Air Customs vs State and Another

Suresh Kait, J.

Crl.MA. No. 16799/2010 (delay)

For the reasons explained, delay of 20 days stands condoned.

Criminal M.A. stands disposed of.

CRL.REV.P. No. 694/2010

By the present revision petition, Petitioner has assailed the order dated 28.06.2010 passed by ld. ACMM; New Delhi whereby the case of the Petitioner bearing CC No. 110/1/03 titled as ''Custom v. Iqbal Ali'' was dismissed for non-prosecution.

Learned Counsel for the Petitioner submits that department filed the complaint for the offence punishable u/s 132/135(1)(a) of the Customs Act, 1962 against the Respondent No. 2 way back in the year 2003. Thereafter, cognizance of the offence was taken by the ld.Trial Court.

Learned Counsel for the Petitioner further submits that after getting the bail, Respondent No. 2 avoided appearance in the Court. On 12.02.2007, ld.ACMM;New Delhi passed orders issuing NBWs against the Respondent No. 2 and the notice to his surety returnable for 05.07.2007. Thereafter, coercive processes were repeated and the vide order dated 24.11.2009, ld.ACMM; New Delhi directed for publication of the process u/s 82 Code of Criminal Procedure, returnable for 23.04.2010. On the said date, ld.Presiding Officer was on leave, however the report on the process u/s 82 Code of Criminal Procedure was filed and the matter was fixed for 28.06.2010 by the Link Magistrate for consideration of the report.

He further submits that on 28.06.2010, ld.ACMM;New Delhi considered the report and dismissed the complaint for non-prosecution and same reads as under:

Despite repeated opportunities to the department the process u/s 82 Cr. P.C. is not being published. There is No. justification why the process was not published in ordinary manner. Further from the letters bearing No. C No. VIII (Law) PLM/39/2000/SA/2372 dated 08.04.2010 and No. C No. VIII (Law) PLM/39/2000/ SA/3513 dated 17.05.2010 it appears that even in the process published in the newspapers the accused was not provided statutory period of 30 days for his appearance before the Court.

In the facts and circumstances when the complainant has failed to take steps for publication of process u/s 82 Cr. P.C. complaint is dismissed for non prosecution.

Ld. counsel for the Petitioner submits that ld.ACMM; New Delhi has totally gone wrong in dismissing the complaint on the ground that complainant failed to take the steps for publication of process u/s 82 Cr.P.C.

Further, ld.counsel has relied upon the judgment of this Court dated 12.07.2010 passed in Criminal Petition No. 348/2010 in the case titled as ''UOI v. State and Another'' wherein the facts were similar as in the present petition. Vide the above judgment, this Court considered the matter and passed the order as under:

I consider that the attitude of learned ACMM was quite strange and contrary to law. The Court cannot fall in a trap of inaction on the part of investigation agency of prosecution. If the accused and the prosecution or investigating agency come in league to help accused, the Court cannot close its eyes and take a view that since the investigating agency was not acting properly, it would not issue process against the accused. That gives a leverage opportunity to the accused to mix up with the investigating agency and go scot free. The Court has to bring every matter to its logical end. If the investigating agency is not acting properly, an action should be ordered by the Court against the official of the investigating agency by superior officials but that would not give an excuse to the Court to let off the accused or let off any other person or refuse to issue process in accordance with law. The impugned order dated 23rd February 2010 is hereby set aside and learned ACMM is directed to proceed against accused and allow the application moved by the Petitioner and see to it that proceedings u/s 82/83 and other provisions of Code of Criminal Procedure are complied with by the prosecution

In the instant case, the Respondent No. 2/accused in the complaint case the allegations against him is that of evasion of custom duties and of smuggling of fire-arm.

I am of the view that ld.ACMM; New Delhi should have not dismissed the complaint in haste and in arbitrary manner. If, there was any lapse or misleading on the part of the department/complainant, he should have given one more opportunity, may be with imposing costs, instead of dismissing the complaint in this fashion.

In the facts and circumstances of the case, I set aside the order dated 28.06.2010 passed by ld. ACMM; New Delhi and further direct that complaint case No. CC1101/03 is restored to its original number and stage.

It is made clear that in the event of non taking of steps by the Petitioner as per the directions of the trial court, the trial court shall be at liberty to pass orders as per law.

Accordingly, the Petitioner is directed to appear before ld. ACMM; New Delhi on 18.08.2011 for further directions.

Criminal Revision Petition No. 694/2010 is allowed accordingly.