TMI Blog2018 (1) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of mandate mentioned in sub-section (2) does not arise. This court holds that the contentions raised by the petitioner both on facts as well as law is devoid of merit and hence, this Criminal Original Petition is dismissed. - Criminal Original Petition No. 2388 of 2018 - - - Dated:- 30-1-2018 - The Honourable Dr.Justice G.Jayachandran For the Petitioner : Mr. S.Senthil Nathan For the Respondent : Mr. K.Srinivasan, Special Public Prosecutor (CBI) ORDER The petitioner herein, who is arrayed as accused number 24 in C.C.No.10 of 2010 on the file of II Additional Sessions Judge/Special Judge for CBI cases has preferred the petition to quash the case since no material to constitute any offence is made out for proceeding with prosecution. 2. Based on source information, CBI has registered the complaint in RC MA 1 2007 (A) 0034 and 0035, which has culminated in filing final report on completion of investigation alleging the petitioner serving as Superintendent in the Customs Department and 25 others during 2001 to 2006 entered into a criminal conspiracy in the matter of availing fraudulent duty drawback incentives, by exporting low priced goods but over in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in AIR 1972 SC 2504 cited. 7. The Learned Special Public Prosecutor would submit that, the present petitioner who is one among the 26 accused in the cases registered and taken on file as C.C.No.10 of 2010 along with other accused earlier filed a petitions to discharge and quash. Same was dismissed as devoid of merits. By couching his plea differently, the same relief is sought with intention to drag on the proceedings endlessly. The learned Special Public Prosecutor by circulating the orders passed by this court in the revision petitions filed by the co-accused for discharge, contented that the records collected during the investigation and relied by the prosecution reveals the criminal conduct of the petitioner who as Superintendent of Customs while serving at Coimbatore entered into conspiracy with the exporter and others, he has obtained illegal gratification to issue 'let export' order, thereby facilitated the exporters to get duty draw back and caused wrongful loss to the Government. 8. In support of his contention, the Learned Special Public Prosecutor point out the portion of the final report which alleges that, during 2002 to 2004, Shri.Appusamy and Shri Patra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is that he should bring back the sale proceeds of the goods exported in foreign exchange into India through his firm's bank account within 6 months. 13. As per the final report, fictitious firms in the name of M/s Petal Exports by C.Appusamy (A-6), M/s. Aar Kay Impex through Mr. R.Krishnamoorthy (approver), M/s R.R.Exports through Selvaraj (approver) M/s. Gee Gee Garments in the fictitious name Raghunathan through Viswanathan, M/s Dee Bee Garments through N.Karthikeyan (approver) M/s Emm Emm Exports through Chandrasekar (approver) M/s. Gowri Exports M/s Sakthi Exports through Balasubramaniam (approver), M/s. Swathi Exports through P.Sathasivam (approver) and M/s Nandini Exports through Shanmugavelu (approver) were floated in Tirupur with false addresses. Current Accounts in Centurion Bank, Dhanalaksmi Bank and Indus Ind Bank were opened, PAN card and Import Export Code was obtained fraudulently. 14. By inflating the invoice value duty drawback were drawn by these exporters by bribing the customs officials. The petitioner who is arrayed as A-24 in this case was the Superintendent of Customs Department at Air Cargo Complex, Coimbatore and he had privy to the crime. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained. The two subsections operate indifferent fields. The first subsection contemplates bar of suits against the Central Government or against the officers by protecting them in respect of orders passed in good faith or acts done in good faith. It is manifest that the second subsection does not have any words of restriction or limitation of class of persons unlike sub-section (1). Sub-section (2) does not have any words of qualification as to persons. Therefore, subsection(2) is applicable to any individual or person. 17. If one accept the fallacious interpretation given in this judgment and venture to bisect sub-sections (1) and (2 ) of Section 155 of the Customs Act and read sub-section (2) disjointly and independent of subsection (1) without its aid, then on the expiry of three months from the date of cause of action, it will be providing immunity from all proceedings except civil proceedings to a person who purport to act under the Customs Act. This interpretation is perse ignorable since it will have over riding effect on all other acts such as Indian Penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruption Act are acts done in good faith or anything done in pursuance of Customs Act. When Cheating and obtaining illegal gratification are sui juris offences punishable under two different legislations of the parliament, sub-section (2) of section 155 of the Customs Act cannot be read in isolation and make other legislations otiose by mis-interpretation and misapplication of statute. 21. In addition, it is also appropriate to refer the judgment of the High Court of Rajasthan rendered in Ravinder kumar -vs- Union of India, when a similar plea was taken, the Hon'ble High Court has observed that; The judgment of the Hon'ble Apex Court in Public Prosecutor, Madras Vs. R.Raju Anr. (supra) was dealing with the unamended provisions, which existed prior to 1973. There has been a drastic change in the provision, as quoted above. Sub-section (2) of Section 40 of the Central Excise Act, 1944, as amended after 1973, is some what similar to Section 155(2) of the Customs Act, 1962. But sub-section (2) of Section 40 of the Central Excises and Salt Act, 1944, which existed prior to 1973 is not at all pari materia with Section 155(2) of the Customs Act, 1962. Sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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