ASSISTANT COLLECTOR of CUSTOMS & … Vs U.L.R. MALWANI AND ANR (16 OCTOBER, 1968)

ASSISTANT COLLECTOR of CUSTOMS & … Vs U.L.R. MALWANI AND ANR (16 OCTOBER, 1968)

FACTS OF THE CASE

• Between the accused and the customs authority, there existed uncertainty. Under the Sea Customs Act of 1878, accusations of conspiracy were reported to the customs authorities.  In October of 1959, the suspects were charged with conspiracy in Bombay and other locations. They engaged in a plot to smuggle many pieces of foreign merchandise into India during the years 1959 and 1960, and the customs officials conducted an investigation as a result. Some of the items were smuggled during the investigation, and those items were later seized. The seized products were confiscated during the investigation. 
• The accused was given a penalty. There was insufficient proof to convict them.  After that, the assistant customs collector requested action from the government and filed a complaint under Section 120B of the IPC, Section 167 of the Sea Customs Act of 1878, and Section 5 of the Imports and Exports (Control) Act of 1947 against the five individuals, including Accused 1 and 2. The first accused presented a petition to the magistrate before the trial began.  

ISSUES INVOLVED

• The accused asked a number of points, such as whether Article 20(2) of the Constitution applied since the customs collector’s ruling precluded the prosecution of Accused 1 and 2.
• Whether the customs collector’s conclusion was relevant to the question of estoppel in the criminal case against accused 1 and 2
• Whether the prosecution amounted to “an abuse of the process of the Court in view of the excessive delay in launching the same,” 
• Whether section 273(4) of the Criminal Procedure Code was applicable to the facts of the case, and 
• Whether the records mentioned in Accused No. 1’s petition to the Magistrate could be called under section 94 of the Criminal Procedure Code.  

CONTENTIONS OF PARTIES

The Magistrate denied the accused’s application. In the revision, the High Court agreed with the Magistrate on certain points but disagreed with him on the requirement to call the witness testimonies that had been recorded by the customs officials in the investigation under the Sea Customs Act. It instructed the Magistrate to call such statements and make sure the accused had access to copies of them prior to the start of the investigation into the matter. Customs officials and the accused appealed to this Court in opposition to the High Court’s judgements. The accused were respondents in the Criminal application of the first case, then they were the appellants in the appeal case. It is necessary for an “accused person” to prove 439 that he had been tried by a “court of competent jurisdiction” for an offence, that he is either convicted of that offence or found not guilty of it, and that the said conviction or acquittal is still in effect. This is necessary in order to benefit from Section 403 of the Criminal Procedure Code or Article 20(2). if it is determined that much. It might be argued that he is not subject to a second trial for any offence for which a different charge than the one against him may have been brought under section 236 or for which he may have been found guilty under section 237.  This Court has held time and time again that a Collector of Customs’ decision-making process is not a “prosecution” nor a “court,” despite what the terms “prosecution” and “court” may imply.  As a result, the accused’s plea is based on Art. 20(2) in the current instance could not be accepted. In Criminal Appeal No. 15 of 1967, the appellants contest the accuracy of the Bombay High Court’s ruling in as much as it was against them, and in Criminal Appeal No. 35 of 1967, the appellants contest the decision in different ways.

The concept of autrefois acquit is only one part of the issue of estoppel rule. Lord MacDermott stated the aforementioned rule in Sambasivan v. Public Prosecutor, Federation of Malaya(a) as follows:

“The fact that a person cannot be prosecuted for the same crime again does not adequately express the consequence of an acquittal rendered by a competent court on a legitimate charge and during a legitimate trial. To that, it must be stated that the judgement is conclusive and binding on the parties to the adjudication in all the following procedures. Criminal cases are just as subject to the dictum “Res judicata pro veritate accipitur” as civil ones. In this case, the prosecution was required to accept the validity of the appellant’s acquittal at the first trial on the accusation that he had ammunition in his possession and was prohibited from taking any action to contest it in the second trial. Insofar as it could be pertinent to his defence, the appellant was no less entitled to rely on his acquittal. Even though it is obvious that it did not prove his innocence on the firearms charge, it undoubtedly lessened the case against him to some extent because at the initial trial, the evidence presented in favour of one charge was obviously relevant to the other given the location of the revolver and ammunition and how well they fit together.

PROVISION INVOKED

No individual may be tried and punished more than once for the same offence, according to Article 20(2) of the Indian Constitution.

The report of a police officer after an inquiry is complete is covered under Section 173 of the CrPC. When a report seems to be submitted under this provision stating that the accused had been freed on bail, provision 173(4) of the CrPC deals with the situation. When he or she believes it appropriate, the magistrate has the authority to order the bond to be discharged.

Information about the commission of a cognizable offence is covered by section 154 of the Criminal Procedure Code. An officer in charge of the police station can receive information about it verbally, but if it is supplied in writing, the giver must sign it.

The search of a suspected location that may include stolen goods, falsified documents, etc. is covered under Section 94 of the Criminal Procedure Code. If any first-class magistrate receives any information, and following an investigation, if he has any cause to suspect that any location is being used to store, sell, or transact in any illicit activity. A magistrate has the authority to issue a warrant to a police officer with a rank higher than a constable so that they may enter the location, search it, seize any stolen or objectionable items, or bring any property that the offender has used before the magistrate. Every individual who has been discovered in a location where it seems that such property or an object has been produced, sold, or deposited may also be taken into custody by the police before a magistrate.

Objectionable Articles: 94(2) of CrPC

• The counterfeit coins, metal pieces made in violation of the Metal Tokens Act of 1889, 
• counterfeit currency notes, counterfeit stamps, 
• forged documents,
•  false seals, 
• obscene objects as defined in Section 292 of the IPC, and
• other materials or instruments used in the manufacture of any of the objects listed in clauses (a) to (f) are considered objectionable articles under this section.

The option of the court to hear parties is covered under Section 302 of the CrPC. No one has the right to be heard personally or via an advocate before the court when it is exercising its revisionary powers, although the court may do so and may hear any party personally or through an advocate.

JUDGEMENT

The Criminal Appeal No. 15 of 1967 is allowed, but the Criminal Appeal No. 35 of 1967 is dismissed. The Magistrate’s justifications for his order are reasonable grounds. The High Court did not reach the judgement that the relevant papers would be lost, altered, or unlikely to be made available upon request if they were not provided in court. It has been done so under the false assumption that unless the accused are given copies of such statements even before the investigation gets started, they won’t get a fair trial. The High Court should abstain from interfering with the trial courts’ discretion regarding summons materials unless there are very solid grounds to do so. Such interferences would unduly hinder easement progress and result in a waste of public funds and effort, as has occurred in this case.

REFERENCES

• https://indiankanoon.org/doc/357519/ 

This Article is written by B. Michael Shriney of Sathyabama Institute of Science and Technology, Intern at Legal Vidhiya.

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