1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20"*DAY or JANUARY, 2010
BEFORE:
THE HON'BLE MR. JUSTICE A.S. pAcHEAPUEE;",
CRIMINAL PETITION No.6576 gg 2009 E E
BETWEEN:
1. C.Prasad, _,m.
S/o. late V.Chandrashekar,
Aged about 55 years,
2. Anitha Prasad,
W/o. C.Prasad,
Aged about 50 years,
Both_r[atENoA2§lg,iSeotorcI,5
27"Rcross,qEsR{Layout,
Bangalore--56fl"Oi2,"g_"." m PETITIONER/S
[By M/s.'$ree Ran§a'Assoes., Advs.]
rSuperintendentVof Customs, HPU.,
ffice of the Commissioner of Customs,
Queens Road} E
Central Revenue Building,
_ 'P.B. No 5400,
'VkBangalore4560 001. N RESPONDENT/S
xxVEfEy_§ri. Urval N.Ramanand, CGSC.]
'k'k'k
This Crl.P. is filed u/Section 438 Cr.P.C. by
the Advocate for the petitioners, praying to enlarge
the petitioners on bail, in the event of their
arrest in Crl. Misc. No.4769/2009 by the Addl.
2
Sessions Judge & FTC--XV, Bangalore, for the offences
p/u/S. 135 of the Customs Act 1962.
This Crl.P. coming on for Orders on this day,
the Court made the following:
ORDER
The petition is filed apprehending arrest for
the offence punishable under Section _;asitg§wu£na.g
Customs Act, 1962 {hereinafter referred to as ft%éT
Act” for short]. V i h
2. The facts relevant for the phrpo5§*Df this’
petition are as under:
Thé_petitioners_are the Directors of M/s. Live
Ads [India}pPriuate Limited, a Company governed by
“;thepprouisions*oi_khe ____ Indian Companies Act, 1956.
igrt does business in export of industrial salt from
ICmf.whlte£ieldi Its products are classified as
.chlorides, chloride oxides and product export by the
“Compan dis potassium chloride.
dfln April 2009, the respondent drew sample of
~duindustrial salt sought to be exported and sent them
i for testing to geological and metallurgical
laboratories and as per the reports it is stated
5L
that the product is naturally occurring in inorganic
chemical compound and 2 samples identifiieg gas
potassium chloride of technical grade. In Me? ?bQ%}_
the Joint Commissioner had directed to draw sampies.
again and they were sent for test to the Central
Revenue Laboratories, Chennai. Vihe petitioners are’
not aware of the results.\:i.They”.state 0that the
potassium chloride is classified under the heading
3104.20 and is restricted under_esport policy issued
by DGFT. According to themy the contention of the
respondent ;iéh,erg§fie§u§.l§fia: that the export was
allowed after taking azhank»guaranty_of 20% of the
value :and- the flhanhWi§uarantee was executed on
14.07.2oo9;a*
hit is at this stage “” that the respondent issued
0summons*under Section 108 of the Act calling upon
the 1″ petitioner to hear in person on 12.08 2009 to
i, ‘give ‘statement. The petitioners state that they
‘complied with the summons and that the respondent is
— summoning them again and again for further
” statement. It is in these circumstances that the
‘petitioners are apprehending arrest under Section
4 Cr§.E 6$”6’Q9
104 of the Act. The respondent has the authority to
arrest.
3. The petitioners claim that the respondent
has no reason to summon the petitioners and to make
an enquiry for the offence under Section 135 of ghe
Act as the samples were drawn in the month of Aprilv
2009 and the test report dated l3«Q4,2Q5§ received
by the respondent does not re§é;ir§fiya§re§t.i§-£h§_
export material and thatfl the lsummoningwxoffi the’
petitioners is an abuse of the process of law.
4. They state” thaty they mare__ready to co”
operate} with lthel,respondent whenever they are
summoned and are ready and willing to abide by any
_ conditions that may be imposed for release on bail.
uflVTheyr £fi:thér_ submit that they are respectable
citiiens* and “are permanent residents of Bangalore
H’ and kthat. they will not run away from the
i’7_§urisdiction. On these grounds they have sought for
” grant of anticipatory bail.
5. The learned Central’ Government Standing
Counsel has opposed the petition and submits that
the goods covered under consignment are miswdeclared
bi
6. 1 have heard the learned counsel for the
petitioners and also the learned Central Goyernment
Standing Counsel.
7. The point that arises for my considerationl
is;
Whether the petitioner is entitled”
to the anticzipatory he-i1i..””sofight 55:2.
8. It is the contention of the learned counsel
for the petitioners ghht thep have apprehension of
arrest under fieetion lgfi of the Act and summons were
issued bp the Qustoms authority under Section 108 of
the Act’}«’–state that they have not
committed lanfiv_unlawrul act and that they are
V*innecent persons and apprehending arrest in respect
V€ofvnon#bailable offence. They also rely upon the
aeciision’ at the Apex Court reported in 2008 AIR scw
‘c7220 [onion of India Vs. Padam Narain Aggarwal
jfitcfif
“9. Per contra, the learned Central Government
u’*standing Counsel submits that the said decision is
not applicable to the facts on hand as there was
blanket Order of anticipatory bail nullifying the
provisions
he submits
to
thereafter
there is no reasonable apprehension of arrest for
the offence under Section 135 of the_ Act :es the’ *
record
7 C§i.?
of Section 104 of the Act.
the statement
of the petitioners
‘j\
,1
(‘h’\
\ 7
xx}
Further more,
that the authorities concerned will have
and
take a decision in the matter and that
enquiry is not complete. On these grounds;_he has
sought for dismissal of the petition.
10.
Now as could be seen.from the provisions
of Section 108 of the fiet reads thus;
“P¢wer_ ntO’q summon ‘persons to give
eyidence and produce documents:
(1) ‘
‘Any Gaiettedg Officer of customs
shall -hafié Tpower to summon any
.4 person’~ ….. ~whose attendance he
‘,considers necessary either to give
1 -.4″<.eVvidence or to produce a document
(2)
;Tafihich
‘connection with the
_ or any other thing in any inquiry
such officer is making in
smuggling of
any goods.
A summons to produce documents or
other things may be for the
production of certain specified
documents or things or for the
8 C13,? EEVEXCQ
production of all documents or
things of a certain description in
the possession or under the
control of the person summoned.
(3) All persons so summoned shall f5e5 ”
bound to attend either in_person]
or by an authorised afient, as sash ‘A
officer may direct;fi<andg "allud
persons so summoned shall be bound
to state the '"§ruth 'uéunlf shy H
subject respectingdiwhich. they, are
examined Voftlmakgudstatement and
produce such 5documents sand} other
things as may be requiredyi
PRQVIDEbi*_that'%pthe- fexemption under
section l32@QoE{ the Code of Civil
Procedure¢V'l9O8s*§S of 1908), shall be
_app1icable,fi to: any requisition for
""attendance under this section.
"(4jrpgJ;;g. such inquiry as aforesaid
' be deemed to be a judicial
5A.proceeding within the meaning of
i;section 193 and section 228 of the
Indian Penal Code, 1860."
R~.iSo; now the petitioners have been issued summons
iiV,dpunder the above said provision and it is for the
Gazetted Officer to record the statements of the
9 ¥r;.E aE?€:3%
petitioners and the proceedings before the Gazetted
officer are deemed to be a judicial proceeding
within the meaning of sections 193 and section 228
of the Indian Penal Code. The officer has” also
authority to require production of order permitting
clearance of the goods imported by the landp the .
seizure of goods, documents and things_anddalso:thei
confiscation under Chapter 14 of the ab6Vé*S&idJ&¢t;
11. The petitioners are apprehending arrest for
the offence under Section l3S ef the Act for evasion
of duty or prohibition _ flow as cduld be seen from
the allegatipngip mede ‘in the petition, the
petitioners statedthat there are no reasons for the
Officer to summon them as they have not committed
a*any offence punishable under Section 135 of the Act
V5and the samplevwhich was taken in the month of April
2(3.’E29″”idoes”Vii:rI_1<at reveal any adulteration and when the
'epetitioners are definite of having not committed any
joffence, the Officer has issued the summons under
' Section 108 of the Act for recording their
"e statement. The facts alleged iJ1 the petition are
not sufficient to apprehend the possibility of
arrest of the petitioners as the respondent after
mi
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recording the statement has to take a decision to
know as to whether there is any material against the
petitioners for the offence alleged. So, the ne;é_
fact that the statement of the petitioner is to be»
recorded itself is not a :;roundj’tohpcause_ any
apprehension in the mind_ of “the petitioners “to ,
arrest them for the offence pnnishable under Section
135 of the Act.
12. So far as twe decision referred to above
is concerned, $the_ Ans; p@onrt””has taken into
consideration-she powers of the authority to arrest
under Section in; of the Act and the High court had
come to theconcldsion that the petitioners in the
said case have no grounds to apprehend arrest by the
x”anthorities¢A Anyhow, the Court ultimately passed an
VOrder*not to arrest the petitioners without notice
of Wldh days} 3 So, taking into consideration the
i, blanket.brder passed by the High Court, the Apex
v. ‘dearth quashed the said Order, but so far as the
.remaining portion of the Order holding that there
~,§£é’ no reasonable grounds to apprehend. the arrest
“for the offence, the Apex Court has not interfered.
The principle laidwdown does not apply to the facts
bfi.
11 C:;.P fi§?€f39
on hand in view of the facts and circumstances that
it is only a summons which was issued. by gthe
respondent for recording the statement_ of’ the’ is?
petitioner and that itself is not sufficientVto_hoidei
reasonable apprehension of arrest,” j’
13. Furthermore, VitF_is ireveaied’ from: thew
material placed on ;recordJVthat_pth§apégmgcns were
issued to the petitioners on 2hd1b:2QQ9 and on other
3 more occasions and since then the petitioners have
not put recording their
statement. _I am of the a§ihi§p that in the absence
of reasonahigwxapafiprahension of arrest, an
anticipatoryp baiij.§afific£’ be granted. Hence, I
answer the point in neéative and proceed to pass the
” * £91;«r§&&¢1″:fi3= H —– 1″
ORDER
The petition is dismissed.
ad?’
§u&%6
Ksm*