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TMI Blog2020 (6) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2nd, 3rd, 4th, 14th, 15th and 16th accused were officiating in the capacity of Inspectors of Central Excise and Customs. All the above were posted at the unaccompanied baggage clearing centre, Air Cargo Complex, International Airport, Thiruvananthapuram during the period July 2012. As per the practice in place during the relevant time, Non Resident Indians, mainly in Gulf countries, were permitted to despatch their personal consignments to India as unaccompanied baggages, disclosing their addresses and passport numbers. On arrival of the parcel at the Airport, each consignee was obliged to present himself at the station, fill up the baggage declaration form, disclosing the details of each item and its approximate value and receive the parcel on payment of requisite fee imposed by the customs authorities. It is stated that due to heavy flow of parcels everyday, customs officers were permitted to avoid physical verification of small parcels which were bonafide baggages. According to the prosecution during the relevant period, accused customs officials, who were posted at the Air Cargo Complex, entered into a criminal conspiracy with few clearing house agents and permitted them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue pecuniary advantage to themselves. It was alleged that pursuant to criminal conspiracy entered between the accused persons, all the above baggages were released by levying very less customs duty by valuing the consignments at a very nominal rate. All the discrepancies with respect to the passports and the baggage declarations were deliberately omitted to be taken note of and to determine that baggages were of non bona fide nature and for that the defaulting officers had obtained illegal gratification at a fixed rate. According to the CBI, the rate so decided was a fixed rate of Rs. 13 per kg, deducting the customs duty levied, which was the incentive for the officers to levy lesser and lesser customs duty. 6. According to CBI, to streamline the procedure and to ensure revenue, the Commissioner of Central Excise had issued direction, vide circular dated 12.01.2011, that instructions in Circular No. 35/2007 should be strictly followed. It was directed that the entire baggage shall be adjudicated where it was held to be non bonafide baggage. Free allowances allowed for personal effects should not be extended to baggages of non-bonafide nature. 7. After completion of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. It was contended that the sole testimony of one Sivaprasad who himself had given self contradicting statements and also statements which were contrary to Baggage Rules, were relied on by the prosecution. It was also contended that at the unaccompanied baggage centre, Air Cargo Complex, Thiruvananthapuram, the officers were under tremendous pressure to clear 20 to 25 baggages weighing 1000 to 1500 kgs every day. Bonafide human error of judgment, even if any, under such circumstances was liable to be condoned, it was argued. 11. The crux of the prosecution allegation was that the accused who were the customs officers (accused Nos. 1, 2, 3, 4, 12, 13, 14, 15, and 16) conspired with clearing agents (accused Nos. 5 to 10) and in furtherance of the conspiracy deliberately and with malafide intention, omitted to identify the non-bonafide doorto- door baggages which came as unaccompanied baggages, and to send them for adjudication/confiscation. It was alleged that there was an understanding among the customs officials and clearing agents that former would not impose more than Rs. 8 per kg of the weight of consignment as customs duty and only in case of electronic goods, they would im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The CBI got it valued through the senior officers of the customs department itself, who have found that the parcels were earlier grossly undervalued, which version cannot, at this stage, be doubted. The valuation was done by the officers of the customs department itself. Further, the final report itself indicates that though two more of the customs officers were sought to be prosecuted and their sanction was refused by the sanctioning authority, which also indicates that sanction was granted by the competent authority of the customs department after due and proper application of mind. 14. Prosecution is relying on the oral testimony of about 92 witnesses and 109 documents. The specific contention of the CBI was that there were several apparent indicators in the parcel itself as well as on the baggage declaration form which were sufficient to caution the customs authorities that the baggages were not bona fide baggages and were door-to-door delivery parcels. According to them, these indications could not have missed the scrutiny of any honest officer. They were purposefully overlooked by the accused officers pursuant to the conspiracy with the clearing agents, it was alleged. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non bona fide nature of the transaction, or had no reason to doubt the bona fide nature of the baggage. The contention that at the most, it could be an error of judgment or that due to work load, they had to clear off huge quantity of parcels disabling them from a detailed examination also do not merit consideration at this stage. of course, those are matters to be considered at the time of appreciation of evidence at the time of trial, especially in the background of the materials gathered by the prosecution. There is merit in the contention of the CBI that target for clearance of baggages, was fixed by the superiors in the customs department and the wisdom of such a stipulation cannot be considered at this stage. The CBI has a further allegation that at least in one case, one of the passenger had cleared baggage earlier, which could have been easily been verified from the data base. 18. In the light of the oral statements of the various witnesses and the documentary materials relied on by the prosecution, the contention of the petitioners that there are no material to proceed against them and that the only material available was the version of Siva Prasad, the Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecuted for offences under the provisions of Prevention of Corruption Act, compliance under section 155 (2) of the Customs Act was a pre-requisite. 21. In Costao Fernandes v. State at the instance of DSP CBI Bombay (AIR 1996 SC 1383), a customs officer facedp rosecution for offence under section 302 IPC for killing a smuggler by shooting with official revolver, who had attempted to flee with smuggled gold, while being intercepted by the above customs officer. The defence set up was that he was entitled for protection under section 155 of the Customs Act. Holding that Section 155 has nexus with the official duty of the petitioner and analysing the conduct of the petitioner in the background of section 106 of the Customs Act, it was held that facts disclosed that the petitioner caused the death of the smuggler while discharging his official duties. Hon'ble Supreme Court held that the petitioner was entitled for protection under section 155 and consequently the proceeding was quashed. 22. In Public Prosecutor, Madras v. R. Raju and another [(1978) 2 E.L.T. (J 410],(SC) the question that came up for consideration was the applicability of section 40(2) of the Central Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e done under the Act. Thus repelling all the contentions the Supreme Court concurred with the decision of the High Court that the prosecution was barred by time. Evidently, none of the contentions now raised by the petitioners herein were agitated before the Hon'ble Supreme Court. 23. A learned Single Judge of Calcutta High Court had occasion to consider the scope of section 155 of the Customs Act in a prosecution, in Ashok Kumar Singh v. State of West Bengal [( 2016 (338) ELT 255 (Cal.)]. The factual matrix is almost similar to the facts in the present case. A customs officer was charge sheeted by CBI alleging commission of offences punishable under the provisions of IPC and also under the Prevention of Corruption Act. It was challenged before the High Court, inter alia, contending that there was breach of the mandatory provision under section 155 (2) of the Customs Act. This was resisted by CBI relying on the decision in Asst. Collector of Central Excise, Guntur v. Ramdev Tobacco Company. [(1991) 2 SCC 119]. The Hon'ble Supreme Court however relied on its decision in Public Prosecutor v. Raju (cited supra) to support its view that the words "anything purporting to be don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act. Accused relied on Public Prosecutor v. P. Raju's case (supra) to support his contention. According to the learned Single Judge, in the above decision Supreme Court had referred to section 155 of the Customs Act and the corresponding provision of section 40 under the Central Excise and Salt Act, 1944 and held that both the provisions were in pari materia. However, it was noticed by the learned single judge that section 40 of the Central Excise Act 1944 had undergone drastic amendment in 1973. It was noticed that though section 40 (2) of the Excise Act after amendment of 1973, was in pari materia with section 155 (2) of the Customs Act, S. 40(2), prior to amendment, it was not. However, Supreme Court proceeded as if both were in pari materia. It was held that sub section (2) of Section 40 of Central Excise and Salt Act, 1944 which existed prior to 1973 was not at all in pari materia with section 155(2) of the Customs Act, 1962. The learned Single Judge proceeded to hold that the words "no proceeding" appearing on sub section (2) of section 155 of the Customs Act do not include criminal prosecution as for the protection pertaining to prosecution, there was a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice and initiation of consequential adjudication proceedings can be described as "other legal proceedings" within the meaning of section 40(2) of the relevant Act. Supreme Court held that the words " other legal proceeding" must be read ejusdem generis with the preceding words "suit" and "prosecution" as they constitute a genus. It was held that a departmental proceeding like penalty proceeding was therefore placed outside the scope of "other legal proceedings". 31. In the background of the above settled legal propositions and in the context of Section 155(1) and (2) of the Customs Act the present issue needs to be answered. Evidently, sub section (1) and sub section (2) of section 155 of the Customs Act operate in two different fields. Their fields of operation, purpose and object are totally different. The purport of Sub section (2) of section 155 of the relevant section was to apply to "any proceeding other than suit", which definition, according to the special prosecutor for CBI, does not take within its ambit, a criminal prosecution. This contention was not specifically raised before the Supreme Court in Raju's case (supra) and consequently was not considered, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersely, even if the defence of good faith under sub section (1) is not available to the Government or the officer concerned, still a proceeding other than a suit may not be sustainable, if it does not satisfy the condition under sub section (2) of the Act. The bar under Sub section (1) appears to be more in the nature of merits of the decision or order involved whereas, sub section (2) appears to be more procedural and technical. Sub section (1) appears to be intended to protect honest and bona fide officers, who have taken a decision bona fide, though wrongly, or which otherwise may not justifiable in the eye of law. Sub section (2) has two parts; the first part provides for issuance of one month notice. The second part provides a time limit for launching the proceedings to ensure that any decision taken by the officer will not remain as a perpetual ground for challenge, to an unscrupulous litigant. The rationale for providing one month notice appears to be to give an opportunity to the Government or the officers to remedy the grievance of the person proposing to launch prosecution and if possible, to avoid a litigation. To that extent, the above clause appears to be akin to secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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