Page 174 - ELT_1st September 2020_Vol 373_Part 5

612 EXCISE LAW TIMES [ Vol. 373

discloses, after investigation, the commission of a non-cognizable offence
shall be deemed to be a complaint; and the police officer by whom such
report is made shall be deemed to be the complainant. Therefore, once
the information is received by the police and permission obtained by the
Magistrate under Section 155(2) of the Cr.P.C. in case of a non-cognizable
offence, investigation is undertaken by the police. Upon completion of
investigation the report is prepared in final form which is deemed to be
the complaint and the police deemed to be the complainant. Therefore,
the report that is filed by the police in respect of the cognizable offences
under Section 173(2) of the Cr.P.C. is a police report and is treated as the
charge-sheet. However, in the instant case, if after investigation, the po-
lice authorities file a report which discloses commission of a non-
cognizable offence, i.e. Section 133 of the Customs Act, 1962, and Sec-
tions 186 and 503 of the Indian Penal Code, 1860, this report shall be
treated to be a ‘complaint’ and the police authorities a ‘complainant’.
There is hence no question of the customs authorities becoming the com-
plainant. The investigation which takes place is in respect of the offence
and not who is the offender. Under Cr.P.C., Magistrate is not required to
take cognizance in any chapter other than Chapter XV. Customs was not
precluded from approaching the magistrate under Section 200. However,
they chose not to exercise that option and instead approached the police.
According to Mr. Mukherjee, Ld. Senior Counsel, under the Cus-
toms Act, the customs cannot impose any penalty for violation of Section
133, as Section 133 of the Customs Act is the only punishable under
Chapter XVI of the Act, unlike other offences under Chapter XVI of the
Act. The argument regarding Section 117 of the Act has been added for
the first time in the affidavit-in-opposition. Section 117 provides for pen-
alty when no other penalty (fine) is provided for. Section 133 contem-
plates both imprisonment and a monetary fine. The term “fine”, “penal-
ty” and “civil penalty’ are all one and the same. “Penalty” means pun-
ishment imposed for breach of a law, rule, or contract. Further, and in
any event, there cannot be two monetary penalties for same offence.
Therefore, Section 133 by itself imposes a penalty for contravention and
Section 117 cannot be attracted for contravention of Section 133. Section
117 deals with contravention of any provision or failure to comply with
any provision. Section 133 is a penal provision which cannot be contra-
vened. Contravention can only happen when there is a “duty cast” or an
“obligation”. However, the language of Section 133 does not prescribe
any such obligation/duty nor can there be any contravention of the pro-
vision. It is applicable only where no penalty is prescribed in such provi-
sion of the Act.
Assuming without admitting that in addition to Section 133, cus-
toms can impose a penalty under Section 117, even then such a levy of
penalty could take place only when there has been an adjudication of
whether the offence under Section 133 has been committed.
Mr. Mukherjee, Ld. Senior Counsel refers to Section 108 of the Cus-
toms Act, which is as follows :
“108. Power to summon persons to give evidence and produce
documents. -

EXCISE LAW TIMES  1st September 2020  174