Page 182 - ELT_1st September 2020_Vol 373_Part 5

620 EXCISE LAW TIMES [ Vol. 373

opposition it is unequivocally clear that prior to filing the po-
lice information/complaint the Commissioner of Customs
had provided his sanction to seek magisterial intervention by
approaching the police and therefore the Customs had al-
ready taken steps under Section 133 of the Act.
(c) Section 108 of the Act contemplates inquiry by the customs
by collecting evidence from the summoned, thereafter, an
opinion is formed by the customs and thereafter prosecution
is launched. In the present case, the very fact that the sanc-
tion from the Commissioner of Customs was obtained before
the Customs approached the Police, goes to show that the
very act of approaching the police was for the purpose of
launching the prosecution, since the sole purpose of obtain-
ing such approval of the Commissioner of Customs was to
meet the requirement of Section 137, which provides that no
Court can take cognizance of an offence unless previous
sanction of the Commissioner or Customs has been obtained.
(d) The offences complained of in the police infor-
mation/complaint being non-cognizable offences the police
was required to take permission of the Magistrate under Sec-
tion 155(2) of the Cr.P.C. Once the police has started its in-
vestigation and the adjudication of the offences will neces-
sarily have to be by a Magistrate, the customs has no role to
play. They must therefore, “Cease and Desist”, from carrying
any parallel investigation by virtue of Section 138 of the Cus-
toms Act.
Mr. Ghosh further submits that from a bare perusal of the summons
it is evident that the sole purpose of issuance of the summons was to en-
quire into alleged violation of Section 133 of the Customs Act and no
other provisions are quoted in the summons. The customs is now seek-
ing to make out a case under Section 117 of the Act. The argument re-
garding Section 117 of the Act has been added for the first time in the af-
fidavit-in-opposition and does not find mention in the body of the sum-
mons. Therefore, such an improvement, cannot be made in a public doc-
uments or through subsequent affidavits. In any case, Section 117 pro-
vides for penalty when no other penalty (fine) is provided for and cannot
be applied in the present case on merits. This is because, Section 133 it-
self contemplates both imprisonment or a monetary fine or both. The
term “fine’ is the same as penalty as essentially it is nothing but depriva-
tion of personal property.
Judicial meaning of the two terms i.e. Fine and Penalty are one and
the same. In fact, Black’s Law Dictionary defines the term
(a) ‘Fine’ to be a pecuniary criminal punishment or civil penalty
payable to the public treasury and
(b) ‘Penalty’ to mean a punishment imposed on a wrongdoer
usually in the form of imprisonment or fine.
Under such a situation, there can be no question of invoking Section
117 as that is a residuary provision, which applies only where penalty
has not been imposed under any other provision of the Customs Act,
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