TMI Blog2020 (6) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was entitled for protection under section 155 and consequently the proceeding was quashed. In an identical situation, the learned Single Judge of Delhi High court in ATUL DIKSHIT VERSUS C.B.I. [ 2017 (1) TMI 1308 - DELHI HIGH COURT] and another judge of Rajasthan High Court in RAVINDRA KUMAR S/O SH. RAMESHWAR LAL VERSUS UNION OF INDIA [ 2016 (11) TMI 468 - RAJASTHAN HIGH COURT] took views contrary to the views of Calcutta High Court and Punjab and Haryana High Court discussed above. In both the above cases, respective accused challenged the prosecution alleging breach of section 155 (2) of the Customs Act - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 club several baggages known by the loose expression of door-to- door delivery, book the entire consignment in the name of an NRI who had recently undertaken travel to India and agreed to impose nominal fee. Utilizing this, several NRIs used to send their parcels through such agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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, sanction for prosecution under section 19(1)(c) of the Prevention of Corruption Act was sought, which was accorded by the Commissioner of Central Excise and Customs. Thereafter, final report was laid against 16 persons, exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended 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 ₹ 8 per kg of the weight of consignment as customs duty and only in case of electronic goods, they would impose a maximum of ₹ 8 per kg of weight of consignment as duty, whereby even if the Assistant Commissioner decided to confiscate the goods and impose maximum penalty, yet it would be beneficial to both, consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 15. The witnesses arrayed by the prosecution include about 12 officers of the customs. The remaining witnesses include clearing agents and their assistants who were involved in the process of clearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad, 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 Commissioner of Central Excise, who has given inconsistent and self contradictory statement, is not prima facie sustainable at this stage, though the sustainability of the statements of various wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 Salt Act, 1944. In that case, accused faced prosecution for breach of various provisions of the above Act along with offences under IPC. Prosecution was resisted by the accused re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 done in pursuance of this Act in section 155(2) of the Customs Act 1962 will extend to illegal omissions and infractions of the requirement of the said Act. It was held that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme 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 specific provision under sub section (1) of section 155 of the Customs Act. 26. According to the learned counsel for the petitioners herein, the above judgment was challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 was contended. Consequently the above decision cannot operate as a precedent in respect of the contention now advanced, it was argued. 32. A close look at sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 80 CPC. Since initiation of suits against Government and its officers are already taken care of by section 80 CPC, possibly it justifies the exclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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