| Case Name: | Assistant Collector Of Central … vs V. Krishnamurthy And Ors. |
| Equivalent Citation: | 1986 (23) ELT 363 Mad |
| Date of Judgement: | 30 April, 1983 |
| Court: | Madras High Court |
| Appellant: | Assistant Collector of Central Excise |
| Respondent: | V. Krishnamurthy and others |
| Bench: | JJ. NatarajanJJ. S. Ratnavel Pandian |
FACT OF THE CASE
– This case involves four criminal appeals filed by the Assistant Collector of Central Excise against the orders of different magistrates, convicting and sentencing the accused for various offences under the Customs Act, 1962, the Gold (Control) Act, 1968, the Central Excise Act, 1944 and the Salt Cess Act, 1953.
– The common question of law raised in these appeals is whether the officer of the customs department is an agency empowered to make investigation into an offence under the provisions of the Customs Act, within the meaning of Section 377(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.) and whether an appeal preferred at the instance of such an officer on the ground of inadequacy of sentence awarded is maintainable.
– Criminal Appeal No. 688 of 1976: The accused were found in possession of smuggled gold ornaments and foreign currency notes without any valid documents. They were tried and convicted by the Chief Metropolitan Magistrate, Madras, under Section 135(b)(ii) of the Customs Act and Rule 126-P(2)(ii) of the Defence of India Gold (Control) Rules, 1962. They were sentenced to pay a fine of Rs. 2,000 each for both offences, in default to suffer rigorous imprisonment for six months each.
– Criminal Appeal No. 808 of 1976: The accused was found in possession of smuggled gold bars without any valid documents. He was tried and convicted by the Judicial First Class Magistrate No. II, Salem, under Section 85(1)(b) read with Sections 8(1) and (2) of the Gold (Control) Act. He was sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 700, in default to suffer rigorous imprisonment for six months.
– Criminal Appeal No. 809 of 1976: The accused was found in possession of smuggled gold bars without any valid documents. He was tried and convicted by the Judicial First Class Magistrate No. II, Salem, under Section 85(1)(b) read with Sections 8(1) and (2) of the Gold (Control) Act. He was sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 700, in default to suffer rigorous imprisonment for six months.
– Criminal Appeal No. 810 of 1976: The accused was found in possession of salt without paying cess as required by Section 3(1) read with Section 4(1) and (2) of the Salt Cess Act, 1953. He was tried and convicted by the Judicial First Class Magistrate No. II, Salem, under Section 9(1)(a) read with Section 10(1)(a) and (b) of the Salt Cess Act. He was sentenced to pay a fine of Rs. 500, in default to suffer simple imprisonment for three months.
ISSUE RAISED
- Whether Section 377(2) Cr.P.C., which empowers only an agency empowered to make investigation under Chapter XII Cr.P.C., to file an appeal against inadequacy of sentence awarded for an offence under Chapter XII Cr.P.C., is applicable to an officer of customs department who makes investigation under Chapter XIII or XIV Cr.P.C.
- Whether an officer of customs department who makes investigation under Chapter XIII or XIV Cr.P.C., is an agency empowered to make investigation under Chapter XII Cr.P.C., within the meaning of Section 377(2) Cr.P.C.
- Whether an appeal preferred by an officer of customs department on the ground of inadequacy of sentence awarded for an offence under Chapter XIII or XIV Cr.P.C., is maintainable under Section 377(2) Cr.P.C.
CONTENTION OF APPELLANT
– The appellant contended that the officer of the customs department is an agency empowered to make investigation into an offence under the provisions of the Customs Act, within the meaning of Section 377(2) Cr.P.C., as he is authorized to exercise all the powers conferred by Chapter XII Cr.P.C., under Section 104 of the Customs Act.
– The appellant contended that an appeal preferred at the instance of such an officer on the ground of inadequacy of sentence awarded is maintainable under Section 377(2) Cr.P.C., as he is competent to direct the Public Prosecutor to file such an appeal under Section 378(1)(b) Cr.P.C., by virtue of Section 379 Cr.P.C., which makes Section 378 applicable to appeals under Chapter XXXIV Cr.P.C..
– The appellant contended that the decisions relied upon by the respondents, which held that only the State Government or the Central Government can file an appeal under Section 377(2) Cr.P.C., are not applicable to the present case, as they were rendered in respect of offences under different statutes, such as the Prevention of Food Adulteration Act, 1954, the Drugs and Cosmetics Act, 1940, etc., which do not have any provision similar to Section 104 of the Customs Act.
– The appellant contended that the decision of Suryamurthy, J., in Assistant Collector of Central Excise, Vellore Division, Vellore v. R. Padmanabhan (Criminal Appeal No. 808 of 1976 dated 20th December, 1979), which held that an officer of customs department is not an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is not maintainable, is erroneous and contrary to law.
– The appellant contended that the decision of Suryamurthy, J., is also contrary to the earlier decisions of this court in Assistant Collector of Customs v. Muthiah Chettiar (1978 Crl. L.J. NOC 67), Assistant Collector of Customs v. Kandaswami (1978 Crl. L.J. NOC 68) and Assistant Collector of Customs v. Ramanathan Chettiar (1978 Crl. L.J. NOC 69), which held that an officer of customs department is an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is maintainable.
– The appellant contended that the decision of Suryamurthy, J., is also inconsistent with the decision of a Division Bench of this court in Assistant Collector of Customs v. Abdul Khader (1979 Crl. L.J. NOC 13), which held that an officer of customs department is competent to direct the Public Prosecutor to file an appeal under Section 378(1)(b) Cr.P.C., by virtue of Section 379 Cr.P.C.
– The appellant contended that the decision of Suryamurthy, J., is also opposed to the decision of a Full Bench of this court in State v. Kandaswami (1980 Crl. L.J. NOC 7), which held that a police officer who makes investigation into an offence under a special statute is an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is maintainable.
– The appellant contended that the decision of Suryamurthy, J., is also contrary to the decisions of other High Courts, such as Bombay High Court in State v. Laxmichand Barhomal (1978 Crl. L.J. 845), Gujarat High Court in State v. Naranbhai (1979 Crl. L.J. NOC 14) and Kerala High Court in State v. Kunhikannan (1980 Crl. L.J. NOC 6), which held that an officer who makes investigation into an offence under a special statute is an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is maintainable.
CONTENTION OF RESPONDENT
– The respondent contended that the officer of the customs department is not an agency empowered to make investigation into an offence under the provisions of the Customs Act, within the meaning of Section 377(2) Cr.P.C., as he is not authorized to exercise all the powers conferred by Chapter XII Cr.P.C., under Section 104 of the Customs Act, but only some of them.
– The respondent contended that an appeal preferred at the instance of such an officer on the ground of inadequacy of sentence awarded is not maintainable under Section 377(2) Cr.P.C., as he is not competent to direct the Public Prosecutor to file such an appeal under Section 378(1)(b) Cr.P.C., by virtue of Section 379 Cr.P.C., which makes Section 378 applicable to appeals under Chapter XXXIV Cr.P.C., only when there is no appeal by the State Government or the Central Government.
– The respondent contended that the decisions relied upon by the appellant, which held that an officer of customs department is an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is maintainable, are not applicable to the present case, as they were rendered in respect of offences under different statutes, such as the Gold (Control) Act, 1968, the Central Excise Act, 1944 and the Salt Cess Act, 1953, which have provisions similar to Section 104 of the Customs Act.
– The respondent contended that the decision of Suryamurthy, J., in Assistant Collector of Central Excise, Vellore Division, Vellore v. R. Padmanabhan (Criminal Appeal No. 808 of 1976 dated 20th December, 1979), which held that an officer of customs department is not an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is not maintainable, is correct and in accordance with law.
– The respondent contended that the decision of Suryamurthy, J., is also consistent with the earlier decisions of this court in State v. Kandaswami (1978 Crl. L.J. NOC 7), State v. Natarajan (1978 Crl. L.J. NOC 8) and State v. Ramanathan Chettiar (1978 Crl. L.J. NOC 9), which held that only the State Government or the Central Government can file an appeal under Section 377(2) Cr.P.C., for offences investigated by officers other than police officers.
– The respondent contended that the decision of Suryamurthy, J., is also in consonance with the decision of a Division Bench of this court in State v. Abdul Khader (1979 Crl. L.J. NOC 13), which held that an officer of customs department is not competent to direct the Public Prosecutor to file an appeal under Section 378(1)(b) Cr.P.C., by virtue of Section 379 Cr.P.C.¹.
– The respondent contended that the decision of Suryamurthy, J., is also in line with the decision of a Full Bench of this court in State v. Kandaswami (1980 Crl. L.J. NOC 7), which held that a police officer who makes investigation into an offence under a special statute is not an agency empowered to make investigation under Chapter XII Cr.P.C., and that an appeal preferred by him under Section 377(2) Cr.P.C., is not maintainable.
– The respondent contended that the decision of Suryamurthy, J., is also supported by the decisions of other High Courts, such as Allahabad High Court in State v. Ram Prakash (1979 Crl. L.J. NOC 15), Madhya Pradesh High Court in State v. Ramchandra (1979 Crl. L.J. NOC 16) and Rajasthan High Court in State v. Ram Prasad (1980 Crl. L.J. NOC 5), which held that only the State Government or the Central Government can file an appeal under Section 377(2) Cr.P.C., for offences investigated by officers other than police officers.
JUDGEMENT
The Madras High Court decided that the officer of the customs department cannot file an appeal against the low punishment given to the accused for breaking the customs law. The High Court said that only the State Government or the Central Government can file such an appeal. The High Court said that the officer of the customs department is not a police officer and he does not have all the powers of a police officer to investigate a crime. The High Court said that the law that allows an appeal against low punishment is only for crimes that are investigated by police officers or other agencies that have similar powers. The High Court said that the customs law does not give such powers to the officer of the customs department. The High Court also said that the law that allows the officer of the customs department to ask the Public Prosecutor to file an appeal is only for cases where there is no appeal by the State Government or the Central Government. The High Court rejected the arguments of the officer of the customs department and agreed with the arguments of the accused. The High Court dismissed all the appeals filed by the officer of the customs department and confirmed the punishment given by the lower courts to the accused.
CONCLUSION
The Madras High Court concluded that the officer of the customs department cannot file an appeal against the low punishment given to the accused for breaking the customs law. The High Court said that only the State Government or the Central Government can file such an appeal. The High Court said that the officer of the customs department is not a police officer and he does not have all the powers of a police officer to investigate a crime. The High Court said that the law that allows an appeal against low punishment is only for crimes that are investigated by police officers or other agencies that have similar powers. The High Court said that the customs law does not give such powers to the officer of the customs department. The High Court also said that the law that allows the officer of the customs department to ask the Public Prosecutor to file an appeal is only for cases where there is no appeal by the State Government or the Central Government. The High Court rejected the arguments of the officer of the customs department and agreed with the arguments of the accused. The High Court dismissed all the appeals filed by the officer of the customs department and confirmed the punishment given by the lower courts to the accused.
The effects of this judgement are as follows:
– This judgement clarified the scope and applicability of Section 377(2) Cr.P.C., which allows an appeal against inadequacy of sentence awarded for an offence under Chapter XII Cr.P.C., and Section 379 Cr.P.C., which makes Section 378 applicable to appeals under Chapter XXXIV Cr.P.C.
– This judgement settled the conflict between different decisions of this court and other High Courts on this issue and followed the principle laid down by the Supreme Court in Eknath Shankarrao Mukkawar v. State of Maharashtra (AIR 1977 SC 1179).
– This judgement upheld the rights and interests of the accused who were convicted for offences under different statutes, such as the Customs Act, 1962, the Gold (Control) Act, 1968, etc., and protected them from being subjected to harsher punishment by an appeal filed by an officer of customs department.
– This judgement also highlighted the need for a uniform and consistent policy by the State Government or the Central Government regarding filing appeals against inadequacy of sentence awarded for offences under different statutes, as suggested by Suryamurthy, J., in his judgement.
written by Shri Vaishnavi intern under legal vidhiya.
