TMI Blog2023 (1) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... Group. Later, the crime come to be registered and a search is made in the office of the Company and at the time the seals are seized and were sent to their examination where it was found that since March 2018 the testing commenced and approximately 832 seals of the Company were faulty. The tamper status of the seals was covered up as the tamper alarm had been switched off. The petitioners are alleged of compromising security of the container which contains what ought to be known to the Department, if not known and would passes muster, even if it is a narcotic drug, the menace of the threat looms large in that sector or that facet. Therefore, finding no merit in the contention that nothing has happened for the last 3 years and a co-ordinate Bench obliterating the proceedings against accused No.3 are of no assistance to the learned counsel appearing for the petitioners. The issue in the lis is shrouded with admissions and certain seriously disputed questions of fact, which will have to be thrashed out only in a full blown proceeding. It is rather surprising as to why the DRI has not proceeded further and filed its final report is a serious matter of the kind. It is for the DRI to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were made to maintain highest level of safety and security. The seals were manufactured by M/s Leghorn Group SRL, Italy and the Company is the authorized distributor of the said seals and the seals are claimed to have been certified by the International Standard Organization (ISO) as high-grade e-seal for containers and M/s Leghorn Group is said to be the pioneer in the field of manufacture and supply of e-seals across the world. RFID is an automatic identification mechanism which is attached to a container and can be accurately read by a handheld device that is operated by a Customs Officer at the relevant port gate. 4. The Union Government intended to implement electronic sealing of cargo by exporters under a self-sealing procedure and in pursuance of the same by circulars called upon various vendors for supply of such seals. The said circulars sought for supply of RFID tamperproof onetime bolt seal. The circulars called upon vendors to supply e-seals with the technology support such as mobile or web applications in order to reduce use of paper. The Company participated in the vendor approval process and custom officials were responsible with regard to verification of detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. It was further alleged that e-seals were tampered regularly and they were being scanned at a distance of few meters without being in locked condition and e-mails of the Company indicated that they had switched off the tampering alerts that led the containers with tampered seals also to get exported. On these facts, it was alleged that the Company had intentionally submitted the reports which had serious ramification on the economy and security of the nation. 8. It appears that accused No.3, as the Managing Director of the Company, had approached this Court calling in question the aforementioned FIR in Criminal Petition No.8197 of 2019. A co-ordinate Bench of this Court by its order dated 13.06.2022 allowed the petition and quashed the FIR insofar as the said Managing Director was concerned on the ground that he had no role to play in the corporate affairs of the Company and the documents produced by him were not controverted. If at all any one is responsible, it was either the Company or the Director. The present petition is preferred on the ground that the co-ordinate Bench has quashed the proceedings against the Managing Director and, therefore, the issue stands covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the national security as maritime containers need to be secure and locked to prevent pilferage and tampering of the goods while on its way to its destination. Seal integrity, according to the learned counsel, is so essential to ensure that contraband goods arms, ammunition and drugs - are not crossing the borders. 11. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. 12. The afore-narrated facts are not in dispute and are therefore, not reiterated. The Company was in-charge of manufacture of RFID e-seals and tampering alert was in the control of the Company in which the 2nd petitioner is the Director. It becomes germane to notice the Circulars issued by Government of India in the Department of Revenue of the Central Board of Excise and Customs with regard to the export procedure and sealing of containerized cargo from time to time. The Circular of 01-07-2017 with regard to sealing of containers reads as follows: 9(vii) The exporter shall seal the container with the tamper proof electronic seal of standard specification. The electronic seal should have a unique number which should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter Exporter Code) Shipping Bill Number Shipping Bill Date e-seal number Date of sealing Time of sealing Destination Customs Station for export. Container Number. Trailer Truck Number. It is further clarified that the information need not be mounted in the electronic seal but tagged to the seal using a web/mobile application to be provided by the vendor of the RFID seals. Data once uploaded by the exporter should not be capable of being overwritten or edited. (b) All vendors will be required to transmit information in para (a) above to RMD and the respective destination ports/ICDs of export declared by the exporter. The arrangements for transmission of data may be worked out in consultation with the RMD and nodal Customs Officer at each ICD/Port. (c) Al vendors shall be required to make arrangements for reading/scanning of RFID one time-Bolt seals at the Customs Ports/ICDs at their own cost, whether through handheld readers or fixed readers. (d) The integrity of the RFID seal would be verified by the Customs Officer at the port/ICD by using the reader scanners which are connected to Data Retrieval System of the ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument and undertake that the seals for which ISO certifications are submitted are the same seals pressed into service. 3.3.Any time a vendor changes his manufacturer-supplier, he shall provide the documentation referred in para-3 of circular 36/2017-Customs to the CBEC, before offering the seals for sale. 3.4. Certifications have also been sought regarding the type/specification of the web-hosted application. While each vendor may develop and design their own web-enabled application, the data elements prescribed under para-4 (a) of Circular 36/2017Customs have to be incorporated. For the purposes of consistency in process of communication with the customs station and the RMD, each vendor shall provide information as specified in para-4(b) of Circular 36/2917-Customs to the department by email in excel format or any other format that may be specified by any field formation or RMD. This would permit ease of consolidation of multiple feeds at the customs station and data integration. All field formations are devised to communicate the designation based email addresses to the vendors, once the list of placed on the website as mentioned at para 3.1 above. 3.5. As a measu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately from the exporters to whom it has been sold. (Emphasis supplied) The communication was clear that the DRI has critically examined RFID e-seals supplied by M/s Leghorn Group, Italy and they have been found to be compromising in security requirements and was a serious issue and therefore, stopped all seals made by M/s Leghorn Group. Later, the crime come to be registered and a search is made in the office of the Company and at the time the seals are seized and were sent to their examination where it was found that since March 2018 the testing commenced and approximately 832 seals of the Company were faulty. The tamper status of the seals was covered up as the tamper alarm had been switched off. 13. Statements of the 2nd petitioner/accused No.2 and one Sri.Arjun Gorur were recorded by the Investigating Officer. The statements recorded by the Investigating Officer of the DRI of the 2nd petitioner assume significance. In the statement recorded what are clearly discerned are found in questions 15 to 24 and they read as follows: Q.15: How why did you switch off Tamper alert Notifications without any directions from any Department or any legal directions? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching off of Tamper alert Notifications or about such tampered e-seals not coming to the knowhow of the Customs. Q.19: From the above, it appears that consignments with eseals, shown as not tampered have been exported out of India, but the e-seals were actually tampered as per your records, during this period. Please confirm. Ans.19: The e-seals were tampered as per our records but they were shown as not tampered as per Customs records, and such consignments have been exported out of India during the period from June 2018 to October, 2018. Q.20: Who took the decision of switching off of the Tamper alert Notifications on your known? Ans.20: Our entire Board of Directors are aware of this decision and it was a decision by the Board. Q.21: Is there any written communication between you and the Customs Department or any other Department about such turning off of the Tamper alert Notifications? Ans.21: No, there is no written communication between us and the Customs Department or any other Department about such turning off. Q.22: It is possible to show that the tampered e-seals were also non-tampered, by manipulating the reader, your softwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Company alone is responsible. The Directors or the Managing Director, as the case would be, were also responsible for their acts and the entire Board was aware of what has happened. 14. Such containers passing muster without getting scanned through the customs can result in a catastrophic effect to the security of the nation. Security could be economic, defence or even narcotic. What passes through the container if not detected can definitely pose a serious threat to any of these to the nation. The answers given by the 2nd petitioner would shock the conscience of the Court, at what he says that they did it in their business interest . Such business houses generating vested interest of business cannot be permitted to sacrifice the interest of the nation , as the security of the nation and its interest, economic or otherwise, is paramount in comparison to any vested interest of any business house in the nation. Any fact of security of the nation should not be permitted to be compromised come what may . 15. The petitioners are alleged of compromising security of the container which contains what ought to be known to the Department, if not known and would passes mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation. 11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated above, the impugned judgment and order [ Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed. (Emphasis supplied) 16. In the light of the facts obtaining in the case at hand and the judgment of the Apex Court (supra), I do not find any merit to interfere or interdict the investigation, against the petitioners, as any interference would amount to putting a premium on the acts of the petitioners, for having compromised the security of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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