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2016 (6) TMI 625 - CALCUTTA HIGH COURT

2016 (6) TMI 625 - CALCUTTA HIGH COURT - 2016 (338) E.L.T. 255 (Cal.) - Criminal proceedings against the Examining Officer, Customs House, Calcutta - period of limitation - Proceedings under Section 120B read with Sections 420/511/468/471 of the Indian Penal Code and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 - Held that:- , the criminal prosecution against the present petitioner will be barred after expiry of three months from the date of accrual o .....

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s of the court. - Said criminal proceeding against the petitioner quashed. - CRR No. 4062 of 2009 - Dated:- 19-5-2016 - Ranjit Kumar Bag, J. For the Petitioner : Mr. Sekhar Kumar Basu, Mr. Abhisek Sinha For the Respondent : C. B. I. : Mr. Asraf Ali, Mr.Sankar Banerjee ORDER R. K. Bag, J. The petitioner has prayed for quashing of the criminal proceedings of Special Case No.1 of 2004 arising out of Crime No.RC-7/E/96- Calcutta dated August 1, 1996 under Section 120B read with Sections 420/511/ .....

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a dated August 1, 1996 on the basis of reliable information which is as follows: One Pramod Kumar Kishorepuria promoted M/s Annapurna Yarn Fabrics and M/s Blumenfeld Ltd. for indulging in evasion of customs duty by making false import/export documents supported with false certification issued by the officials of Customs, Calcutta and Silk Board, Bhagalpur by adopting dubious methods. On February 17, 1995 Pramod Kumar Kishorepuria obtained quantity based advance licence No.P/K/02283861/C dated Fe .....

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1995 for import of Mulberry Raw Silk for ₹ 82,36,176/- in favour of M/s Blumenfeld Ltd. 3. On April 18, 1995 Pramod Kumar Kishorepuria and other associates of M/s Blumenfeld Ltd. applied for a quantum based advance licence under licence file No.2/79/040/00013/AM/96 dated April 18, 1995 for duty free import of 52,440 kgs. of 100% Mulberry Raw Silk other than dupion yarn for CIF value of ₹ 3,71,14,351/- with proposed export obligation of 43,700 kgs. of 100% Mulberry Raw Silk madeups o .....

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, Central Silk Board stuffed cotton blankets and old silk clothes made into scarves for exporting in the containers which were taken from M/s Shaw Wallace & Co., Kolkata on April 28, 1995 and April 29, 1995, although the above named officials had given authenticity of the contents of the containers on April 27, 1995. The Shipping Bills filed by Pramod Kumar Kishorepuria indicates that the same were prepared ahead of actual packing and certification in collusion with the above officials. 4. O .....

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sarees and cloth materials of polythene were found whose valuation will be not more than ₹ 5,00,000/- in place of declared and certified articles in the containers as made-up of 100% pure Silk valued at ₹ 8,00,00,000/- which was duly certified by the Customs Officer of Calcutta and Inspector of Silk Board, Bhagalpur. The present petitioner along with the other officials of Calcutta customs were involved in giving false certificate that the cargo was containing Mulberry Raw Silk scar .....

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Shri Pramod Kumar Kishorepuria being the proprietor of M/s Annapurna Yarn Fabrics and Director of M/s Blumenfeld Ltd. hatched deep rooted conspiracy with the officials of Calcutta Customs including the present petitioner and the officials of Silk Board, Bhagalpur for making bogus export by making false declaration and preparing false documents and thereby cheated Government of India by evading custom duty to the tune of ₹ 29,63,889/-. 5. On May 4, 1995 Shri Kishorepuria in connivance with .....

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8/471/120B of the Indian Penal Code against Shri Pramod Kumar Kishorepuria and others including the present petitioner. 6. The CBI investigated the said criminal case and ultimately submitted chargesheet against Shri Pramod Kumar Kishorepuria and officials of Calcutta Customs including the present petitioner on January 27, 2004 before the Special Court (CBI) at Alipore being forwarded by the Superintendent of Police, CBI, EOW, Kolkata. The Court took cognizance of the offence and issued process .....

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r quashing of the criminal proceeding. 7. Mr. Abhisek Sinha, Learned Counsel for the petitioner contends that the chargesheet submitted by the Inspector of Police was not forwarded by the Superintendent of Police as Officer-in-charge of the police station under Section 173(2) of the Code of Criminal Procedure. He further submits that the sanctioning authority has granted sanction for prosecution of the petitioner under Section 19 of the Prevention of Corruption Act without considering the docume .....

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in Public Prosecutor, Madras V. R. Raju reported in (1972) 2 SCC 410 by which the Supreme Court quashed the criminal proceeding for violation of the provisions of Section 40(2) of the Central Excise Act, 1944, which is in pari materia with Section 155(2) of the Customs Act, 1962. Mr. Sinha has also cited unreported decision of Punjab & Haryana High Court in Sunil Kumar V. Central Bureau of Investigation (CRR No.250 of 2015 with CRR No.677 of 2015 with CRR No.649 of 2015 with CRR No.1228 of 2 .....

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Investigation contends that the Inspector of Police who investigated the case under Delhi Special Police Establishment, has submitted chargesheet, which was forwarded by the Superintendent of Police as Officer-incharge of the police station under Section 173(2) of the Code of Criminal Procedure. He further submits that the sanctioning authority has considered the entire allegation reflected in the statement of witnesses and the documents collected by the Investigating agency and formed opinion .....

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Court in Sunil Kumar V. Central Bureau of Investigation (CRR No.250 of 2015 decided on February 11, 2016) and as such the said decision of the Punjab and Haryana High Court will be considered as per incuriam without having binding precedent. 9. It appears from the chargesheet that one C. R. Dash, Inspector of Police, Central Bureau of Investigation has submitted chargesheet against the petitioner and other co-accused persons for committing the offence punishable under Section 120B read with Sect .....

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the said chargesheet is duly forwarded by one Amit Garg, Superintendent of Police, CBI as per provision of Section 173(2) of the Code of Criminal Procedure. The petitioner was working as Examining Officer of Customs, Calcutta at the time of commission of the offence under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and as such sanction is required under Section 19 of the Prevention of Corruption Act for prosecution of the petitioner. It is contended on be .....

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h Section 13(1) (d) of the Prevention of Corruption Act. Learned Single Judge made a scrutiny of the entire office note where officials of different ranks gave their views and the opinion for issuing work order was the opinion of a committee consisting of the petitioner and other officials and as such Learned Single Judge was of the view that no offence was made out against the petitioner. However, in this report Learned Single Judge also observed that the order of granting sanction for prosecut .....

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uments collected during investigation. It appears from the said sanction order that the sanctioning authority found that the present petitioner and one Bansidhar Biswal did not go to the godown of M/s Annapurna Yarn Fabrics and M/s Blumenfeld Ltd. on April 27, 1995 for inspection of five containers, but issued certificates that the said containers contain Silk Fabrics worth ₹ 7,95,77,408/-, whereas on re-checking of those containers it was detected that those containers contained jute bag .....

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e contention made on behalf of the petitioner that the Commissioner of Customs, Calcutta being the sanctioning authority under Section 19 of the Prevention of Corruption Act granted sanction order mechanically without application of mind. The ratio of Ganesh Dutt Sharma V. Central Bureau of Investigation cannot have any application in the facts of the present case. 10. It appears from the FIR registered under Crime No.RC-7/E/96- Calcutta dated August 1, 1996 that on May 2, 1995 the officials of .....

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d against the petitioner after lapse of almost 14 months from accrual of cause of action. The question which calls for determination of the court is whether the prosecution against the petitioner is barred under Section 155(2) of the Customs Act, 1962. It is relevant to quote the provision of Section 155 of the Customs Act, 1962, which is as follows: 155. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any .....

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se thereof, or after the expiration of three months from the accrual of such cause. 11. In Public Prosecutor V. R. Raju reported in (1972) 2 SCC 410 the Supreme Court considered the provision of Section 40(2) of the Central Excise and Salt Act, 1944 and came to the conclusion that the prosecution was barred by the said provision of Section 40(2) of the said Act. In this report the respondents were prosecuted for violation of Rules 9, 53, 64, 67, 68, 70, 71, 66 and 226 of the Central Excise Rules .....

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t or order complained of. In the report the cause of action arose in the month of July, 1964 and the prosecution was initiated in the month of May, 1965 i.e. after expiry of six months from the accrual of cause of action. The supreme Court affirmed the order of the High Court which concluded that the prosecution was barred by the provisions of Section 40(2) of the Central Excise and Salt Act, 1944. By taking analogy from the definition of the word Act in the General Clauses Act, 1897 the Supreme .....

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and the amended provision of Section 40 of the said Act is as follows: 40. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder. (2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of .....

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ia with the provision of Section 155 of the Customs Act, 1962. In Sunil Kumar V. Central Bureau of Investigation (unreported decision in CRR 250 of 2015 decided on February 11, 2016) Learned Single Judge of Punjab and Haryana High Court quashed the criminal proceeding against some customs officers for noncompliance of the provision of Section 155(2) of the Customs Act, 1962. Learned Single Judge of Punjab and Haryana High Court relied on the decision of the Supreme Court in Public Prosecutor V. .....

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roceeding in Section 40(2) of the Central Excise and Salt Act, 1944 before its amendment in 1973 does not include the adjudication and penalty proceeding under the said Act and as such the penalty proceeding initiated under the Central Excise and Salt Act, 1944 cannot be barred by limitation prescribed in Section 40(2) of the said Act. This report does not lay down the proposition that the criminal prosecution initiated against the officers of the Central Government will not be barred by limitat .....

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specific shipping bills were detained in the vessel M. V. Slavnoe and cotton blanket and cloth materials of polythene were found in those containers in place of 100% Mulberry Raw Silk scarves which were supposed to be exported by Pramod Kumar Kishorepuria. The role played by the present petitioner is that he omitted to make inspection of the containers at the time of loading of the same and thereby he aided and assisted Pramod Kumar Kishorepuria for making bogus export by making false declaratio .....

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a and imposed penalty of ₹ 1,50,000/- and ₹ 2,35,000/- on Pramod Kumar Kishorepuria as proprietor of M/s Annapurna Yarn Fabrics and ₹ 9,94,000/- on Pramod Kumar Kishorepuria as Director and authorised signatory of M/s Blumenfeld Ltd. On October 16, 2003 the Commissioner of Customs (Port), Customs House, Calcutta had intimated the Superintendent of Police, Central Bureau of Investigation, Economic Offences Wing, Kolkata vide no.S-45-32/95/SIB Part-III dated October 16, 2003 that .....

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he principal accused has paid the penalty imposed on him under Section 114 of the Customs Act, 1962. 14. The petitioner as an Examining Officer of the Customs omitted to perform duty in order to assist the principal accused Pramod Kumar Kishorepuria in his attempt to export goods improperly from India. The provision of Section 155(2) of the Customs Act, 1962 which is in pari materia with the provision of Section 40(2) of the Central Excise Act, 1944 lays down that an officer of the Government ca .....

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of the said Act. The action or omission on the part of the present petitioner as Examining Officer of the Customs for assisting the principal accused Pramod Kumar Kishorepuria for which penalty was imposed on him and paid by him under Section 114 of the Customs Act, 1962 will come within the ambit of anything purporting to be done in pursuance of this Act appearing in Section 155(2) of the Customs Act, 1962. As a result, the criminal prosecution against the present petitioner will be barred aft .....

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