, 1962.

4. It is his further submission that on 24/2/2017,

prosecution has filed a petition in Crl.M.P.No.466 of 2017,

under Section 311 of the Code of Criminal Procedure, to examine

the witnesses. Despite P.W.2 was recalled and examined, now an

application has been filed to file an additional document, which

is not permissible in law. The petitioner would have exercised

the power of discharge from the criminal prosecution whereas the

application has been filed to prevent such action. This

application has been filed to show as if there is prima facie

materials to proceed against the accused. Hence it is his

contention that this application is nothing but to fill up the

lacuna.

5. The learned counsel further submitted that the reasons

assigned for recalling, filing additional documents is also not

convincing, except contending that due to inadvertence, the

document could not be filed. It is also his submission that no

provision has been mentioned. The application is just to

receive the document which is not maintainable under the eye of

law. In support of his submissions, he has relied upon the

judgment of this Court in GAYES Vs. STATE, rep. BY ITS INSPECTOR

OF POLICE, KULASEKARANPATTINAM POLICE STATION, THOOTHUKUDI

DISTRICT (CDJ 2018 MHC 7020.

6. The learned counsel appearing for the petitioner

submitted that though P.W.2 was recalled in Crl.M.P.No.466 of

2017, he was not reexamined, as per the orders of this Court,

whereas the complaint itself clearly indicate the nature of the

document relied upon by the Customs Department. Bill of Entry

is already filed and marked as exhibit. The said bill itself is

generated on the basis of the invoice and packing list. At the

time of earlier application filed for recalling some witnesses,

the invoices and packaging list of the accused Company omitted

to be filed, due to inadvertence. Therefore, this document is

absolutely necessary to prove the charges against the accused.

Hence submitted that the trial Court has allowed the

application, taking note of the nature of the document.

7. Normally, it is well settled that the prosecution

cannot be allowed to fill up the lacuna, after examination of

the witnesses. Similarly for the sake of recalling and marking

documents, the Courts c