Page 184 - ELT_1st September 2020_Vol 373_Part 5

622 EXCISE LAW TIMES [ Vol. 373

against herself is a prime article of the Constitution of India. This protec-
tion is available to the petitioner since a formal accusation relating to the
commission of an offence has been levelled which in the normal course
may result in prosecution.
A formal accusation, according to the Supreme Court in Balkishan A.
Devidaval v. State of Maharashtra reported in (1980) 4 SCC 600 can be
made :
(a) in an FIR, or
(b) a formal complaint, or
(c) any other formal document which ordinarily results in his
prosecution in court;
Or
(d) notices served on that person, which ordinarily results in his
prosecution in court;
In the present case, situation (c) above has been met, inasmuch as a
formal documentation i.e. information has been filed by the Customs
with the Police, who by virtue of Section 155(2) of the Cr.P.C. has ob-
tained magisterial permission to initiate investigation and on completion
of the entire procedure, it may lead to prosecution in Court.
Further, as held by the Supreme Court, in the case of Superintendent
of Police, CBI & Ors. v. Tapan Kumar Singh reported in (2003) 6 SCC 175,
even a GD entry can also be treated as an FIR if cognizable offence is
present. Therefore, this in itself goes to establish that if GD entry is good
enough a document to be treated as an FIR and an FIR makes a person
accused, then the route adopted in the present case i.e. filing of infor-
mation under Section 155 (i.e. through GD entry) can also make a person
an accused, regardless of the fact that the complaints/allegations made
therein are non-cognizable in nature. According to the Learned [Coun-
sel], summons can only be issued to a person with respect to an ongoing
inquiry being conducted under Customs Act. However, in the instant
case it is an admitted fact that on conclusion of their enquiry and on find-
ing that there is no iota of doubt that the petitioner had violated provi-
sion of Section 133 of the Customs Act, the Customs had approached the
Police. This is evident from the police information/complaint. Further,
this also demonstrates that no internal enquiry was pending, and the
customs 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. During the course of their arguments, respondents had once again
tried to improve their case and arguing beyond its pleadings as also the
express words used in the summons to state that they wish to enquire in-
to violation of any of Sections 127 and 122 of the Customs Act. However,
it is submitted that such an attempt to improve their case cannot be per-
mitted in accordance with law laid down by the Supreme Court and al-
luded in detail in the earlier part of this written submission. In any case,
the very foundation of such an argument is erroneous inasmuch as Sec-
tions 127 and 122 of the Act deals with “Confiscation of Goods and Con-
veyances and Imposition of Penalties”, which cannot be applied in the
present case, given that it is an admitted fact that no contraband was
found and no goods which were improperly imported were confiscated

EXCISE LAW TIMES  1st September 2020  184