Commissioner of Customs Vs. State and anr. - Court Judgment

Excerpt:

.....this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. with regard to the present facts, the high court found that the defence raised by the accused was not probable. in respect of the accused's stand that he had lost a blank cheque bearing his signature, the high court noted that in the instructions sent by the accused to his bank for stopping payment, there is a reference to cheque no. 0886322, dated 20-7-1999. this is in conflict with the complainant's version wherein the accused had given instructions for stopping payment in respect of the same cheque, albeit one which was dated 8-2-2001. the high court also noted that if the accused had indeed lost a blank cheque bearing his signature, the question of his mentioning the date of the cheque as 20-7-1999 could not arise. furthermore, during the cross-examination of the complainant, it was suggested on behalf of the accused that the complainant had the custody of the cheque since 1998. this suggestion indicates that the accused was aware of the fact that the complainant had the cheque, thereby weakening his claim of having lost a blank cheque. once the cheque..........four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case."a bare perusal of this section would show that the section can be invoked only where an offence committed by an accused is punishable only with fine. in case of non-payment of fine on conviction the court can give directions for imprisonment of the accused/offender for an appropriate term, as provided in the section. the maximum sentence is six months.3. in the present case, the learned acmm was conducting trial. during trial an adjournment was sought by the by the counsel/special public prosecutor for the state. the learned acmm imposed costs on the state to be reimbursed to the accused on the ground that accused had to come from mumbai to attend the proceedings and unnecessary adjournment was sought.4. there is no power granted to a metropolitan magistrate under cr. p.c. for awarding costs to the accused for attending the court proceedings whether an adjournment is sought or not and there is no inherent power available to mm. the only power granted to magistrate under cr. p.c. is to grant cost to the witnesses for attending the court for deposition.5. i,.....

Judgment:

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

1. The petitioner by this petition has assailed order dated 13 th April, 2010 whereby the learned ACMM exercised power under Section 67 of IPC and sentenced the Commissioner of Customs to imprisonment for a period of six months for non-payment of cost of Rs. 23,307/-.

2. Section 67 of IPC reads as under:

"Section 67. Imprisonment for non-payment of fine when offence punishable with fine only -If 1 the offence be punishable with fine only, [the imprisonment which the Court imposes in default of payment of the fine shall be simple, and] the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any terms not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any terms not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case."

A bare perusal of this Section would show that the Section can be invoked only where an offence committed by an accused is punishable only with fine. In case of non-payment of fine on conviction the Court can give directions for imprisonment of the accused/offender for an appropriate term, as provided in the Section. The maximum sentence is six months.

3. In the present case, the learned ACMM was conducting trial. During trial an adjournment was sought by the by the counsel/Special Public Prosecutor for the State. The learned ACMM imposed costs on the State to be reimbursed to the accused on the ground that accused had to come from Mumbai to attend the proceedings and unnecessary adjournment was sought.

4. There is no power granted to a Metropolitan Magistrate under Cr. P.C. for awarding costs to the accused for attending the court proceedings whether an adjournment is sought or not and there is no inherent power available to MM. The only power granted to Magistrate under Cr. P.C. is to grant cost to the witnesses for attending the court for deposition.

5. I, therefore, consider that power exercised by the learned ACMM in this case asking prosecution to reimburse the cost for attending proceedings to the accused was unlawful. The learned ACMM thus exceeded his power in directing the prosecution to reimburse the cost to the accused for attending the court proceedings when the Public Prosecutor was on leave. The court of ACMM had only to see whether the adjournment was being sought for reasonable grounds or not. If the adjournment is sought on unreasonable grounds, appropriate cost can be imposed to discourage seeking of adjournments and cost has to be deposited with the State and it cannot be given to the accused.

6. The learned ACMM could not have resorted to Section 67 of IPC for recovery of cost. When procedure is prescribed under Cr. P.C. itself for recovery of cost by attaching movable/immovable assets, the order passed by learned ACMM seems to be actuated by extraneous reasons as a series of orders of this ACMM in respect of customs cases have been found to be suffering from similar malice.

7. The petition is allowed. The order of ACMM is set aside. A copy of this order be sent to Chief Justice.