Saket Aggarwal v. Directorate of Revenue

1. Aggrieved by an order dated 16.07.2011 passed by the learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi, the Petitioner seeks to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure (Code) to set aside the summoning order and quashing of the complaint for an offence punishable under Section 174 and 175 of Indian Penal Code(IPC).

2. As per the averments made in the Petition, one M/s. Kartik Traders having its office at S-27, Brindavan Garden, Sahibabad imported 22400 2013:DHC:1235 kgs of ‘dry medicinal herb material Inula Racemosa’ and 400 kgs of ‘dry medicinal herb material Chinese Ginseng’ which arrived at Inland Container Depot(ICD) Tuglakabad on 07.01.2008. The officials of DRI after receipt of certain information that the importer was importing some restricted items examined the said consignment on 08.01.2008 in presence of the proprietor of Kartik Traders, his custom house agent, two independent witnesses and officers of Wildlife Crime Control Bureau. The Petitioner was summoned by the Customs Officer to appear before him on 11.01.2008 along with all import and sale documents for the last five years in respect of earlier said M/s. Kartik Traders. The summons were handed over to the father of the Petitioner on 11.01.2008 at about 2:00 am. Since the Petitioner was out of town, he wrote a letter to the Respondent and expressed his inability to appear on 11.01.2008. However, the Petitioner showed his willingness to appear after 5-7 days. Another summons were issued for the Petitioner’s appearance on 22.01.2008 at 2:00 pm. The Petitioner again sought 10 days time as his wife was not keeping good health and was under medication. The instant complaint under Sections 174 and 175 of the Indian Penal Code(IPC) was filed by the Respondent against the Petitioner on the ground that the Petitioner had committed an offence punishable under Sections 174 and 175 IPC as he intentionally omitted to appear before a public servant although he was to appear before the Respondent in pursuance of the summons. Similarly, violation of the provision of Section 175 IPC was alleged on the ground that the Petitioner being legally bound to produce or deliver all documents failed to produce the same.

3. A short submission raised by Mr. Mohit Mathur, the learned counsel for the Petitioner is that it is admitted case of the parties that as per the provision of Section 108 of the Customs Act, 1962, as it was in force at the time of issuance of the earlier said summons, only a Gazetted Officer of Customs duly empowered by the Central Government in this behalf was entitled to summon any person or to produce documents or other things which were necessary for any inquiry by the said officer under the Customs Act. However, as per the M.F.(D.R.) Notification No.8/2008- Cus.(N.T.) dated 20th February, 2008 issued by the Government of India which came into force on 10.05.2008, the words ‘duly empowered by the Central Government in this behalf’ were omitted w.e.f. 13.07.2006. Thus, as per the provision of Section 108 of the Act which was in force at the time of issuance of the summons for appearance of the Petitioner and production of documents for 11.01.2008 and 22.01.2008, the customs officer who issued the summons was not duly empowered by the Central Government in this behalf. Thus, he was not entitled to issue the summons under Section 108 of the Act. However, by virtue of the amendment in Section 108 of the Act which came into force retrospectively w.e.f. 13.07.2006, he got an authority to issue the summons as required under Section 108 of the Act. The only question for determination is whether on account of the retrospective amendment in Section 108 of the Act, the Petitioner could be prosecuted under Sections 174 and 175 IPC?

4. This question is answered by a judgment of a Co-ordinate Bench of this Court in Rakesh Kumar Goyal v. NCT of Delhi & Anr., 2012 V AD (Delhi) 505 where this Court held that although by retrospective legislation the legislature can confer a procedural competency on an officer, however, an act or omission cannot be made punishable as an offence unless the competency exists on the day when the offence is committed. Paras 6 to 13 of Rakesh Kumar Goyal are extracted hereunder: “6. It may be noted that prior to the amendment on 13th July, 2006 Section 108 of the Customs Act enabled any Gazetted officer of Customs to summon any person to give evidence. By Section 25 of the Taxation Laws Amendment Act, 2006 Section 108 of the Customs Act was amended with effect from 13th July, 2006 and it entitled a Gazetted officer of Customs specifically empowered by the Central Government in this behalf to summon a person, to give evidence or produce documents. By M.F.(D.R.) Notification No. 8/2008-Cus.(N.T.) dated 20th February, 2008 Central Government empowered all Gazetted officers of the Customs for the purpose of Section 108 of the Customs Act. By Section 69 of the Finance Act, 2008 Section 108 (1) of the Act was amended so as to remove the words “duly empowered by the Central Government in this behalf”. This Finance Act came into force on 10th May, 2008 however the amendment was made retrospectively with effect from 13th July, 2006. It would be thus evident that when the summons were issued, Respondent No.2 was not empowered by the Central Government to summon a person, to give evidence or produce documents under Section 108 of the Customs Act. This empowerment was conferred on 20th February, 2008, and thereafter the words “duly empowered by the Central Government in this behalf” were deleted on 10th May, 2008 with retrospective effect from 13th July, 2006.

7. The issue before this Court is whether this retrospective amendment brought by Section 69 of the Finance Act though procedurally can empower an officer to summon retrospectively, however can retrospectively create an offence for non-compliance of the summons issued under Section 108 of the Customs Act. All the summons issued to the Petitioner i.e. on 12th June, 2006, 3rd July, 2006, 3rd November, 2006, 10th January, 2007, 2nd April, 2007, 21st May, 2007 and finally on 10th July, 2007 were issued when Respondent No.2 was not duly authorized to issue summons. Even on the date when the cognizance of the offences under Sections 174/175 IPC was taken by the Learned ACMM on the complaint of Respondent No.2, the Respondent No.2 was not authorized to issue summons to a person to give evidence or to produce documents. The retrospective amendment by Section 69 of the Finance Act, 2008 can ex-post facto ratify the acts of officers in issuing summons under Section 108 of the Customs Act, however cannot make them liable for the offence for the non-compliance thereof because when the non-compliance of the summons was done the same was not an offence. It is well settled that by a retrospective amendment no offence can be created as the same is contrary to Article 20 of the Constitution of India.

8. A plain reading of Section 108 of the Customs Act shows that the offence is attracted only if a summon being issued by the officer duly authorized in this behalf is intentionally disobeyed. Thus, violation or avoidance of summons issued by an officer who is not authorized or competent to issue the same cannot sustain a conviction under Section 174/175 IPC. Dealing with this issue in Shiam Lal Vs. Emperor. 15 (1914) Crl.L.J. 595 it was held that: “Shiam Lal has been convicted under Section 174 of the Indian Penal Code and sentenced to a fine of Rs.

30. The case has been submitted to this Court by the Additional Sessions Judge with the recommendation that the conviction and sentence be set aside. It appears that a decree was transferred to the Collector by the Civil Court for execution inasmuch as the property to be sold was ancestral property. In the course of the proceedings held in this execution case a Tahsildar, who is an Assistant Collector of the second Class, issued a summons to Shiam Lal to attend his Court in order to enable the Tahsildar to ascertain whether there was any incumbrance on the property ordered to be sold. Shiam Lal did not attend and thereupon he was prosecuted and sentenced as stated above. In order to sustain a conviction under Section 174 it must be shown that the summons issued was issued by a public servant legally competent as such public servant to issue the same and the accused intentionally omitted to attend in pursuance of the summons. In this case under the rules framed by the Local Government in regard to the sale of ancestral land, the Collector is empowered to summon any person whom he thinks it necessary to summon for the purpose of ascertaining the matters to be specified in the proclamation of sale and under rule 44 he can delegate his powers only to an Assistant Collector of the first Class. He could not delegate his authority to an Assistant Collector of the second class and, therefore, the Tahsildar, was not legally competent to issue the summons which Shiam Lal did not obey. Furthermore, in this case there is nothing to show that the non-compliance with the summons was intentional. Under these circumstances the conviction of Shiam Lal was illegal. I accordingly set it aside and direct that the fine imposed on him, if paid, be refunded.”

9. In Khota Ram and Ors. Vs. Emperor, 6 (1907) Crl.L.J. 107 it was held: “There is nothing in the Revenue Act authorizing the issue of such summons. Section 149 of that Act only provides for the attendance of persons within the limits of the estate within which they reside. Queen-Empress v. Subanna (1) shows that in the Madras Presidency there is an act III of 1869, giving power to issue summons for attendance of persons for purposes connected with the Revenue administration, but there is no such Act in the Punjab. Crown v. Kashi Ram (2) and Crown v. Kuria (3), show that arbitrators cannot be such be required to attend Court, and Ghulam Khan v. Empress (4) decided that it had not been shown that the attendance of a lambardar for the purpose of appointing a village chaukidar could be legally enforced. We are of opinion that the Tahsildar was not legally competent to issue summons for the attendance in Court of those munsifs, and we set aside the convictions and sentences. The fines, if paid, will be refunded.”

10. It is well settled that though by a retrospective legislation, the Legislature can confer a procedural competency on an officer, however an act or omission is not punishable as an offence unless it existed on the day when it was committed. In Rao Shiv Bahadur Singh and Anr. Vs. State of Vindhya Pradesh AIR 1953 SC 394, the Constitution Bench of the Hon‟ble Supreme Court held:

11. Thus, by revival of the procedure the officer can be made competent to issue summons however it cannot make the act an offence which was not an offence when it was allegedly committed in view of the want of competency of the officer issuing summons. No offence having been committed at the time when it is alleged, the Petitioner cannot be prosecuted for an offence by giving retrospective competence to the officer issuing summons.

12. The contention of the Learned Additional Solicitor General that this Court will not decide the issue regarding the competency of the officer to issue summons at the relevant time and thus the violation thereof being an offence as the same would be an issue to be decided during trial and in exercise of its power under 482 Cr.P.C. this Court by considering the same will not quash the criminal proceedings pending before the Learned Trial Court deserves to be rejected. In State of Haryana & Ors. Vs. Bhajan Lal & Ors. 1992 Supp(1) SCC 335 the Court considered in detail and summarized the legal position by laying down the following guidelines to be followed by the High Court in exercise of its inherent powers to quash criminal complaint.