- (1.) This is an application under Section 439(2) read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) filed by the petitioner for cancellation of bail granted to the opposite party by the learned Chief Metropolitan Magistrate (hereinafter called the CMM), Calcutta dated 30.9.03 in a case under Section 104 of CUSTOMS ACT, 1962 for offence punishable under Section 132 read with Section 135 of CUSTOMS ACT, 1962.
(2.) Learned Advocate for the petitioner contended that the learned CMM, Kolkata by order dated 30.9.03 granted bail to the opposite party who was produced before him on 11.9.03 for alleged offence under Section 135 read with Section 132 of the CUSTOMS ACT, 1962. The learned Magistrate granted bail observing that Section 132 of the CUSTOMS ACT, 1962 is bailable, and alleged offence under Section 135(1)(c) of the CUSTOMS ACT, 1962 was committed before the amending provisions of Section 135(1)(c) of the CUSTOMS ACT, 1962 and implicating the accused under the said Section does not arise at all and, with such observation the learned Magistrate granted bail. He contended that the order passed by the learned Magistrate is totally bad in law and the learned Magistrate passed the order due to misconception of law. He contended that according to Section 4 of the Foreign Trade (Development and Regulation) Act, 1992 all orders made under Imports And Exports (Control) Act, 1947 and in force immediately before the commencement of the Act shall , so far as they are not inconsistent with the provisions of this Act, continue to be in force and shall be deemed to have been made under this Act. Therefore, Imports and Exports Control Order was not repealed and if any Act is repealed Parliament can do it and Ministry of Commerce by notice cannot overrule any Act passed by the Parliament.
(3.) He contended that it is a case of misdeclaration of weight. The O.P. is the proprietor of M/s. Lokenath Exports and he exported the goods declaring as wall coverings (article of silk) and declared the weight of the goods as 10937.5 Kgs. The said goods was discharged at the port of Dubai. Overseas enquiry was undertaken and the said container bearing No. YMLU 2849618 was weighed at port Dubai and the net weight was found 4290 Kgs. and not 10937.5 Kgs. as declared by the opposite party. it is clear that the opposite party gave misdeclaration of the weight of consignment to avail undue drawback. It violated provisions of Section 3(3) of the Export Control Order, 1988 and it was not changed after the amendment dated 14.5.03. The offence was made on 14.2.03. Clause 3(3) of the Export Control Order stipulates that if in any case it is found that the value, sort specification, quality of description of the goods to be exported are not in conformity with the declaration of the exporter, the export of such goods shall be deemed to be prohibited. By virtue of Section 4 of the Foreign Trade (Development and Regulation) Act, 1992 the said order of 1988 continued to be in force and it is clear, therefore, that for such wilful and deliberate misdeclaration the exporter is punishable under Section 135 of the CUSTOMS ACT, 1962 as the opposite party knowingly violated provisions of clause 3(3) of the Exports Control Order and it renders that the O.P. is punishable for offence under Section 135 of the CUSTOMS ACT, 1962. The amendment in Section 135 does not create any offence but merely clarifies the offence which was already existing in the present provision of law. Moreover, the case was at the stage of investigation and at such a stage the learned Magistrate was not empowered to come to a finding that implicating the accused under Section 135(1)(c) of the Customs Act does not arise at all.;