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2020 (6) TMI 753 - HC - CustomsUnaccompanied baggage - main legal contention set up by the petitioners was that though sanction was obtained under Section 19 of the Prevention of Corruption Act, the prosecuting agency did not comply with the procedure under section 155 of the Customs Act - HELD THAT:- In COSTAO FERNANDES VERSUS STATE AT THE INSTANCE OF DSP., CBI, BOMBAY [1996 (2) TMI 137 - SUPREME COURT], a customs officer faced prosecution for offence under section 302 IPC for killing a smuggler by shooting with official revolver, who had attempted to flee with smuggled gold, while being intercepted by the above customs officer. The defence set up was that he was entitled for protection under section 155 of the Customs Act. Holding that Section 155 has nexus with the official duty of the petitioner and analysing the conduct of the petitioner in the background of section 106 of the Customs Act, it was held that facts disclosed that the petitioner caused the death of the smuggler while discharging his official duties. Hon'ble Supreme Court held that the petitioner was entitled for protection under section 155 and consequently the proceeding was quashed. In an identical situation, the learned Single Judge of Delhi High court in ATUL DIKSHIT VERSUS C.B.I. [2017 (1) TMI 1308 - DELHI HIGH COURT] and another judge of Rajasthan High Court in RAVINDRA KUMAR S/O SH. RAMESHWAR LAL VERSUS UNION OF INDIA [2016 (11) TMI 468 - RAJASTHAN HIGH COURT] took views contrary to the views of Calcutta High Court and Punjab and Haryana High Court discussed above. In both the above cases, respective accused challenged the prosecution alleging breach of section 155 (2) of the Customs Act - it was noticed by the learned single judge that section 40 of the Central Excise Act 1944 had undergone drastic amendment in 1973. It was noticed that though section 40 (2) of the Excise Act after amendment of 1973, was in pari materia with section 155 (2) of the Customs Act, S. 40(2), prior to amendment, it was not. However, Supreme Court proceeded as if both were in pari materia. It was held that sub section (2) of Section 40 of Central Excise and Salt Act, 1944 which existed prior to 1973 was not at all in pari materia with section 155(2) of the Customs Act, 1962. The learned Single Judge proceeded to hold that the words "no proceeding" appearing on sub section (2) of section 155 of the Customs Act do not include criminal prosecution as for the protection pertaining to prosecution, there was a specific provision under sub section (1) of section 155 of the Customs Act. Section 155 (1) uses the words "suit, prosecution or other legal proceedings". Evidently each word is expressed independently and each is used to express one in contra distinction with another. Clearly, when the above expressions are used to denote three separate category of proceedings and when statute has explicitly used "prosecution" or "other legal proceedings" separately to denote separate proceedings, it is evident that Parliament was conscious that the term " other legal proceedings" does not include a prosecution under the Criminal Law. The contention of the learned counsel for the petitioners that the prosecution of the petitioners is bad for non compliance of section 155 (2) of Customs Act is not sustainable and is rejected - Application dismissed.
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