Will the provisions of IPC overrides the Customs Act?
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Table of Contents
Cases Covered:
Adani Power Limited, Vs Directorate of Revenue Intelligence
Citations:
1. A.R. Antulay Vs. Ramdas Sriniwas Nayak
2. Gangula Ashok Vs. State of Andhra Pradesh
3. Jeewan Kumar Raut Vs. CBI
4. Directorate of Enforcement Vs. Deepak Mahajan & Ors,
5. Illias Vs. Collector of Customs, Madras
6. Om Prakash & Anr Vs. Union of India
7. Bhavin Impex Pvt.Ltd. Vs. State of Gujarat
8. Gaurav Kathuria Vs. Union of India
9. Ramesh Chandra Mehta Vs. Union of India
10. Tilak Nagar Industries Ltd vs. State of U.P & Anr
11. Sunil Gupta Vs Union of India
Facts of the cases:
In this case the company was engaged in Coal export via its subsidiaries. They were charged for providing the false information.
The submission of Shri Nankani is to the effect that an investigation can only be initiated by lodging an FIR and when such an information relating to commission of a cognizable offence is received by an officer in-charge of a police station, he shall follow course of action as set down in Section 154 of the Code of Criminal Procedure and result into the final report under Section 173 of the Code. Another mode, according to Shri Nankani, is when an information is given to an officer in-charge of a police station of commission of a non-cognizable offence when according to him, the course to be followed is enumerated in Section 155 of the Code. In such a situation, he would follows from it i.e. all the provisions of the Code to the extent of the same which are not inconsistent with the provisions of the Act are applicable to the investigations under the Customs Act and according to him, the application/operation of Section 4(2) cannot be restricted or confined only to the provisions of Section 166-A to the exclusion of all the other provisions of the Code to the extent that the same are not inconsistent with the provisions of the Act. According to him, Chapter XIII of the Customs Act which confers specific power on the customs Officer in regards to ‘searches, seizure and arrest’ do not contain any provision as to how, in what manner, any information of commission or attempted commission or preparation for commission of an offence is to be dealt with. Further, there is no provision stipulating procedure as to how and in what event pursuant to the information, an officer would investigate or would not investigate and there is no departure contained in the Customs Act to exclude the procedure prescribed in Section 155 of the Code including sub-section (2) and sub-section (3).
Observation & Judgement of the Court:
Pertinent to note that when we heard the matter on 19th September 2018, our attention was invited to the guidelines issued by the Government of India, Ministry of Home Affairs, Internal Security Division on 31st December 2007, relating to the issue of Letter of Rogatory (LRs) for causing investigation abroad.The said guidelines contemplate that in order to obtain proposal from the Ministry of Home Affairs, the Investigating Agency is expected to sent certain documents which include the brief facts of the case, incorporating the allegations, name of the accused and particulars of the offences committed and a copy of the FIR and it is even the Ministry has understood and reflected when an investigation is set in motion and it is only in the backdrop of these circumstances, according to the guidelines, the Court may issue a letter of Rogatory. We only express that even the Ministry of Home Affairs has understood it in the way which we have elaborated. We say nothing more on this.
In light of the legal position emerging from the aforesaid discussion and the conclusions arrived by us, we make it clear that we have not gone into the merits of the letter of Rogatory issued by the Magistrate. We have only dealt with the contention as to whether it was permissible for the Magistrate to issue such a Letter of Rogatory without following the procedure mandates by sub-section (2) of Section 155 and whether the letterof Rogatory was issued on initiation of a valid investigation under Chapter XII of Cr.P.C. Since we are of the express opinion that Section 166A is not an independent island on which any investigating/inquiring authority can jump on without taking recourse to Section 154/155, we hold and declare that the action of the respondents in giving effect ot the letter of Rogatory issued by the learned Metropolitan Magistrate, Mumbai in relation to the import of coal of Indonesian origin cannot be sustained and it deserves to be quashed and set aside.
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CA Shafaly Girdharwal
CA
New Delhi, India
CA Shaifaly Girdharwal is a GST consultant, Author, Trainer and a famous You tuber. She has taken many seminars on various topics of GST. She is Partner at Ashu Dalmia & Associates and heading the Indirect Tax department. She has authored a book on GST published by Taxmann.
