Page 172 - ELT_1st September 2020_Vol 373_Part 5

610 EXCISE LAW TIMES [ Vol. 373

the police officer by whom such report is made shall be deemed to be the com-
plainant. Section 2(r) of Cr.P.C. defines police report to mean a report forwarded
by a police officer to a Magistrate under sub-section (2) of Section 173 of Cr.P.C.
Section 155(2) of Cr.P.C. provides that in cases, involving non-cognisable of-
fence(s), the police authorities cannot investigate without the order of a Magis-
trate having power to try such case or commit the case for trial. Once the police
officer obtains an order of the Magistrate under Section 155(2), he is vested with
the same powers in respect of the investigation (except the power to arrest with-
out warrant) as an officer-in-charge of a police station may exercise in a cogniza-
ble case [Section 155(3)]. Upon completion of investigation the Police Officer
would file a report in the final form u/s. 173(2) of Cr.P.C. Having regard to the
explanation to Section 2(d), the said report shall be deemed to be complaint. The
Magistrate would then take cognizance of the offence u/s. 190 and the conse-
quences would follow. Since, in the facts of the case, the Ld. Magistrate has
passed an order permitting the police authorities to investigate into the offence,
the writ petitioner stands in the character of accused. Hence, the Customs com-
mitted a jurisdictional error by issuing summons u/s. 108 of the Customs Act to
the petitioner, who is a person accused of an offence.
According to the Ld. Additional Advocate General the entire exercise of
recording statement of the petitioners, who stands in the character of an accused,
would be in vain. Though a Customs Officer is vested with certain powers of
police officer, still he is not statutorily empowered to conclude the investigation
and file a report in final form u/s. 173(2) of Cr.P.C. The Customs authorities have
opted for lodging written information with the police authorities; and in view of
the order passed by the Ld. Magistrate, the police authorities are investigating
into the offence. The Customs authorities cannot, thereafter, take recourse to Sec-
tion 137 of the Customs Act, 1962 read with the provisions contained in Chapter
XV of the Cr. P.C. The combined operation of Section 4(2) and Section 26(b) of
Code is that the offence complained of should be investigated or inquired into or
tried according to the provisions of the Code where the enactment which creates
the offence indicates no special procedure. Since the police authorities are vested
with the jurisdiction to investigate in view of the order passed by the Ld. Magis-
trate, the Customs authorities are denuded of their authority to make enquiry in
connection with the offence under Section 133 of the Customs Act, 1962.
5. Mr. Sujit Ghosh, Ld. Counsel appears for the petitioner Menka Gam-
bhir in W. P. No. 7865(W) of 2019 and Mr. S.N. Mukherjee, Ld. Senior Counsel
appears for the petitioner Rujira Naroola in W. P. No. 7489 (W) of 2019.
6. Mr. S.N. Mukherjee, Ld. Senior Counsel for the petitioner, Rujira
Naroola raises two questions namely :
(a) The summons issued under Section 108 of Customs Act, 1962 was
beyond jurisdiction and contrary to the Act; and
(b) The respondent Customs had no power to conduct any inquiry
and/or investigation after filing the complaint dated 22nd March,
2019 before the police.
Customs cannot Investigate the petitioner after having filed the In-
formation/Complaint on 22nd March, 2019 and after the Police has acted
upon the same by taking approval of the Magistrate under Section 155(3)
of Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”).
The customs cannot investigate any further for the following reasons : (a)
they have formed their mind by conducting an internal enquiry and
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