- (1.) The subject matter of challenge in this appeal is an interlocutory order dated 21st March, 2012 passed by brother Debasish Kar Gupta, J. The impugned order reads as follows : "In view of the provisions for collecting the documents and evidences in course of enquiry which should be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the I.P.C., I find that the petitioners have made out a strong prima facie case of adhering to the provisions of Section 155(2) Cr.P.C. before taking such steps and the balance of convenience and/or inconvenience is in favour of granting some interim relief to the petitioners. The respondents shall be at liberty to continue with the enquiry on the basis of the said notices but they shall not take further steps in accordance with the provisions of Section 124 of the Customs Act, 1962 without the leave of this Court."
(2.) Mr. Bharadwaj, learned advocate, appearing for the appellant/Revenue, submitted that he is aggrieved by the direction by which the appellant was prevented from taking steps in accordance with the provisions of Section 124 of the Customs Act which empowers issuance of show cause notice before confiscation of goods.
(3.) Mr. Biswas, learned advocate, appearing for the writ petitioners/respondents, submitted that all offences under the Customs Act are non-cognisable and, therefore, magisterial permission is required before embarking on an enquiry. He, in support of his submission relied on a judgment in the case of Om Prakash v. Union of India, reported in 2011 (272) E.L.T. 321 (S.C.) : 2011 (24) S.T.R. 257 (S.C.). This judgment is an authority for the proposition that offences under the Customs Act and the Central Excise Act are non-cognisable. That does mean that the provisions of Section 155 of the Code of Criminal Procedure shall automatically be attracted and the provisions contained in Chapter XIII of the Customs Act and the powers given thereunder to the Customs Officers would stand curtailed.;