(Jagdish Singh Khehar and S.A. Bobde, JJ.)
Gurnam Singh ___________________ Appellant
v.
Supdt. of Customs (Preventive) _______ Respondent
Criminal Appeal No. 2017 of 2009, decided on March 18, 2015
The Order of the court was delivered by
Order
On 24.09.1993, based on an order passed by the Collector/Commissioner of Customs (Preventive), 2080 kgs of cardamoms of foreign origin, valued at Rs. 6,24,000/-, 12,330 kgs of javitir (mace) of foreign origin, valued at Rs. 6,16,500/- and 68,000 kgs of cloves of foreign origin, valued at Rs. 34,00,000/- was confiscated by the Customs Department, from certain importers. Since the Customs Department did not possess any warehousing facility, on the same day i.e. on 24.09.1993, the appellant herein was contacted to keep the above goods in safe custody. On 24.09.1993 itself, he executed a superdnama acknowledging that he was having intimate relations with the importers, and accordingly, based on a mutual consent of the Customs Department as also the importers, he accepted to keep the aforementioned seized articles in his godown and in his physical custody. In executing the above superdnama, the appellant herein undertook as under:
“I hereby undertake to produce the above goods intact in the same condition as it pursuit (reasonable wear and tear expected) whenever called upon to do so by the proper Customs and Central Excise authorities and not to deliver the same to any other person or otherwise dispose of or deal with the same without an order in writing from proper Customs and Central Excise authorities. I further agreed that in the event of any loss of the goods which is arising out of any act on my part or negligence in keeping and preserving of the goods which I established to be delivered, I will be bound to compensate such appropriate amount to the Department of Customs and Central Excise, Shillong which is equivalent to then seizure value of the goods.”
(emphasis is ours)
The pleadings in this case, as also, the factual position emerging out of the orders available on the record of this case indicate that the entire component of javitir (mace) was not available with the appellant. Likewise, a part of the cloves and cardamoms, handed over to him, were also not in his custody. It is, therefore, that a Demand Notice dated 05.09.1995 was issued to the appellant, requiring him to depost the payments in lieu of seizure value, of the deficiency of the goods, which were placed in his custody. On account of the fact, that the appellant did not make the above deposit, Crl. Complaint Case No. 142 of 2005 was initiated by the Superintendent of Customs (Preventive), New Checkon, PO Imphal, before the Chief Judicial Magistrate, Imphal, Manipur. The facutal position indicated hereinabove, is apparent from the narration recorded in paragraphs 8 and 9 of the Criminal Misc. Case. Paragraphs 8 and 9 are accordingly extracted hereunder:
“8. That though the aforesaid demand notice dated 5.9.1995 for payment of the seizure value of seized goods served on Sh. Gurnam Singh though was duly received by him. He failed to deposit the requisite amount. Thereafter, in exercise, of the powers conferred by clause (2) of section 142(1) of the Customs Act, 1962 the Deputy Commissioner, Customs(Prev), North Eastern Region, Shilling issued a detention order dated for recovery of the said amount of Rs. 32,94,000 by detaining and selling of goods.
Now, it has been nearly ten years from the date of the above mentioned demand notice that the said Gurnam Singh has not made himself physically available at his place at Imphal he has neither paid the amount nor has there been any explanation shown by him.
9. That as a result of the act of the accused Sh. Gurnam Singh he has caused a loss of Rs. 32,94,000 to the Department his conduct of non payment of the said amount or of failure to give explanation for the removal of the said cloves and Cardamoms from the custody causing loss to the department which includes public revenue as well as his missing from his place of residence at Imphal for the last many years till the date has contributed to a great degree to defraud the Government/department and to cause loss to the tune of Rs. 32,94,000 the intent of the accused cannot be inferred otherwise except that of the criminal intent.”
Dissatisfied with the initiation of the criminal proceedings against him, the appellant approached the Gauhati High Court (hereinafter referred to as ‘the High Court’) by filing a Criminal Petition No. 03 of 2006, wherein, he sought quashing of the above proceedings. The High Court declined to accept the prayer made by the appellant, and rejected his prayers, by an order dated 26.09.2008.
Dissatisfied with the proceedings initiated against him in the Crl. Complaint Case No. 142 of 2005 filed before the Chief Judicial Magistrate, Imphal, as also, the order passed by the High Court on 26.09.2008, the appellant has approached this Court, through the instant appeal.
Having heard learned counsel for the rival parties, and having examined the documents available on the record of this case, we are satisfied, that the proceedings initiated against the appellant were on account of the factual position depicted in paragraphs 8 and 9 of the Crl. Complaint Case No. 142 of 2005 (the aforesaid paragraphs have been extracted hereinabove). The grievance expressed therein is that, the appellant had failed to deposit the recovery amount depicted in the Demand Notice dated 05.09.1995. The fact that it was open to the authorities to recover from the appellant the payment in lieu of goods deposited with him for safe custody is apparent from the undertaking given by the appellant in the “superdnama” (conditions of temporary custody), dated 24.09.1993. The same has also been extracted hereinabove. It is therefore apparent, that in view of the appellant’s written acknowledgement he could have been required to make good the deficiency in the goods deposited with him, by making payment therefor. The complaint also alleges, that action was initiated against the appellant, only on account of his having not deposited the required amount, consequent upon the issuance of Demand Notice dated 05.09.1995.
Learned counsel for the appellant states that the appellant has always been ready and willing, and is still ready and willing, to deposit the amount of compensation, along with interest, in lieu of the deficiency of goods alleged.
In the above view of the matter, we are of the view that ends of justice would be met, if the the appellant deposits the amount indicated in the Demand Notice dated 05.09.1995, along with interest at the rate of 9%. The appellant undertakes to deposit the amount claimed from him by the Collectorate of Customs and Central Excise, Shillong, along with interest above-mentioned, within four weeks from today. In the event of the appellant not making the above deposit, the instant appeal will be deemed to have been dismissed, resulting in the revival of the proceedings pending before the Chief Judicial Magistrate, Imphal, Manipur. In case such a deposit is not made, it shall also be open to the Customs Department, to recover the amount due, as arrears of land revenue.
The proceedings initiated against the appellant before the Chief Judicial Magistrate, Imphal, Manipur are quashed in terms mentioned hereinabove.
The appeal is disposed of in the above terms.
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