Page 173 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 611

have come to the conclusion that the police must investigate and there is
nothing further to be investigated by them; (b) even if they had the pow-
er to investigate they have abdicated that power by approaching the po-
lice.
From a perusal of the police information/complaint and the internal
documents of the customs, the customs have made it unequivocally clear
that the only offence that the petitioner and her sister are purportedly
guilty of is under Section 133 of Customs Act (hereinafter referred to as
the Act) and for no other offence under the Customs Act, 1962. There are
admissions in these documents that : (i) all bags were checked and no
contraband was found; (ii) petitioner and her sister were “allowed to
leave” through the “green channel” (iii) clearance of the petitioner and
her sister was made “peacefully”.
After exchange of multiple incident reports, superior officers of cus-
toms were of the opinion that a police information/complaint should be
filed and the allegations should be investigated by the police. Further,
this also demonstrates that no internal enquiry was pending and the cus-
toms was unequivocal about its opinion that the petitioner was guilty of
offences under Section 133 of the Act, and Sections 186 and 503 of the
IPC. It is only thereafter that the Commissioner of Customs had sanc-
tioned filing of the information with the police which was to and would
require Magisterial intervention under Section 155(2) of the Cr.P.C. Im-
mediately upon filing the information on 22nd March, 2019, the police
authorities have on 23rd March, 2019, acted on the same by filing a GD
being GD Entry No. 800, dated 22-3-2019, and have obtained an order of
the Magistrate. In this regard nothing more remains to be done by the
Customs. The customs, while such police investigation is pending, can-
not cause the magistrate to take cognizance of the offence under Section
133 by filing a complaint under Section 200 Cr.P.C. and as such the pro-
ceeding shall be required to be stayed till such time as the investigation
is being conducted by the police. Further, it is not the case of the Cus-
toms in the affidavit-in-opposition that they comtemplate filing a com-
plaint under Section 200 Cr.P.C. in addition to the report filed before the
police. In fact at paragraph 6 of the affidavit in opposition, it is admitted
that the investigation against the petitioner and her sister is confined to
Section 133 of the Act for deciding on penalty under Section 117 of the
Customs Act, 1962. Therefore, by their acts and deeds the customs has
abdicated the power to investigate to the police. Hence, the customs can-
not file a separate complaint under Section 200 of the Cr.P.C. To bolster
this argument the petitioner relies upon Section 2(r) and Explanation to
Section 2(d) of the Cr.P.C.
Section 2(r) of Cr.P.C. defines police report as “In this Code, unless
the context otherwise requires ‘a report forwarded by a police officer to a
Magistrate under sub-section (2) of Section 173’ ”.
Section 2(d) of Cr.P.C. defines complaint as “In this Code, unless the
context otherwise requires ‘any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does
not include a police report’ ”. The explanation to Section 2(d) of the
Cr.P.C. provides that a report made by a police officer in a case which

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