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Page No.# 1/8 GAHC020004952021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Tr.P.(Crl.) 1/2021 1:THE STATE OF NAGALAND REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE ( CRIME BRANCH), POLICE HEADQUARTER, NAGALAND KOHIMA VERSUS 1:SHRI. SAURABH SINGH AND 2 ORS R/O GURU GOVIND NAGAR VILLAGE, RAJPUR, AGRA-282001, UTTAR PRADESH 2:SHRI PAWAN KUMAR R/O SEWLA JAT NAI VILLAGE AWADI AGRA-282007 UTTAR PRADESH 3:ASSISTANT COMMISSIONER CUSTOM (PREVENTIVE DIVISION) DIMAPUR-NAGALAN Advocate for the Petitioner : APILA SANGTAM Advocate for the Respondent : HORMI P
BEFORE HON'BLE MR. JUSTICE S. HUKATO SWU ORDER Date : 15-11-2021 This is an application under Section 407 of the Code of
Page No.# 2/8 CrPC for transfer of the investigation with respect to GR Case No.105/2021 in connection with the State Crime P.S. case No.06/2021 under Section 414/37 of the IPC. The petitioner who is the Deputy Superintendent of Police, Crime Branch, Police Headquarters, Nagaland, Kohima, has filed the present petition for transfer of the investigation of this case to the Assistant Commissioner, Customs Preventive Division, Dimapur. The petitioner is represented by Ms. Apila Sangtam, learned counsel, who has submitted that the State Police manning the Inter State Narcotic Check Point at Khuzama Check Gate, Kohima, on the Kohima-Imphal-National Highway, intercepted an XUV-300 bearing Registration No. MN01AS- 1325; and gold weighing 48.14 kgs (approx) approximately worth Rs. 22,78,46,620/- were seized. The gold biscuits numbering 29 were seized hidden under the cover of the gear lever. The accused namely Saurabh Singh and Pawan Kumar, both residents of Uttar Pradesh were arrested on 05.10.2021. The investigation has been conducted and till date it has been revealed that the two accused persons were transferring the seized gold from Imphal in Manipur to Lucknow in Uttar Pradesh for a person named Himanshu Agarwal, a resident of Uttar Pradesh. The gold is suspected to be illegally smuggled into India by road through Myanmar. Learned Counsel for the State submits that the case is covered under the Customs Act, Section (Section 135 of the Customs Act, 1962) and the same is out of the functional jurisdiction of the State Police. The learned counsel for the
Page No.# 3/8 state submits that the Central Economic Intelligence Bureau has also brought out a notification addressed to the Chairman, Central Board of Direct Taxes and the Chairman, Central Board of Indirect Taxes and Customs, vide letter No. F.No.CEIB/CS- 3(1)ECI-DRI/2018-19, dated 19.12.2018, wherein it has been informed that all the field formations were to hand over such seizures to DRI for further enquiry/investigation. The letter is reproduced below for understanding the subject matter.
“GOVERNMENT OF INDIA Ministry of Finance Department of Revenue Central Economic Intelligence Bureau 8th Floor, B Wing-JanpathBhawan, Janpath, New Delhi 110001
_______________________________________________ ___________ F.No.CEIB/CS-3(1)EIC/DRI/2018-19 Date: 19 Dec, 2018 1. The Chairman, Central Board of Direct Taxes 2. The Chairman, Central Board of Indirect Taxes & Customs
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Sir,
Subject: Follow up of the meeting of the EIC hheld on 15.11.2018-reg.
I am directed to invite your kind attention to the minutes of the meeting of EIC dated 30.11.2018 circulated vide Office Memorandum No.CEIB/CS-3(2)/EIC/2017-18. Relevant extract of point no.5 under the agenda item “Multi-agency approach to target duty/tax evasion from Gold & Diamond Sector (ED), Income Tax & DRI is reproduced below: “DG, DRI flagged the issue of import/export and sale of gold. As per Section 123 of the Custom Act, gold is one of the listed commodities where the burden of proof to explain he source is on the person with whom the gold is found. Where a person is unable to prove with complete and requisite documentation, the entire gold is liable to be absolutely confiscated. Hence, it would be beneficial for all the agencies which seize gold in the course of their action, such as ED, IT, CBI, Police etc to share such details with the DRI/Customs and hand over the gold to them”. 2. I am further directed to request you to inform all the field formations to hand over such seizures to DRI for further enquiry/investigation.
case,
there
any reservation/objection in this regard, the same may kindly be
Page No.# 5/8 brought to the notice of the Bureau.
Yours faithfully, (Bhawani Shankar) Additional Director”
After having investigated into the matter for sometime it has now been observed that the State agency, the Police, has no authority to investigate into the matter and therefore, this petition is to transfer the matter to the DRI, Customs authority, for further investigation and necessary processes in terms of the Customs Act. The State Agency has so far obtained three remands but they are unable to proceed any further in view of the lack of jurisdiction by the State Police. Therefore, learned Counsel for the State has prayed that the matter may be transferred to the Principle Commissioner, DRI Customs, Dimapur. Appearing for the Respondents, Mr. Hormi, learned Counsel, submits that the petition is misconceived since Section 407 of the CrPC deals with ‘transfer of cases from one court to other court for jurisdictional matters’. It does not give the power to transfer cases during the course of investigation. Therefore, he submits that the petition is misconceived and cannot be allowed. Learned Counsel also submits that Section 77 of the CrPC provides that ordinary place of enquiry and trial should be conducted by the court within whose legal
Page No.# 6/8 jurisdiction the offence was committed, there is no provision in the Customs Act debarring the State police from investigating the matter. In fact, Section 6 of the Customs act empowers the Central Government to modify in the Official Gazette and enables either conditionally or unconditionally the Central or the State Government or local authority to function under the Customs Act. Therefore, he argues that there is no mistake in the State Police investigating the matter, as it is not prohibited under the Customs Act. He also submits that the matter has been under investigation for a considerable period of time and transfer of the matter may delay the process of investigation if handed over to a fresh Investigation Agency. He has, therefore, pleaded that there is no merit in the present petition. Learned Counsel Mr. Keduvi Zhotso appears on behalf of Proforma Respondent No.3 and submits that the customs are the appropriate authority to investigate the matter and it will be in fitness of things to direct that the matter may be handed over to the Assistant commissioner, Customs Preventive Division, Dimapur, for further investigation. I have considered the submissions made by the parties. The petition which is filed under Section 407 CrPC and is not exercisable by this Court as has been pointed out by the learned counsel, Mr. Hormi, the provision only deals with transfer of cases to different courts by the High Court. The most appropriate thing to do in the present petition would have been for the Customs to petition before the concerned forum
Page No.# 7/8 for allowing the Customs to investigate the case. The Police have expressed their helplessness for further investigation in the matter. This Court assumes that no offence under the I.P.C. has been made out in the present case. If that be so, the Police have no jurisdiction. The case could have been handed over to the Customs at the initial stage. However, this was not done, therefore, the present imbroglio. Despite the defective petition and the investigative error, justice must be done. The offenders cannot be let scot free for procedural/technical errors. There is no bar upon this Court to make exercises and pass appropriate orders under Section 482 CrPC to secure the ends of justice. Having considered the submissions and the rules pertaining to the present case, this Court is of the view that it will be appropriate for the Customs to investigate into the matter, as per the Customs Act wherein the power has been vested upon the Agency to investigate such cases. As informed to the Court, the Assistant Commissioner, Customs Preventive Division, Dimapur, is the appropriate authority. He shall, therefore, take over all records and seized gold from the I.O. of the case by preparation of elaborate inventory and take steps as per the law applicable. I.O. of GR No. 105/221 in connection with the State Crime Police Station case No. 06/2021 is directed to be handed over to the Customs under the supervision of Assistant Commissioner, Customs Preventive, Division, Dimapur, within a day or two. The records of the investigation such as CD and recorded
Page No.# 8/8 submissions under Section 161 or 164 of the CrPC shall also be handed over to the authorized Customs Officer. Let the matter be completed within a period of one week from the passing of this order. Copy of the order be furnished to the party concerned for compliance. The petition is hereby disposed in terms of the above directions.
Sd/- Sd/- JUDGE JUDGE Comparing Assistant