High Court · 2024

applicant is a bogus complaint and the trial Court without applying its judicial mind to the facts and circumstances and evidence available on record as well, passed the summoning order dated

24.8.2024 against the applicant in a cursory manner, which is not sustainable under law. It is further submitted that the complainant claims that the present applicant along with the main accused Vikas Rastogi was arrested by opposite party no.2 in a train coach and allegedly recovered foreign gold weighing 1211.220 grams valuing Rs.6298344.00 from their possession. It is further submitted that there is no independent witness of the alleged recovery. It is further submitted that the so called confession made by co-accused Vikas Rastogi in respect of smuggling of foreign origin gold from Bangladesh and further his statement that he was intending to sell the said gold to small traders and artisans at Mirzapur like Ritesh Soni, Raju Soni and Pradeep Soni are false and on the basis of the statement of co-accused Vikas Rastogi the name of the present applicant was roped in this matter. It is further submitted that the call detail report was obtained by the complainant to connect the present applicant with the main accused Vikas Rastogi, which is not a legal piece of evidence. It is further submitted that the present applicant is a small trader of gold and main accused Vikas Rastogi is also deployed in the same business and only on the basis of having some mobile chat with the main accused Vikas Rastogi no offence could be made out against the present accused applicant. It is further submitted that the applicant has no criminal history to his credit. It is further submitted that the complaint has already been filed and there is no likelihood to him to fleeing away from the process of the Court.

4. Per contra, the learned counsel for the Union of India has vehemently opposed the prayer. It has been submitted that the ground taken in this application are frivolous and baseless. The present applicant runs a jewellery shop namely Ritesh Silver Point at Mirzapur and he uses to purchase gold bullion from co-accused Vikas Rastogi and uses to sell the same to the customers. They trade in cash only and does not maintain any record relating to it. He has also got registration in GST in January, 2023. It is further submitted that the voluntary statement given by co-accused Vikas Rastogi before the DRI officers under Section 108 Customs Act is sufficient to show the involvement of the present applicant in commission of the crime as alleged in the criminal complaint. It is further submitted that on the basis of cogent evidence the complaint was filed before the competent Court. It is further submitted that the co-accused Vikas Rastogi was held while traveling with fake voter id in the name of some Rahul and tried to evade his real identity. He has been in constant touch with the present applicant in connection with the smuggling of illegal gold and the same situation was traced out just one day before his interception. Co-accused Vikas Rastogi also disclosed in his statement dated 22.10.2022 that on reaching Mirzapur he would have sold the smuggled gold to Ritesh Soni and others. It is further submitted that the applicant in his statement dated 9.2.2023 admitted that he would have bought about 300 grams of smuggled gold from the co-accused Vikas Rastogi and hence there was ample evidence against the present applicant to find him involved in illicit trade of foreign gold. It is further submitted that the trial Court after analyzing the entire evidence and other materials available on record proceeded to take cognizance upon the criminal complaint filed against the present applicant along with the co-accused Vikas Rastogi and accordingly, they were summoned by the Court.

5. Having heard the learned counsel for the applicant and learned AGA and have gone through the materials available on record carefully and I do not find any substance in the arguments advanced by learned Counsel for the applicant.

6. In the instant application prayer has been made to quash the summoning order dated 24.8.2023 passed by the Special Chief Judicial Magistrate, Varanasi under Section 135 Custom Act and further the stay order of summoning dated 24.8.2023 has also been prayed for.

7. A perusal of the record reveals that the statement made by co- accused Vikas Rastogi under Section 108 of the Customs Act, 1962 was not the only ground on the basis whereof the summoning order was passed against the present applicant. He in his statement recorded under Section 108 of the Customs Act, 1962 before the customs officials has admitted that he has been indulged in the crime of sale, purchase and carrying illegal smuggled gold for long and further he stated that he was on way to Mirzapur with the smuggled foreign gold where he would have sold the same to Ritesh Soni, Raj Soni and Pradip Soni. He further states that he along with Ritesh Soni used to deal with the illicit trade of foreign gold and both had been in continuous touch in this respect and it was also found by the custom officers that both the accused persons used to make regular call to each other even in odd hours and that too for long duration.

8. Not only the co-accused Vikas Rastogi but also the present applicant Ritesh Kumar Soni states in his statement under Section 108 of the Customs Act, 1962 made before the customs officials that he is known to Vikas Rastogi for the last two years, who owes a shop namely M/S Maa Bhagwati Jewelers and he is also engaged in the gole business having his own shop named as Ritesh Silver Point and he uses to purchase gold bullion from said Vikas Rastogi and sells it to the customers and since they trade in cash only so no record thereof is maintained by them.

9. Section 108 of the Customs Act, 1962 provides mandatory provisions relating to the power to summon any person to give evidence and to produce documents of any gazetted officer of customs and the relevant provisions enumerated under Section 108 of Customs Act are reiterated as below:

108. Power to summon persons to give evidence and produce documents.- [(1) Any gazetted officer of customs, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.] (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).

10. The legal and evidentiary value of Section 108 of the Customs Act has been recognized in a catena of decisions viz. Union of India Vs. Padam Narain Aggarwal, AIR 2009 SC 254, K.I. Pavunny Vs. Assistant Collector (H.Q) Central Excise Collectorate, (1997) 3 SCC 721 and Naresh J. Sukhawani Vs. Union of India AIR 1996 SC 522.

11. A cumulative reading of the aforesaid decisions reveals that the statements recorded under Section 108 Customs Act are the statements of a distinguish class and there stand on a different footing in companion of the applicants recorded under section 161 of CrPC and moreover, such statements are always admissible in evidence. It is also settled that a statement recorded under Section 108 of The Customs Act is a material piece of evidence collected by custom officers under The Customs Act.

12. More significantly, in Naresh J. Sukhawani Vs. Union of India JT 1995 (8) SC 160, it has been expressly held that while illegally exporting foreign currency a statement made by the co- accused can be used as evidence against the others and this theory is applicable to a case under The Customs Act,1962.

13. On the basis of the aforesaid legal position, it emerges out that the statement made by both the accused persons Vikas Rastogi and Ritesh Kumar Soni are binding upon each other. They were bound to state the truth by virtue of Section 108 (3) of the Customs Act and further the said statements are in true sense confessions made by both the accused persons and they cannot escape their liability in the light of the aforesaid statements rendered by them to the customs officials.

14. A perusal of the record reveals that there was sufficient prima facie evidence against the present accused/ applicant. The summoning order passed by the learned trial Court is a legal order. Since it is trite law that the summoning order passed by a Magistrate Court cannot be reviewed by him the only remedy available to the aggrieved accused is the extraordinary remedy under Section 482 Cr.P.C. and not by way of application of recall to summons as held in Subramanium Sethuraman Vs. State of Maharashtra and Ors (2004) 13 SCC 324 and Adalat Prasad Vs. Rooplal Jindal and Ors (2004) 7 SCC 338.

16. Since the instant case initiates on the basis of a private criminal complaint, the Magistrate has to record his satisfaction about the prima facie case after applying his judicial mind to the facts and evidence of the case and the law applicable thereto and the specific allegations made in the complaint supported by satisfactory evidence and other materials on record is the primary and relevant element on the basis of which the Magistrate has to record his satisfaction while summoning an accused in a criminal trial.

17. The summoning order dated 24.8.2023 passed by Special Chief Judicial Magistrate, Varanasi is a valid and legal order. The Magistrate has perused the complaint as well as panchnama, valuer report, statements made by the accused persons, the factum of recovery of foreign gold from the possession of co-accused Vikas Rastogi and other materials on record the role of the present accused in the commission of the crime as an active member of criminal and on being prima facie satisfied with that cognizance has been taken by the learned Magistrate and the present applicant along with co-accused Vikas Rastogi was summoned to face trial.

18. The learned Magistrate has also recorded his satisfaction regarding involvement of the present accused applicant in the case in hand.

19. On the basis of the aforesaid, I find no force in the present application moved by the accused applicant and accordingly impugned summoning order dated 24.8.2023 and cognizance order passed by the learned Special Chief Judicial Magistrate, Varanasi is hereby confirmed and this application is rejected. Order Date :- 4.12.2024 Fhd