TMI Blog1979 (7) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... t he had obtained a valid Customs Clearance Permit for the import of these items of machinery, the Customs Authorities prevented him from clearing the goods from the Railway Station. Ultimately, the complainant was able to clear the goods by obtaining the necessary permission from the Government. He was allowed to retain the imported goods with him till the first of June, 1962. The goods were to be re-exported from India, thereafter. The respondent applied for extension of the period, but his request was declined. On June 16, 1962, the accused (appellants) raided the premises of the complainant at 30, Pusa Road, New Delhi, and seized some of those imported goods which were meant for display in the International Industries Fair. The appellants also seized certain other goods kept by the complainant at the site of the Fair, itself. Inventories of the goods were prepared by the appellants at the time of their seizure. The goods were then packed in boxes and sealed by the appellants with their own seals which were signed by the complainant as well as the appellants. One copy of the inventories, duly signed by the appellants and the complainant, also was handed over to him. On Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods of Consignment No. 1 of M/s. Gebr. Ruhstrat, concerning the complaint filed by the Assistant Collector of Customs under Section 5 of the Import Export (Control) Act, and Section 117(81) of the Sea Customs Act, which were also seized by appellant No. 1, who had obtained their delivery from the Railway Station, were not produced before Shri H. L. Sikka, Magistrate, along with the other goods when the inventories were prepared. This gives a bona fide apprehension to the complainant that the said goods have been criminally misappropriated by the accused. The accused by their act in illegally tampering and breaking the seals of the consignment seized by them and removing some of these goods and further abusing their positions and seizing some of the personal articles of the complainant under the colour of search warrant issued by the S.D.M. Karol Bagh and illegally holding those goods of the complainant uptil...have committed offences under Sections 120B/166/409 IPC. The Sub-Divisional Magistrate before whom the complaint had been filed, examined the complainant under Section 200 and further held a preliminary enquiry under Section 202, Cr.P.C., in the course of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken, while the remaining three packages were completely empty but sealed . It is maintained that the inventory itself, prepared by Shri Sikka, falsifies this allegation. It is further pointed out that in the complaint it is not alleged with particularity as to what goods disappeared or were removed, nor that the disappearance of some of the goods, if any, occurred after their seizure and before their deposit in the Customs House by the appellants, and that the allegation made by the complainant during arguments before the High Court, to the effect, that the goods in question were misappropriated sometime after seizure and before their deposit in the Customs House, was not based on any facts or circumstances appearing in the statements of the complainant and Shri Sikka recorded during the preliminary enquiry. Learned counsel also repeatedly urged that the allegations regarding the commission of the offence of criminal breach of trust by the appellants, were false and groundless. For this purpose, it is stressed, the Court should not confine itself to the allegations in the complaint but also consider all the evidential material on the record including that brought on the record by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 409, I.P.C. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged. For these reasons, we overrule the first contention canvassed on behalf of the appellants. The second contention advanced by Mr. Mukherjee is in the alternative. It is submitted that even if for the sake of argument, it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also, the seizure and the removal being integrally connected with each other the alleged act constituting the offence of criminal misappropriation/criminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty-done or purporting to be done in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram v. Emperor, (1) is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.H.B. Gill v. The King.(2) tersely reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office. Speaking for the Constitution Bench of this Court, Chandrasekhar. Aiyer J., restated the same principle, thus: .....in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty...there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty . (Emphasis supplied) Let us now apply this bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shreekantiah Rammayya (supra) was a case of that kind. The act complained of against the second accused in that case was, dishonest disposal of the goods. The peculiarity of the act was that from its very nature, in the circumstances of that case, it could not have been done lawfully or otherwise by the accused save by an act done or purporting to be done in an official capacity. In other words, the very charge, was the dishonest doing of an official act by the accused. Whether the act was dishonest or lawful, it remained an official act because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. It was in view of these special facts of the case, it was held that the offence under Section 409, Indian Penal Code was committed or purported to be committed by the accused in the discharge of his official duty, and, as such, sanction under Section 197(1) Cr. P.C. was a prerequisite for his prosecution. The facts of the case before us are entirely different. The ratio of Shreekantiah Rammayya has therefore, no application to the facts of the case before us. In Amrik Singh v. The State of Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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