Varkey George v. State of Kerala; Gagan Thaneja v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 ``` ``` CRL.MC NO. 5733 OF 2021 ``` ``` IN S.C.NO.125/2012 OF ADDITIONAL SESSIONS COURT - VIII, ``` ## **`ERNAKULAM`** ## **`PETITIONER/1ST ACCUSED:`** ``` VARKEY GEORGE, S/O GEORGE, AGED 52 YEARS RESIDING AT CHUDKATTIL HOUSE, NEAR CHAKKULATHUKAVU, NEERETTUPURAM P.O., THALAVADY VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT ``` ``` BY ADV.SRI.JAYAPRASAD M R ``` ## **`RESPONDENTS/STATE:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 ``` ``` 2THE EXCISE CIRCLE INSPECTOR, EXCISE RANGE OFFICE, ERNAKULAM-682 018 ``` ``` BY SRI.V.S SREEJITH, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.08.2022, ALONG WITH Crl.MC.4736/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.MC NO. 4736 OF 2022 ``` ``` IN S.C.NO.125/2012 OF ADDITIONAL SESSIONS COURT - VIII, ``` ## **`ERNAKULAM`** ## **`PETITIONER/SECOND ACCUSED:`** ``` GAGAN THANEJA S/O. RAMESH CHAND, AGED 35 YEARS RASALPUR, GANNUR TALUK, JAINPUR POST, SONIPAT DISTRICT, STATE OF HARYANA., PIN - 131027 BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.N.M.JAMES SRI.SHAHID AZEEZ SMT.RESHMA SANTHOSH SRI.RENJISH S. MENON ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ``` 2THE EXCISE CIRCLE INSPECTOR EXCISE RANGE OFFICE, ERNAKULAM., PIN – 682 018 BY SRI.RENJITH GEROGE, SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.08.2022, ALONG WITH Crl.MC.5733/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 3 ``` ## **`ORDER`** ## **`Dated this the 16[th] day of August, 2022`** These two petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C') by the 1[st] and 2[nd] accused in Crime No.65 of 2009 seeking to quash the final report filed in the above crime by Excise Range Office, Ernakulam and pending consideration of Additional Court of Sessions-VIII, Ernakulam (for short ‘the court below’) as S.C.No.125/2012. 2. The averments being common are referred to in brief:Petitioners were arrayed as accused in Crime No.65/2009 of Excise Range Office, Ernakulam, alleging commission of offences punishable under Sections 6, 10, 55(a) and 58 of the Kerala Abkari Act, 1077 (for short ‘the Act’). The certified copy of the crime and occurrence report is produced alongwith the petitions on hand as Annexure A1. On completion of the investigation in the above crime, the 2[nd] respondent has filed a final report before Judicial First Class Magistrate Court-II, Ernakulam chargsheeting the petitioners for offences referred to above, ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 4 ``` certified copy of which is produced alongwith the petitions on hand as Annexure A2. 3. The allegations against the petitioners were that on 25.11.2009, they were found in possession and transportation of 1814 bottles, each bottle containing 750 ml of Foreign made Foreign liquor from the Customs Bonded Warehouse by name Pernod Ricold India Private Ltd. and Agnetta International Ltd. at Delhi to the Customs Bonded Warehouse by name Cana Traders at Kochi. The above mentioned liquor was transported through the Green Fright carriers. Petitioners were arrested and were subsequently released on bail. Judicial First Class Magistrate Court-II, Ernakulam initiated committal proceedings on appearance of the petitioners before that court as C.P.No.10/2011. Thereafter the case was committed to Court of Sessions, Ernakulam and registered on it’s file as S.C.No.125/2012. Lateron the case was made over to Additional Court of Sessions-VIII, Ernakulam for disposal and in that context, the petitioners have approached this Court by filing the petitions on hand. 4. It is submitted by the respective counsel appearing for the petitioners that even according to the prosecution, the ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 5 ``` Foreign made Foreign liquor was found in transit from the Customs Bonded Warehouse at Delhi to the Customs Bonded Warehouse at Kochi. According to him, similar issue was dealt with by a learned Single Bench of this Court in Naresh Goyal v. Circle Inspector of Excise [2013 (2) KLT 726] and has held that the movement of liquor from one bonded warehouse to another bonded warehouse is neither an import under Section 6 nor a transport under Section 10 of the Act. According to the learned counsel, the ratio of the above reported case will squarely be applicable in the case on hand and therefore the final report laid against the petitioners is only to be quashed. According to the learned counsel, 1[st] accused though has applied for discharge by filing Crl.M.P.No.2076/2016 in S.C.No.125/2012, the said application was dismissed by Additional Court of Sessions-VIII, Ernakulam by order dated 26.05.2021, true copy of which is produced alongwith Crl.M.C.No.5733/2021 as Annexure A3. According to him the court below is highly erred and unjustified in dismissing the application, since the situation on hand is covered by the ratio cited supra. 5. The learned Public Prosecutor on instructions submitted that final report and further proceedings initiated in ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 6 ``` S.C.No.125/2012 are not liable to be quashed, since the authorities have acted legally and properly. 6. This Court has gone through the decision cited above. It was 8[th] accused, who approached this Court in the said case. 8[th] accused was the Chairman of M/s.Jet Airways (India) Pvt. Ltd. The 7[th] accused in the said case at the relevant time was working as General Manager of Warehouse and Distributor of the Company. 6[th] accused in the said case was working as the Purchase Manager in the Company and the Company was operating international flight services from Cochin too. For serving ‘champagne’ (a group of wine-mild alcoholic drink) to the passengers travelling in international flights, Purchase Manager of the Company placed orders to M/s.Moet Hennessy India Ltd. for purchasing 30 cases of champagne on specific conditions. After complying with the formalities, 30 cases of champagne were imported. While transporting those from Panvel, Mumbai to Cochin on a valid bond to bond transfer permit issued by the Customs, it was intercepted by the 2[nd] respondent. Thereafter, the goods were handed over to the 1[st] respondent and the 1[st] respondent in turn registered the said crime. In the above factual context that the Single Bench has ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 7 ``` laid the dictum that the liquor at the time of seizure was on transit from one bonded warehouse to another bonded warehouse and that transit of the nature cannot be treated as import or transport respectively under Sections 6 and 10 of the Act. 7. In the case on hand, 1814 bottles, each containing 750ml of Foreign made Foreign liquor, was found at South Railway Station, Ernakulam. Those were seized and the crime in question was registered and the petitioners were arrayed as 1[st] and 2[nd] accused alleging that Foreign made Foreign liquor had been imported and transported by them. In fact the contraband was transported from the Customs Bonded Warehouse by name Pernod Ricold India Private Ltd and Agnetta International Ltd at Delhi to the Customs Bonded Warehouse namely Cana Traders at Kochi. True copy of the order passed by the Commissioner of Customs, Kochi is produced alongwith Crl.M.C.No.5733/2021 as Annexure A4. The order reads: “a) I confiscate the 17 bottles of imported liquor totally valued Rs.2791/- under Section 111(j) of the Customs Act, 1962 and since they are not physically available, I impose a redemption fine of Rs.1,000/- (Rupees One Thousand only) under Section 125 ibid to be paid jointly or severally by Shri.R.Muraleedharan Nair and Shri.R.Bijukumar; ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 8 ``` b) I impose a penalty of Rs.500/- (Rupees Five Hundred only) each on Shri.R.Muraleedharan Nair and Shri.R.Bijukumar in their personal capacity under Section 112(a) of the Customs Act, 1962; c) I also order payment of duty amount of Rs.4468/(Rupees Four Thousand Four Hundred Sixty Eight only) under Section 28 (1) of the Customs Act, 1962 along with interest under Section 28 AA read with Section 72 (1) (a) ibid. The duty amount along with interest shall be paid jointly or severally by Shri.R.Muraleedharan Nair and Shri.R.Bijukumar.” 8. In the case on hand the officials of the State have seized the contraband and Commissioner of Customs imposed a penalty on them while seizing the contraband and registering the crime. Since the contraband is being transported from one bonded ware house to another bonded warehouse, the officials of the State have no authority to seize it and register the crime on hand. The petitioners were arraigned as accused in the crime on hand on wrong premises. The crime ought not to have been registered by the Officials. This Court has no hesitation on the basis of the dictum in Naresh Goyal supra that the registration of the crime and implication of petitioners as accused there is improper and illegal. The final report laid on the basis of the above crime is liable to be quashed. ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 9 ``` In the result, both Crl.M.Cs are allowed. The final report laid in Crime No.65/2009 and S.C.No.125/2012 registered on its basis and all further proceedings pursuant thereto are quashed forthwith as against both petitioners. Sd/- MARY JOSEPH JUDGE ``` NAB ``` ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 10 ``` ## **`A PPENDIX OF CRL.MC 5733/2021`** ``` PETITIONER’S ANNEXURES: ``` - `ANNEXURE A1 THE CERTIFIED COPY OF THE CRIME AND OCCURRENCE REPORT IN CR NO 5/2009 OF EXCISE RANGE OFFICE, ERNAKULAM` - `ANNEXURE A2 THE CERTIFIED COPY OF THE FINAL REPORT IN CR NO 65/2009 OF EXCISE RANGE OFFICE, ERNAKULAM` - `ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 26.5.20201 IN CRL MP NO 2076/2016 IN SC NO 125/2012 ON THE FILES OF THE ADDITIONAL SESSIONS COURT-VIII, ERNAKULAM` - `ANNEXURE A4 TRUE COPY OF ORDER DISPATCHED ON 28.11.2013 PASSED UNDER THE CUSTOMS ACT 1962` - `ANNEXURE A5 TRUE COPY OF ORDER IN CRL.M.C 3788 OF 2010 OF THIS HON’BLE COURT DATED 15.11.2010` - `ANNEXURE A6 TRUE COPY OF THE PETITION FILED BEFORE THE ADDITIONAL SESSIONS COURT-VIII, ALONG WITH THE ANNEXURE THEREIN` - `ANNEXURE A7 TRUE COPY OF REPORT FILED BY THE 2ND RESPONDENT DATED 13.10.2016.` ## `RESPONDENTS’ ANNEXURES: NIL` ``` //TRUE COPY// ``` ``` P A TO JUDGE ``` ``` Crl.M.C.Nos.5733 of 2021 & 4736 of 2022 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 4736/2022`** ``` PETITIONER’S ANNEXURES ``` ``` ANNEXURE A1THE TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN C.R.NO.65/2009 OF EXCISE RANGE OFFICE, ERNAKULAM ANNEXURE A2THE CERTIFIED COPY OF THE FINAL REPORT IN C.R.NO.65/2009 OF EXCISE RANGE OFFICE, ERNAKULAM ``` ``` RESPONDENTS’ ANNEXURES: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```