Page 181 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 619

opinion (by conducting an internal enquiry) and having come to a con-
clusion that there is “no iota of doubt” that the petitioner has violated the
provisions of Section 133, they have approached the police by filing a
written information. Once that process has been commenced and ap-
proval of the Magistrate obtained, then by virtue of Section 138 of the
Customs Act, the Customs Authorities must now cease and desist from
making a parallel enquiry. From a perusal of the police infor-
mation/complaint and the internal documents of the customs, the com-
plainant Customs Officer have made it unequivocally clear that the of-
fence that the petitioner and her sister are purportedly guilty of is under
Section 133 of the Act and nothing else. 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 “peace-
fully”. After exchange of multiple incident reports superior officers of
customs were of the opinion that a police information/complaint should
be filed and the allegations should be investigated by the police. This is
evident from the police information/complaint. Further, the complaint
also demonstrates that no internal enquiry was pending, and the cus-
toms was unequivocal about its opinion that the petitioners were guilty
of offences under Section 133 of the Act, and Sections 186 and 503 of the
IPC. This is in complete contradiction to the argument of the customs,
while making submissions, that the investigation is incomplete. The
complaint filed by the Customs Department is only after the Commis-
sioner of Customs had sanctioned Magisterial intervention. Section 137
of the Act states that no Court can take cognizance of an offence under
Section 133 of the Act without the previous sanction of either the Princi-
pal Commissioner of Customs or Commissioner of Customs. From the
conduct of the customs and the documents annexed to their affidavit in
opposition it is unequivocally clear that prior to filing the police infor-
mation/complaint the Commissioner of Customs had provided his sanc-
tion to seek magisterial intervention by approaching the police and
therefore the Customs had already taken steps under Section 133 of the
Act. No doubt, the information filed before the Police by the Customs
was not a complaint as understood under Section 200 of the Cr.P.C.
However, that per se does not mean, that unless a complaint under Sec-
tion 200 of the Cr.P.C., Magisterial intervention cannot be sought. In fact
for non-cognizable offences Section 155(2) of Cr.P.C. contemplates Mag-
isterial intervention, setting the investigation process into motion. There
is no further requirement of a further complaint under Section 200 of the
Cr.P.C. To put it differently, by filing an information/complaint with the
police, the Customs they have already exercised the option of magisterial
intervention, for the following reasons :
(a) Section 138 of the Act states that an offence under Section 133
must be adjudicated by the Magistrate.
(b) Section 137 of the Act states that no Court can take cogni-
zance of an offence under Section 133 of the Act without the
previous sanction of either the Principal Commissioner of
Customs or Commissioner of Customs. From the conduct of
the customs and the documents annexed to their affidavit in

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