TMI Blog2019 (9) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction as public servants in discharge of official duties. If the alleged acts are done or connected in discharge of the official duty then the public servant is entitled to get protection in view of Section 155 of the Customs Act and a public servant can be prosecuted only with the sanction under Section 197 of the Code of Criminal Procedure. In the case at hand it was alleged that the amount was taken away from the possession of the de facto complainant by the accused persons by using force and that was subsequently recovered from their possession. In the instant case from annexure-P/8 annexed to the application filed by the petitioners it appears that the sanctioning authority declined to accord sanction for prosecution of the present petitioners. The ground to decline sanction was that the petitioners are entitled to get protection under Section 155 of the Customs Act, 1962. From annexure P/8 it further appears that the sanctioning authority applied his mind to the facts of the case and refused to accord sanction. The question of necessity of sanction depends upon the facts and circumstance of each case - The protective umbrella provided to a public servant under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs by a Circular being No. VIII (48)04/CUS/P/WB/Tech/10/Part-1, dated 10-8-2010 issued alert notice regarding detention of fake Indian currency notes smuggled to India through land Customs borders. Such notice was forwarded to the Assistant Commissioner of Customs Krishnagar Custom Division. The copy of the said circular was forwarded to present petitioner-1, the Superintendent of Customs for compliance. Annexure-P/1 is the copy of the said Circular dated 10th August, 2010. 4. On 18-9-2010 the Janigipur Customs Preventive Unit on the basis of a specific intelligence/information regarding smuggling of fake currency notes, formed a team of the officers, to conduct preventive duty at National Highway 34. The present petitioners were the members of that team. Annexure-P/2 is the copy of the said order. On 8-9-2010 at about 13 hours while the petitioners were performing their preventive duty at the end of the Ahiran Bridge found two small vehicles having registration numbers identical to the secret information were approaching towards Ahiran Bridge. The petitioners stopped both the vehicles and on query the persons of one vehicle having registration No. WB 58L/9949 admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed that they had been arrested while performing the public duty. The petitioners were produced before the Learned Additional Chief Judicial Magistrate, Jangipur. The Learned Additional Chief Judicial Magistrate, Jangipur after hearing the petitioners and considering the papers granted bail to the petitioners. 7. After getting the copy of the complaint of Suti Police Station Case No. 585 of 2010, dated 18th September, 2010 under Sections 384/411/34 of the Indian Penal Code the petitioners came to know that one Jahir Ahmed son of late Ashan Ali Mondal of village and P.S. Jalangi made a written complaint at 19.05 hours against the petitioners. The petitioners have stated that the complainant lodged a false complaint against the Customs officials who were on duty at the relevant point of time on the basis of the order of their superior authority. The false complaint was lodged to cover up the crime committed by the complainant with the help of police personnel of Suti Police Station. 8. It is the specific contention of the petitioners that the allegations contained in the said FIR are baseless/false and it was purposely done. 9. Suti Police Station Case No. 585 of 2010, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose persons who described themselves to be the officials of the customs to show their identity and also the document showing the seizure of the amount from the possession of the de facto complainant. The officials of the Customs could not show the same on the request of the police personnel. They denied the fact of taking money from the complainant. Local people assembled there. Police personnel made search in the vehicle of the Customs officials being No. WB-02-F/6416 and recovered bag of the complainant containing money. The Customs officials disclosed their identity as Nitai Chandra Das, officer, Shilanand Tigga, Phani Ghosh, Pradyut Kumar Goswami, Susanta Kumar Maity and Haran Sk. Two or three persons fled away. It was specifically alleged by the complainant that those persons being the customs officers trying to grab his money by force. In the FIR the complainant further stated that he came to know that the officials of the Customs regularly took money from the business men by putting them under pressure. 10. On the basis of the said FIR lodged by the de facto complainant Suti P.S. Case No. 585/2010, dated 18-9-2010 was initiated against the present petitioners for commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the Court to pages 36 to 41 of the present application and submitted that on the basis of specific intelligence/information regarding smuggling of fake currency notes the petitioners were performing their duties. During the course of hearing Learned Counsel for the petitioners has also invited the attention of the Court to correspondence in between the Director General of police of West Bengal, Calcutta and Commissioner of Customs (Preventive), West Bengal. Learned Counsel for the petitioners has submitted that from the correspondence made by the Commissioner of Customs (Preventive). West Bengal it is clear that the petitioners were on official duties at the relevant point of time and on the basis of secret information they had knowledge that the two vehicles were carrying fake currency notes. It is his contention that the present criminal proceedings were initiated against the petitioners by the complainant with the help of the police personnel to harass the present petitioners. Learned Counsel has invited the attention of the Court to relevant provisions of Section 155 of the Customs Act, 1962 and has submitted that the present petitioners being the Customs officials and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly the accused/petitioners are public servants as they were the Customs officials at the relevant point of time. The materials placed on record revealed that the petitioners were on official duty when the alleged act as complained of took place. He has further submitted that from the documents annexed by the petitioners it would appear that the sanction to prosecute the petitioners was declined by the sanctioning authority. 17. In support of his contention the Learned Counsel for the petitioners has placed reliance on the decisions in Costao Fernandes v. State at the instance of DSP, CBI, Bombay reported in 1996 Cri. LJ 1723 - 1996 (82) E.L.T. 433 (S.C.) and in the decision of Nirmal Kanti Roy v. State of West Bengal with Ganesh Lal Moondra Ors. v. S. Dasgupta Anr. reported in (1998) 4 SCC 590. 18. I have carefully considered the submissions made by Learned Counsel appearing for the parties. In the instant case the FIR was lodged by one Jahir Ahamed on 18-9-2010 at 19.35 hours with Suti Police Station and on the basis of that FIR Suti Police Station Case No. 583/10, dated 8-9-2010 was initiated against the present petitioners. In the formal FIR it was mentioned that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n discharge of their official duties. In this connection the relevant provisions of Section 106 of the Customs Act, 1962 may be cited. Section 106 of the Act runs as under : Power to stop and search conveyances (1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and - (a) rummage and search any part of the aircraft, vehicle or vessel; (b) examine and search any goods in the aircraft, vehicle or vessel or on the animal; (c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld. (2) Where for the purposes of sub-section(1) - (a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful for any vessel or aircraft in the service of the Government while flying her proper flag and authority auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proof, in support of the stand that the acts complained of were committed in exercise of their jurisdiction as public servants in discharge of official duties. If the alleged acts are done or connected in discharge of the official duty then the public servant is entitled to get protection in view of Section 155 of the Customs Act and a public servant can be prosecuted only with the sanction under Section 197 of the Code of Criminal Procedure. In the case at hand it was alleged that the amount was taken away from the possession of the de facto complainant by the accused persons by using force and that was subsequently recovered from their possession. The copy of the seizure list as prepared by the I.O. on 18-9-2010 mentioned about the seized amount of ₹ 2,03,800/- (Rupees Two Lakh Three Thousand Eight Hundred) from the possession of the accused persons. According to the seizure list the entire amount was seized from all the accused persons. Interestingly the seizure list does not contain the signatures of the persons from whom the amount was seized. The column 7 of the seizure list was kept blank. 22. In the instant case from annexure-P/8 annexed to the application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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