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2016 (2) TMI 578 - PUNJAB & HARYANA HIGH COURT

2016 (2) TMI 578 - PUNJAB & HARYANA HIGH COURT - 2016 (335) E.L.T. 399 (P & H) - Prosecution proceedings against the customs officers - sanction under the Prevention of Corruption Act Claim of duty drawback on the basis of forged Import Code (IEC) number, forged identity proof to open bank accounts and forged 213 shipping bills - Accused customs officers had dishonestly and fraudulently transferred passwords and login ID to the private persons illegally engaged by them to work in the office in o .....

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e Court or where interference is absolutely necessary for securing the ends of justice. However, in my opinion, the issue will turn on the fact that this Court has come to the conclusion that in the absence of notice the prosecution is illegal. Once that is held, it would not be in the interest of justice to subject the petitioners to a trial which will ultimately be still-born. For this purpose recourse can be taken to the provisions of Section 482 Cr.P.C., more so since the said section has be .....

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gh, Adv.e, Mr. Raju Arora, Adv.e, Mr. Jagmohan Bansal, Adv.e & Mr. Deepak Gupta, Adv.e, Mr. J.S. Gill, Adv.e, Mr. Angel Sharma, Adv.e and Mr. Deepak Bhardwaj, Adv For the Respondent : Mr. Sumeet Goel, Standing Counsel JUDGMENT Ajay Tewari, J (Oral) The above Criminal Revisions have been filed for setting aside the orders whereby applications moved under Section 155(2) of the Customs Act, 1962 and the application under Section 227 Cr.P.C. filed by the petitioners have been dismissed and charg .....

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the Information and Technology Act, 2000. As per the prosecution, during the year 2008-09, at Ludhiana, accused Parminder Kumar and Amandeep Singh by entering into a criminal conspiracy with accused KK Sharma and other customs officers, floated non-existent firms namely M/s SM International, M/s Aastha Trading and M/s A.S. International on the basis of forged and fictitious documents viz. forged Import Code (IEC) number, forged identity proof to open bank accounts and forged 213 shipping bills .....

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nd their stuffing into the containers for extraneous reasons, committed criminal misconduct as public servants. The FIR No.19 dated 10.06.2009 has been lodged. The accused namely Jagdeep Singh, who is petitioner No.3 herein was working as Inspector and other accused persons/petitioners herein were working in their respective posts as Inspectors, whereas Maninder Pal Singh-petitioner No.6 was working as Examiner, Customs and they remained posted at ICD CONCOR/KCM CFS, Ludhiana for certain period. .....

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l for the petitioners have argued that under Section 155(2) of the Customs Act there is a mandatory requirement of issuance of prior notice and, that having not been done the present action has to be quashed. Section 155 of the Customs Act is as under:- "SECTION 155.Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intende .....

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." Learned Standing Counsel for the respondent No.1-CBI has argued that in the present case the petitioners have been charged with serious offences under the Prevention of Corruption Act and sanction was duly taken before proceeding against them and in these circumstances the insistence of compliance of the provision of Section 155(2) of the Customs Act can not be accepted. As per him, the actions of the petitioners were completely outside the purview of their official duties and the protec .....

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by limitation. He says that for such applications, the limitation is provided under Section 155(2) of the Customs Act, 1962. I have perused this provision, which is in the following terms: "155(1)........ (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in wri .....

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arned Additional Sessions Judge. The allegations in the complaint are on the basis of the occurrence which took place on October 21, 1969. Since it is a legal objection and the learned Magistrate had no jurisdiction to take cognizance of this complaint, after the expiry of three months, this plea of the petitioners must succeed. Accordingly, the petition is allowed and the proceedings pending against the petitioners are quashed." To support their arguments, they have further relied upon the .....

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s. R. Raju and another, etc., reported as (1972) 2 Supreme Court Cases 410 and urged that in the cited case the issue in question arose from a similar provision under the Central Excise and Salt Act, 1944 and the Hon'ble Supreme Court quashed the proceedings. The relevant paragraphs of the said judgment are as under:- "2. The question which falls for consideration in these appeals is the interpretation of section 40(2) of the Central Excises and Salt Act, 1944 hereinafter referred to fo .....

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and (d) of the Act and also under section. 420 read with section 511 of the Indian Penal Code and section 109 of the Indian Penal Code. The High Court found that the prosecution in both the cases was barred by the rule of limitation in section 40 of the Act. The acts complained of in Criminal Appeal No. 194 of 1969 occurred on 25 July, 1964 and the complaint was filed on 18 May, 1965. In Criminal Appeal No. 195 of 1969 the acts complained of occurred on 20 June, 1964 and the complaint was filed .....

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f the respondents was no within the mischief of the section. 5. The respondents' contention on the other hand is that the section applies to prosecution of the respondents for violation of the provisions of the Rules and the Act. It is further said on behalf of the respondents that they were rightly acquitted by the High Court because the prosecution were instituted subsequent to the expiry of six months from the date of the alleged offences. 10. Counsel on behalf of the appellant contended .....

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passed in good faith or any act in good faith done or ordered to be done under the Act. The second sub-section speaks of limitation of suits, prosecution or other legal proceeding for anything done or ordered to be done under the Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of. The two subsections operate indifferent fields. The first subsection contemplates bar of suits against the Central Government or against t .....

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n the section would not mean anything done in violation of the provisions of the Act. It was also said that "anything done" would not include a malicious act or an act done in bad faith. Sub- section (2) of section 40 does not introduce the test of good faith in relation to act done. Good faith is one of the aspects in section 40(1). The present appeals do not turn on sub-section (1) of section 40. 22. The word 'Act' is defined in the General Clauses Act, 1897. The definition i .....

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of the respondents and dismissed the appeal of the Public Prosecutor. Learned counsel for the respondent No.1-CBI has relied upon the judgment of the Hon'ble Supreme Court in the matter of P.P. Unnikrishnan vs. Puttiyottil Alikutty, reported as 2000(4) R.C.R. (Criminal) 25, wherein their Lordships held that beating of a person within police custody would not fall within official duties of the police officer and hence such officer would not get the benefit of Section 64(3) of the Kerala Polic .....

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se (supra) and that being a decision of Larger Bench cannot be ignored. As regards the argument that sanction under the Prevention of Corruption Act was obtained, the learned Senior Counsel as well as other learned counsel for the petitioners have argued that the issue of sanction under the Prevention of Corruption Act and issue of notice under the Customs Act are two independent protections and therefore the mere fact that sanction was obtained under the Prevention of Corruption Act would not o .....

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case (supra). Consequently, it has to be held that the prosecution in violation of Section 155(2) of the Customs Act is not valid. Learned counsel for the respondent-CBI has also raised the argument that the petition under Section 482 Cr.P.C. is not maintainable at this stage. To support his argument he has relied upon the Single Bench judgments of Delhi High Court and of this Court in the matter of Dharambir Khattar and others vs. CBI, 2010(6) RCR (Criminal) 1733 and Kuldipak Ahuja vs. CBI, 20 .....

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