Nagarathinam v. The Deputy Commissioner Of Customs
'BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 04.09.2024 PRONOUNCED ON :13.09.2024
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR Crl.R.C.(MD)No.831 of 2024 and Crl.M.P.(MD)Nos.8996 and 8997 of 2024 Nagarathinam ... Petitioner/Petitioner/Accused No.1 Vs.
The Deputy Commissioner of Customs, Customs Division, Ramanathapuram District. ... Respondent/Respondent/Complainant PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of the Code of Criminal Procedure, against the order passed in Cr.M.P.No.554 of 2024 in C.C.No.943 of 2020, on the file of the Additional Chief Judicial Magistrate Court, Madurai, dated 14.05.2024.
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For Petitioner : Mr.RM.Arun Swaminathan For Respondent : Mr.Arul Vadivel @ Sekar Senior Counsel for NCB cases.
ORDER
This Criminal Revision is directed against the order passed in Cr.M.P.No. 554 of 2024 in C.C.No.943 of 2020, dated 14.05.2024, on the file of the Additional Chief Judicial Magistrate Court, Madurai, dismissing the petition for discharge filed under Section 245(2) Cr.P.C.
2. The petitioner is the accused in C.C.No.943 of 2020 for the offences under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962. It is evident from the records the the respondent has laid a complaint against the petitioner and another for the offences under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 and that the case was taken on file in C.C.No.943 of 2020 and is pending on the file of the Additional Chief Judicial Magistrate, Madurai. It is further evident that the prosecution has examined 8 witnesses as P.W.1 to P.W.8 and exhibited 18 documents as Exs.P.1 to P.18 during the pre charge evidence and after closure of the prosecution side evidence and when the case 2/12
was pending for framing of charges, the petitioner-first accused has filed the petitoner under Section 245(2) Cr.P.C., seeking discharge from the above case.
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evidence, while drawing mahazar at customs division, Ramnad and the hearing the narration, the witnesses have certified the proceedings happened in their presence and hence, it cannot be stated that the gold bars seized by the DRI at customs division, Ramnad under a mahazar belonged to the petitioner, that the petitioner was not given any liberty to cross-examine the assayer in the adjudication proceedings, despite the request made by the petitioner, that DRI had identified that Shri Faji was instrumental in the smuggling activities, but there was no proposal made in the SCN apprehension of Shri Faji even in future, that the gold bars were not seized from the possession of the petitioner and it was seized from the possession of the pillion rider Shri.K.
Ramanathan, while the petitioner was driving the motorcycle at the time of interception of the officers, that the petitioner has not claimed the ownership over the gold and the petitioner is no way connected with the seized gold, that DRI has not established the involvement of the petitioner in the seizure of gold and the entire case is based on the inculpatory statements of the witnesses and notices alone and that therefore, the petitioner is entitled to get discharge from the above case under Section 245 Cr.P.C.
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4. The respondent has filed a counter statement raising objections and wherein they have stated that when the petitioner himself has accepted the riding of the motorcycle and the seizure from the first accused K.
is that the main accused Fazi has not been apprehended cannot be a gound for discharge or acquittal and that therefore, the petition is liable to be dismissed.
5. Before entering into further discussion, it is necessary to refer the judgment of the Hon'ble Supreme Court in State by the Inspector of Police, Chennai Vs. S.Selvi and another reported in (2018) 13 SCC 455. "7. It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2 SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424, State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711, Niranjan Singh Karan Singh Punjabi vs. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs, West Bangal v.
satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the mater and weigh the materials as if he was conducting a trial"
6. It is settled law that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
7. It is also settled law that while considering an application seeking discharge from a case, the Court is not expected to go deep of the probative value of the material on record, but on the other hand, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, and for that purpose, the Court cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is a main trial. 7/12
8. It is pertinent to note that the Courts while dealing with the application for discharge, are required only to see whether a prima facie is made out against the accused and detailed enquiry is not required at this stage. Bearing the above legal position in mind, let us consider the case on hand.
9. The main contention of the petitioner is that the gold bars were not seized from his possession, but only from the possession of the pillion rider Ramanathan, who is the second accused. It is pertinent to note that the petitioner had alone driven the motorcycle bearing Registration No.TN-65-K-7704 and the same came to be intercepted by the respondent officials and that they have recovered the gold from the possession of the pillion rider Ramanathan. As rightly contended by the learned Senior Counsel for the respondent, the petitioner has neither disputed his riding of motorcycle at the time of alleged interception nor his presence when the gold was seized from the possession of the pillion rider Ramanathan. Since the gold was seized from the possession of the pillion rider of the motorcycle which was driven by the petitioner, whether the petitioner was also involved in the alleged occurrence, cannot be gone into the present stage and it is a matter for trial. 8/12
10. No doubt, the petitioner has taken a stand that despite his specific request for cross-examination of the assayer, he was not permitted to crossexamine him in the adjudication proceedings and that the denial of the adjudicating authority would go to show that he was not satisfied with the assayer's evidence. As rightly contended by the learned Senior Counsel for the respondent, when the petitioner himself has stated that he was not claiming any ownership over the gold seized and he is no way connected with the seized gold and he has no objection to confiscate the seized gold, the question of permitting the petitioner to cross-examine the assayer does not arise at all and that too, at the pre-charge stage.
11. Though the petitioner has challenged the sanction order on the ground that the sanction was accorded without considering the nature of evidence, the role of the person in the evidence and mens rea of the person, the petitioner has not whispered anywhere, what are the facts that were not considered in the sanction order and that the petitioner has not shown that there is apparent error on the face of the sanctioning order.
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12. The petitioner has also taken a stand that the non arrest of Bajibai, Kumar and Mohammed who are the main accused is fatal to the prosecution case. But the non-arrest of some of the co-accused by itself is not a ground to discharge other accused from the case. As rightly contended by the learned Senior Counsel for the respondent, the prosecution has produced sufficient materials to proceed against the accused. The learned trial Judge, by also observing that the evidence of P.W.1 to P.W.8 and the statement recorded from the co-accused and the petitioner under Section 108 and other exhibits marked, that there existed prima facie materials to frame charge against the accused. Moreover, the petitioner has not produced any evidence or materials so as to enable the Magistrate to give a finding that the charge is groundless.
13. Considering the above, the order dismissing the petition cannot be found fault with. Consequently this Court concludes that the Criminal Revision Case is devoid of merits and the same is liable to be dismissed.
14. In the result, the Criminal Revision Case is dismissed and the order dated 14.05.2024.passed in Cr.M.P.No.554 of 2024 in C.C.No.943 of 2020, on the file of the Additional Chief Judicial Magistrate Court, Madurai stands 10/12
confirmed. Consequently, the connected Miscellaneous Petitions are also dismissed.
13.09.2024 NCC : Yes/No Index : Yes/No Internet: Yes/No SSL To
1. The Additional Chief Judicial Magistrate Court, Madurai.
2. The Deputy Commissioner of Customs, Customs Division, Ramanathapuram District.
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K.MURALI SHANKAR, J.
SSL Pre-Delivery order made in Crl.R.C.(MD)No.831 of 2024 13.09.2024 12/12