# AsSISTANT COLLECTOR OF CUSTOMS & ANR v. L. R. MALWANI AND ANR

- **Citation:** [1969] 2 S.C.R. 438
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Criminal Appeals Nos. 15 and 35 of 1967
- **Bench:** C. Shah, V. R.i\MASWAMI, G. K. Mitter, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/assistant-collector-of-customs-anr-v-l-r-malwani-and-anr-4512
- **Pages:** 10

## Headnote

Constitution of India, Art. 20(2)-Accused given benefit of doubt
by customs authority in respect of alleged offence under Sea CustO'ms
Act, 1878-Subsequent prosecution before Magistrate in respect of same
offence whether barred by nrticle-Principle of issue estoppel whether
applies-Delay in filing complaint, effect-Code of Criminal Procedure,
ss. 173(4)-Section whether applicable in a trial on complaint by customs uuthorities-S. 94(1) whether can be used to secure supply of
documents mentioned in s. 173(4) to the accused.
The accused persons were charged with having entered into a conspiracy at Bombay and other places m the beginnmg c.i October 1959 or
thereabout for the purposes of smuggling foreign goods into India and
having, in purauance of that consplfacy, smuggled several items
of
foreign goods in the years 1959 and 1960. In that connection an enquiry was held by the Customs authorities. ln the course of the enquiry
some of the goods said to have been smuggled were seized. After the close
of the enquiry those, goods were ordered to be confiscated. In addition
penalty was imposed on some of the accused. Accused No. 1 and 2 were
given by the Collector benefit of doubt on the ground that there was no
conclusive evidence against them.
Thereafter the Assistant Collector of
Customs after obtaining the required sanction of the Government filed a
complaint against five persons including Accused I and 2 under s. 120-B
I.P.C. read with s. 167 of the Sea Customs Act, 1878 as well as under
s. 5 .of the Imports and Exports (Control) Act,
1947. Before
the
commencement of the enquiry the 1st accused filed an application before
th~ Magistrate raising
therein various
questions of law namely
{i)
whether the prosecution of Accused I and 2 was barred by Art. 20(2)
of the Constitution by reason of the
decision of
the
Collector
of
Customs (ii) whether tl.ie finding of the Collector of Customs
operated as an issue estoppel in the criminal case against Accused 1 and 2,
(iii) whether the prosecution amounted to an abuse of the process of
the Court in view of the inordinate. delay in launching the same, and (iv)
whether s. 173(4) Cr. P.C. was applicable to the facts of the case, and
(v) whether the documents mentioned in the petition of Accmed No. 1
to the Magistrate could be summoned under s. 94 Cr. P.C.
The Magistrate dismissed the application of Accused No. 1.
In revision the High
Court, while agreeing with the Magistrate on other issues, did not agree
with' him that there was no need at the stage1 to summon the statements
of the witness recorded by the customs authorities in the enquiry under
the Sea Customs Act. It directed the
Magistrate
to
summon those
statements and to see that the prosecution made available copies of these
statements to the accused before the commencement of the enQuiry in
the case.
Against the orders of the High Court the customs authorities
as well as the accused appealed to this Court.
HELD : (i) In order to get the benefit of s. 403 Criminal Procedure
Code or Art. 20(2) it is necessary for an accused person to establish
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ASSTT. COLLECTOR CUSTOMS v. MALWANl
439
that he had been tried by a "court of competent jurisdiction" for an
offence and he is convicted or acquitted of that offence and the said
acquittal is in force. If that much is established, it can be contended
that he is not liable to be tried again for any other offence for which a
different charge from the one made against him might have been rnade
under s. 236 or for which he might have been convicted under s. 237.
It has been repeatedly held by this Court that adjudicatioμ before a
Collector of customs is not a "prosecution" nor the Collector of customs
a "Court". Therefore in the present case the plea of the accused based
on Art. 2()(2) could not be accepted. [442 B---G]
Maqboo/ Hussain v. State of Bombay,
[1953]
S.C.R.
730
and
Thomas Dana v. State of Punjab, [1959] S.C.R. 274, applied.
(ii) Before the accused can call into a

## Text

AsSISTANT COLLECTOR OF CUSTOMS & ANR.
v.
L. R. MALWANI AND ANR.
October l 6, 1968
[J, C. SHAH, V. R.i\MASWAMI, G. K. MITTER, K. S. HEGDE,
AND A. N. GROVER, JJ.j
Constitution of India, Art. 20(2)-Accused given benefit of doubt
by customs authority in respect of alleged offence under Sea CustO'ms
Act, 1878-Subsequent prosecution before Magistrate in respect of same
offence whether barred by nrticle-Principle of issue estoppel whether
applies-Delay in filing complaint, effect-Code of Criminal Procedure,
ss. 173(4)-Section whether applicable in a trial on complaint by customs uuthorities-S. 94(1) whether can be used to secure supply of
documents mentioned in s. 173(4) to the accused.
The accused persons were charged with having entered into a conspiracy at Bombay and other places m the beginnmg c.i October 1959 or
thereabout for the purposes of smuggling foreign goods into India and
having, in purauance of that consplfacy, smuggled several items
of
foreign goods in the years 1959 and 1960. In that connection an enquiry was held by the Customs authorities. ln the course of the enquiry
some of the goods said to have been smuggled were seized. After the close
of the enquiry those, goods were ordered to be confiscated. In addition
penalty was imposed on some of the accused. Accused No. 1 and 2 were
given by the Collector benefit of doubt on the ground that there was no
conclusive evidence against them.
Thereafter the Assistant Collector of
Customs after obtaining the required sanction of the Government filed a
complaint against five persons including Accused I and 2 under s. 120-B
I.P.C. read with s. 167 of the Sea Customs Act, 1878 as well as under
s. 5 .of the Imports and Exports (Control) Act,
1947. Before
the
commencement of the enquiry the 1st accused filed an application before
th~ Magistrate raising
therein various
questions of law namely
{i)
whether the prosecution of Accused I and 2 was barred by Art. 20(2)
of the Constitution by reason of the
decision of
the
Collector
of
Customs (ii) whether tl.ie finding of the Collector of Customs
operated as an issue estoppel in the criminal case against Accused 1 and 2,
(iii) whether the prosecution amounted to an abuse of the process of
the Court in view of the inordinate. delay in launching the same, and (iv)
whether s. 173(4) Cr. P.C. was applicable to the facts of the case, and
(v) whether the documents mentioned in the petition of Accmed No. 1
to the Magistrate could be summoned under s. 94 Cr. P.C.
The Magistrate dismissed the application of Accused No. 1.
In revision the High
Court, while agreeing with the Magistrate on other issues, did not agree
with' him that there was no need at the stage1 to summon the statements
of the witness recorded by the customs authorities in the enquiry under
the Sea Customs Act. It directed the
Magistrate
to
summon those
statements and to see that the prosecution made available copies of these
statements to the accused before the commencement of the enQuiry in
the case.
Against the orders of the High Court the customs authorities
as well as the accused appealed to this Court.
HELD : (i) In order to get the benefit of s. 403 Criminal Procedure
Code or Art. 20(2) it is necessary for an accused person to establish
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ASSTT. COLLECTOR CUSTOMS v. MALWANl
439
that he had been tried by a "court of competent jurisdiction" for an
offence and he is convicted or acquitted of that offence and the said
acquittal is in force. If that much is established, it can be contended
that he is not liable to be tried again for any other offence for which a
different charge from the one made against him might have been rnade
under s. 236 or for which he might have been convicted under s. 237.
It has been repeatedly held by this Court that adjudicatioμ before a
Collector of customs is not a "prosecution" nor the Collector of customs
a "Court". Therefore in the present case the plea of the accused based
on Art. 2()(2) could not be accepted. [442 B---G]
Maqboo/ Hussain v. State of Bombay,
[1953]
S.C.R.
730
and
Thomas Dana v. State of Punjab, [1959] S.C.R. 274, applied.
(ii) Before the accused can call into aid the rule of issue estoppel,
he must establish that in a previous lawful trial before a competent court
C
he has secured a verdict of acquittal which verdict is binding on his prosecutor.
In the instant case since the proceeding before the· Collector
was not a criminal trial it follows that the decision of the Collector did
not amount to a verdict of acquittal in favour of accused Nos. 1 and 2.
[444 A-BJ
Sambasivan v. Public Prosecutor, Federation of Malaya, [1950] A.C.
458 at p. 479, Pritam Singh v. State of Punjab, A.I.R. [1956] S.C. 415
D
ancl N. R. Ghose @ Nikhil Ranjan Ghose v. State of West
Bengal,
[1960] 2 S.C.R. 58, applied.
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(iii) The question of delay in filing the complaint may be a circumstance to be taken into consideration in arriving at the final verdict. .But
by itself it affords no ground for dismissing the complaint. [444 DJ
(iv) Section 173 Criminal Procedure is attracted only in a case investigated by a police officer under Ch. XIV of the Code followed by
a final report. Section 173(4) was incorporated into the Code by Central Act 25 of 1955 because of the changes effected in the mode of
trials in cases instituted on police ·reports.
Under the new
procedure
prescribed in s. 251 (A) of the Code, but for the facility provided to
him under s. 173 ( 4) an accuse person. would have been greatly handicapped in his defence.
But in a case instituted on complaint like
the
present, and governed by ss. 252 to 259 of the Code no such difficulty
arises and the position is as it was before the amendment of the Code
in 1955. [444 H; 445 G]
The High Court was wrong in holding that the Legislature did not
make available the benefit of s. 173 ( 4) Criminal Procedure Code in
cases instituted otherwise than on police reports by oversight. It is not
proper to- assume except on very good grounds that there is any lacuna
in any statute or that the legislature has not done its
duty
properly.
[445 HJ
(y) Section 9'4(1) does not empower a Magistrate to direct the prosecution to gtve copies of any documents to an accused person.
It was
impermissible for the High Court to read into s. 94 Criminal Procedure
Code the requirements of s. 173 ( 4) of the1 Code.
The High Court was
wrong in indirectly applying to cases instituted on private complaints the
requirements of s. 173(4). [446 E-F]
H
Further the High Court was not justified in interforittg with the discretion of the learned
Magistrate. Whether a
particular
document
should be summoned or not is essentially in the discretion of the trial
court. In the present case the reasons given by the Magistrate for his
440
SUI'REME COURT REPORTS
(1969) 2 $.C.R.
order were good reasons.
Unnecessary interference with the orders of
the ,trial court results in waste of public money and time as had happened
in the present case. [447 DI
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
15 and 35 of 1967.
A
Appeals from the judgment and order dated Octob.er 12,
B
1966 of the Bombay High Court in Criminal Revision Application No. 289 of 1966.
N. S. Bindra, R. M. Parikh and S. P. Nayar, for the appellants
(in Cr. A. No. 15 of 1967) and the respondents
(in Cr. A.
No. 35 of 1967).
N. N. Keswani, for the appellants (in Cr. A. No. 35 of 1967)
and the respondents (in Cr. A. No. 15 of 1967).
K. R. Chaudhuri, for the intervener (in Cr. A. No. 15 of
1967).
The Judgment of the Court was delivered by
Hegde, 1. These appeals by certificate arise from the decision
of the High Court of Bombay in Criminal Revision Application
No. 23 8 of 1966 wherein the following questions of law arise
for decision :
(i) Whether the prosecution from which thes.e Criminal Revision Petitions arose is barred under Art. 20
(2) of the Constitution as against accused Nos. 1 and
2 in that case by reason of the decision of the Collector of Customs in the proceedings under the Sea ·Customs Act?
(ii) Whether under any cucumstance the finding
of the Collector of Customs that the 1st and 2nd
accus.ed are not proved to be guilty operated as an
issue estoppel in the criminal case against those
accused?
(iii) Whether the present prosecution amounts to
an abuse of the process of the Court in view of inordinate delay in launching the same and consequently
whether it is liable to be quashed ?
(iv) Whether s. 173 ( 4), Criminal Procedure Code
is applicable to the facts of this case and
'(v) Whether the documents mentioned in the petition filed by the 1st accused on August 3, 196§ are required to be summoned under s. 94, Criminal Procedure Code?
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The aforementioned questions were raised
before the trial
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Magistrate by the 1st accused by means of an application but
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AssTT. COLLECTOR CUSTOMS v. MALWANI (Hegde, J.)
441
the learned Magistrate found no substance in the pleas advanced
in that app1icat10n and accordingly he dismissed the same as per
his order elated 25-1-1966. In revision, a Division Bench of the
Bombay High Court agreeing with the trial Magistrate negatived
all but one of the contentions advanced on behalf of accused
Nos. 1 and 2. It did not agree with the learned Magistrate that
there was no need, at that stage to summon the statements of
witnesses recorded by the Customs authorities in the enquiry
under the Customs Act.
It directed the learned Magistrate to
summon those statements and curiously enough, it went further
and directed him to see that the prosec.ution made available the
copies of those statements to the accused before the commencement of the enquiry in the case.
In so far as the other documents called for are concerned, the High Court after indicating,
what according to it, is the Jaw on the subject left the matter to
the discretion of the learned Magistrate.
Criminal Appeal No. 15 of 1967 is filed by the Assistant
Collector of Customs, Bombay and the State of Maharashtra and
Criminal Appeal No. 35 of 1967 is the appeal filed by accused
Nos. 1 and 2 in the case (Case No. 98 of 1965 in the Court of
the Chief Presidency Magistrate, Bombay).
The appellants in
Criminal Appeal No. 15 of 1967 challenge the correctness of the
decision of the Bombay High Court in so far as it went against
them and the appellants in Criminal Appeal No. 35 of 1967
challenge that decision in other respects.
The prosecution case is that the accused persons and some
other unknown persons had entered into a conspiracy at Bombay
and other places in the beginning of October, 1959 or thereabout
for the purpose of smuggling foreign goods into India and in pursuance of that conspiracy they had smuggled several items of foreign
goods in the years 1959 and 1960.
In that connection an enquiry was held by the Customs authorities.
In the course of the enquiry some of the goods said to
have been smuggled were seized.
After the close of the enquiry
those goods were ordered to be confiscated. In addition penalty
was imposed on some of the accused.
Thereafter on February
19, 1965, the Assistant Collector of Customs Bombay after obtain_ing the required s.anctio_n of the Governme~t filed a complaint
agamst ·five persons mcludmg the appellants rn Criminal Appeal
No. 35 of 1967 (accused Nos. 1 and 2 in the case)
under s.
120-B, I.P.C. read with els. (37), (75),
(76) and (81) of
s. 167 of the Sea Customs Act, 1878 (Act VIII of 1878) as
well as under s. 5 of the Imports and Exports
(Control) Act
19~7. Before the commencement of the enquiry in that
com~
plam!, the 1st accused filed on August 3, 1965, the application
mentiOned above.
3Sup.C.I.J69-ll
442
SUPREME COURT REPORTS
(1969) 2 S.C.R.
Now we shall proceed to examine the contentions set out
earlier.
Reliance on Art. 20 ( 2) is placed under the following . circumstances.
In the enquiry held by the Collector of Customs,
he gave the benefit of doubt to accused Nos. 1 and 2.
This is
what he stated therein :
"As regards M/ s. Larmel Enterprises
(of which
accused No. 1 is the proprretor and accused No. 2 is
the Manager) although it is apparent that they have
directly assisted the importers in their illegal activities
and are morally guilty. Since there is no conclusive
evidence against them to hold them as persons concerned in the act of unauthorised importation, they escape
on a benefit of doubt."
Despite this finding the Assistant Collector in his complaint
referred to earlier seeks to prosecute
these accused persons.
Hence the question is whether that prosecution is barred under
Art. 20(2) of the Constitution which says that no person shall
be prosecuted and punished for the same offence more than once.
This Art. has no direct bearing on the question at issue. Evedently those accused persons want to spell out from this Art. the
rule of autrefois acquit embodied in s. 403, Criminal Procedure
Code.
Assuming we can do that still it is not possible to hold
that a proceeding before the Collector of Customs is a prosecution for an offence.
In .order to get the benefit of s. 403, Criminal
Procedure Code or Art. 20 ( 2), it is necessary for an accused
person to establish that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted
of that offence and the said conviction or acquittal is in force.
If that much is established, it can be contended that he is not
liable to be triecl again for the same offence nor on the same facts
for any other offence for which a different charge from the one
made against him might have been made under s. 236 or for
which he might have been convicted under s. 23 7. It has been
repeatedly held by this Court that adjudication before a Collector
of Customs is not a "prosecution" nor the Collector of Customs
a '.'Court".
ln·Maqbool Hussain
v.
The State of Bombay('),
this Court held that the wording of Art. 20 of the Constitution
and the words used therein show that the proceedings ·therein
contemplated are proceedings ~f t~~ nat1:1re of criminal proceedmgs before· a court of law or a iud1c1al tnbunal and "prosecution"
in. this cont.ex~ would mean an initiation or starting of proceedmgs of a crurunal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute
(l) [1953] S.C.R. 730.
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ASSTT. COLLECTOR CUSTOMS v. MALWANI (Hegde, I.)
443
which creates the offence and regulates the procedure. This
Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under s. 167
of the Sea Customs Act and an order for confiscation of goods
had been passed, was subsequently prosecuted before a criminal
court for an offence under s. 23 of the Foreign Exchange Regulation Act in respect of the same act, the proceeding before the
Sea Customs authorities was not a "prosecution" and the order
for confiscation was not a "punishment" inflicted by a Court or
judicial tribunal within the meaning of Art. 20(2) of the Constitntion and hence his subsequent prosecution was not barred. The
said rule was reiterated in Thomas Dana v. State of Punjab(')
and in several other cases.
We shall not take up the contention that the finding of the
Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution. The issue estoppel rule is but
a facet of the doctrine of autrefois acquit.
In Sambasivan v.
Public Prosecutor, Federation of Malaya( 2 ), Lord MacDermott
enunciated the said rule thus :
"The effect of a verdict of acquittal pronounced by
a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the
person acquitted cannot be tried again for the same
offence. To that it must be added that the verdict is
binding and conclusive in all subsequent proceedings
between the parties to the adjudication. The maxim
"Res judicata pro veritate accipitur" is no Jess applicable to criminal than to civil proceedings. Here, the
appellant having been acquitted at the first trial on the
charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that
verdict and was precluded from taking any step
to
challenge it at the second trial. And the appellant was
no less entitled to rely on his acquittal in so far as it
might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain,
but it undoubtedly reduced in some degree the weight
of the case against him, for at the first trial the facts
proved in support of one charge were clearly relevant
to the other having regard to the circumstances in which
the ammunition and revolver were found and the fact
that they fitted each other."
The rule laid down in that decision was adopted by this
Court in Pritam Singh v. State of Punjab(8 ) and again in N.R .
Ghose alias Nikhil Ranjan Ghose v. State of West Bengal(').
(!) [1959] S.C.R. 274.
(2) [1950] A.C. 458 at p. 479.
(3) A.I.R. 1956 S.C, 415.
(4) (1960] 2 S.C.R. 58.
444
SUPREME COURT REPORTS
(1969] Z S.C.R.
But before an accused can call into aid the above rule, he must
establish that in a previous lawful trial before a competent court,
he has secured a verdict of acquittal which verdict is binding on
his prosecutor.
In the instant case for the reasons already mentioned, we are unable to hold that the proceeding before the Collector of Oustoms is a criminal trial. From this it follows that
the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2.
This takes us to the contention whether the prosecution must
be quashed because of the delay in instituting the same.
It is
urged on behalf of the accused that because of the delay in launching the same, the present prosecution amounts to an abuse of the
process of the Court.
The High Court has repelled that contention. It has come to the conclusion that the delay in filing
the complaint is satisfactorily explained. That apart, it is
not
the case of the accused that any period of limitation is prescribed
for filing the complaint.
Hence the court before which the complaint was filed could not have thrown out the same on the sole
ground that there has been delay in filing it.
The question of
delay in filing a complaint may be a circumstance to be taken
into consideration in arriving at the final verdict.
But by itself
it affords no ground for dismissing the
complaint.
Hence we
see no substance in the contention that the prosecution should be
quashed on the ground that there was delay in instituting the
complaint.
We also see no merit in the contention that the accused in
this case are entitled to the benefit of s. 173 ( 4), Criminal Procedure Code which provides that before the commencement of
the enquiry or trial the officer-in-charge of the police station who
forwards a report under s. 173, Criminal Procedure Code, should
furnish or cause to be furnished to the accused, free of cost, a
copy of the report forwarded under s. 17 3 (1 ) , Criminal Procedure Code of the first information report recorded under s. 154,
Criminal Procedure Code and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under s. 164,
Criminal. Procedure Code and the statements recorded ·under
s. 161, Criminal Procedure Code of all the persons whom the
prosecution proposes to examine as its witnesses.
On a plain reading of s. 173, Criminal Procedure Code, it is
clear that the same is wholly inapplicable to the facts of the pre-·
sent case.
In the instant case no report had been sent under
s. 173, Criminal Procedure Code.
Therefore that provision is
not attracted. That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code, followed up by a final report under s. 173, Criminal Procedure Code. It may be remembered that sub-s. ( 4) of
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ASSTT. COLLECTOR CUSTOMS v. MALWANI (Hegde, J.)
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s. 173, was incorporated into the Criminal Procedure Code for
the first time by Central Act 26 of 195.5, P!esumabl:y b~cause of
the changes effected in the mode of trials m cases mstttuted on
police reports. Before the Criminal Procedure Code was amended by Act 26 of 1955, th~re .was no diffe!ence in the PI"?cedure
to be adopted in the cases mst1tuted on pohce reports and m other
cases. Till then in all cases irrespective of the fact whether they
were instituted on police reports or on private complaints, the
procedure regarding enquiries or trials was identical. In both
type of cases, there were two distinct sta&es i.e., the enquiry stage
and the trial stage.
When the prosecut10n witnesses
were examined in a case before a charge is framed, it was open to the.
accused to cross-examine them.
Hence there was no need for
making available to the accused the documents mentioned in subs. ( 4) of s. 173, Criminal Procedure Code. The right given to
him under s. 162, Criminal Procedure Code was thought to be
sufficient to safeguard bis interest. But Act 26 of 1955 as mentioned earlier made substantial changes in the procedure to be
adopted in the matter of enquiry in cases instituted on police reports. That procedure is now set out in s.
251 (A), Criminal
Procedure Code. This new procedure truncated the enquiry
stage.
Section 251 (A), Criminal Procedure Code says that the
Magistrate, if upon consideration of all the documents referred to
in s. 173 and making such examination if any, of the accused as
be thinks necessary and after giving the prosecution and the
accused an opportunity of being beard considers
the
charge
against the accused to be groundless he shall discharge him but if
he is of opinion that there is· ground for presuming that the accused has committed an offence triable as a warrant case which
he is competent to try and which in his opinion could be adequately puinshed by him, he shall frame in writing a charge
against him. Under the procedure pn~scribed in s. 251(A), Criminal Procedure Code but for the facility provided to him under
s. 173 ( 4) of that Code an accused person would have been
greatly handicapped in bis defence. But in a case instituted on a
complaint, like the one before us and governed by ss. 252 to 259
of the Criminal Procedure Code, no such difficulty arises. Therein the position is as it was before the amendment of the Criminal Procedure Code in 19 5 5.
We ard. unable to agree with the learned Judges of the High
Court that the legislature did not make available the benefit of
s. 173 ( 4), Criminal Procedure Code in cases instituted otherwise than on police reports by oversight. The observations of the
learned Judges in the course of their judgment that "Evett the
great Homer occasionally nods.
There is nothing to show that
the legislature has applied its mind to the question of the amendment of the procedure so far :is the investigation of an offence
446
SUPREME COURT REPORTS
[1969] 2 .C.R.
under the Sea Customs Act is concerned at the time when it was
considering amendments to the Criminal Procedure Code" is
without any basis. In the first place, it is not proper to assume
except on very good grounds that there is any lacuna in any statute
or that the legislature has not done its duty properly. Secondly
from the history of the legislation to which reference has been
made earlief, the reason for introducing s. 173 ( 4) is clear. The
learned judges of the High Court were constrained to hold that
s. 173 ( 4), Criminal Procedure Code in terms does not apply to
the present case.
But strangely enough that even after coming
to the conclusion that provision is inapplicable to the facts of the
present case, they have directed the learned Magistrate to require
the prosecution to make available to the accused, the copies CJf
the statements recorded from the prosecution witnesses during
the enquiry under the Customs Act.
They have purported to
make that order under s. 94 ( 1), Criminal Procedure Code which
to the extent material for our present purpose reads :
"Whenever any Court ... ·'· . . . . . considers that
production of any document or other thing is necessary or desirable for the purposes of any . . . . . . enquiry, trial or other proceeding under this Code by or
before such Court . . . . . . such Court may issue a
summons . . . . . . to the person in whose possession and
power such document or thing is believed to be, requiring him to attend and produce it. or to produce it, at the
time and place stated in the summons or order."
This section does not empower a Magistrate to direct the prosecution to give copies of anv documents to an accused person.
That much apoears to be plain from the language of that section.
It was impermissible for the High Court to read into s. 94, Criminal Procedure Code the requirements of s. 173 ( 4), Criminal
Procedure Code. The High Court was not justified, in indirectly
applying to cases instituted on private comolaints the requirements of s. 173 ( 4), Criminal Procedure Code.
That apart we do not think that the High Court was justified
in interfering with the discretion of the learned Magistrate.
Whether a oarticular document should be summoned or not is
essentially in the discretion of the trial court. In the instant case
the Soecial Public Prosecutor had assured the learned trial
Magistrate that he would keep in readiness the statements of v..itnesses recorded bv the Customs authorities and shall make avail-
. able to the defence Counsel the statement of the concerned witness as and when he is examined. Iii view of that assurance, the
learned Magistrate observed in his order :
"The recording of the prosecution evidence is yet
con:unence in this case and at present there are no mate>
A
B
c
D
E
F
G
H
•
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A
B
c
D
E
ASSTT. COLLECTOR CUSTOMS v. MALWANI (Hegde, !.)
447
rials before me to decide whether or not the production
of any of the statements and documents named by the
accused in his application is desirable or necessary for
the purpose of the enquiry or trial. As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of
the hearing of the case. The request made for the issue of
the summons under s. 94, Criminal Procedure Code is
also omnibus."
The reasons given by the learned Magistrate in support of his
order are good reasons. The High Court has .not come to the
conclusion that the documents in question, if not produced
in court are likely to be destroyed or tampered with or the same
are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a
fair trial unless they are supplied with the copies of those statements even before the enquiry commences.
Except for very good
reasons, the High Court should not interfere with the discretion
conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of cases and result in waste of public money and time as has
happened in this case.
For the reasons mentioned above, we allow Criminal Appeal
No. 15 of 1967 and dismiss Crimina1 Appeal No. 35 of 1967. In
other words, we restore the order of the learned Magistrate.
G.C.
Criminal Appeal No. 15 of 1967 allowed.
Criminal Appeal No. 35 of 1967 dismissed .