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TMI Blog2023 (6) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the deceased A6 during the period October 2002 to January 2003 entered into a criminal conspiracy in order to get ineligible Duty Entitlement Pass Book [hereinafter referred to as 'DEPB' for the sake of convenience] in the name of various exporters by producing forged Bank Realization Certificate [hereinafter referred to as 'BRC' for the sake of convenience] of Bank of Saurashtra, G.T.Branch, Chennai and Dhanalakshmi Bank, G.T.Branch, Chennai showing realization of Foreign Exchange against export of coloured water and mis-declared the customs as high quality printing ink for refilling catridges and caused loss to the Government of India. Thus, A1 to A5 have committed the offences punishable under Sections 120B r/w 420, 467, 468, 471 IPC and Sections 132 and 135 of the Customs Act, 1962 [hereinafter referred to as 'CS Act' for the sake of convenience] and also specific offences under Sections 468, 467 r/w 471 and 420 IPC and Sections 132 and 135 of CS Act. 4. On the complaint given by the de-facto complainant the respondent/Police registered a case against A1 to A5 in F.I.R.No.RC. 5(e)/2003. After investigation, they laid a charge sheet before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 420 IPC; and as against A1 to A4 under Sections 132 and 135 of CS Act. 8.2 The petitioner/A1 in Crl.R.C.No.1161 of 2018 was convicted and sentenced as under : Offence Sentence Sections 120B r/w 420, 467, 468 and 471 IPC and Sections 132 and 135 of CS Act to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. Section 467 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. Section 467 r/w 471 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. Section 420 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. Section 420 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that as per the prosecution, the revision petitioner/A1, who is the proprietor of M/s.Asian Shipping Services availed DEPB credits from the office of the Director General of Foreign Trade in the name of various exporters viz., i) Prime Stone and Monuments (Proprietor Mr.Kenneth Welsley); ii) Sri Mahalakshmi Iron and Steel (Proprietor Mr.D.Purushothaman/A3); iii) Sevenstar Global Logistics (Proprietor Mr.R.G.Khader/A2); iv) Trans Ind Impex (Proprietor Mr.Shahul Iqbal) and v) Exim Engineering Services (Proprietor Mr.Sampu Rawther) by producing forged BRC's, which were issued by A5 and exported inferior quality printing ink. Further, DEPB licence of i) Prime Stone and Monuments; ii) Sri Mahalakshmi Iron and Steel; and iii) Sevenstar Global Logistics totalling to the tune of Rs.33,49,718/- were sold to one Vikram Jain (P.W.29) of Padmavathi Enterprise and received the monetary benefits to the tune of Rs.25,93,167/-. However, DEPB licence issued to Seven Star Global Logistics to the tune of Rs.6,79,350/- was not sold and the DEPB credit not utilised. As such no wrongful loss has been caused to the exchequer and the signature of the petitioner/A1 is not found in the said transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel further submitted that the revision petitioner/A1 was not involved in any criminal conspiracy with regard to manufacturing or preparation of seized printing ink and obtaining DEPB credits by using forged BRC. The entire case of the prosecution wholly rests on the statements of A1/Ex.P1 and Ex.P17 dated 30.01.2003 and 01.02.2003. Subsequently the said statements were retracted by the petitioner/A1 on 06.02.2003, when he was in prison. On 30.01.2003, the DRI officials took custody of the revision petitioner/A1 and he was not allowed to sleep or leave their office until his remand on 01.02.2003 and they harassed him to the core and forcibly obtained his statement and also resisted the petitioner from telling the truth before the Magistrate. Further, the petitioner/A1 has not benefited out of the alleged criminal acts as projected by the prosecution and the prosecution has not proved that he has gained out of such transaction. Hence, the confession statement recorded by the DRI officials is not admissible in evidence. As per the latest decisions of the Hon'ble Supreme Court that any statement recorded from the accused by the investigating agency is not admissible in evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of P.Ws.35, 39 and 48. He further submitted that while conducting search and seizure none of the independent witnesses were examined by the DRI officials. The non-examination of independent witnesses to the alleged search is fatal to the case of the prosecution. He further submitted that the materials seized from the premises of A1 were not marked as M.Os before the trial Court. Further, the alleged seizure of seals M.O.1 to M.O.15 were not sent to expert opinion for comparing the same with original seals of the concerned Bank. He further submitted that the appellant has no necessity to cheat the customs authority as he has only acted as Customs House Agent. 10.5. The learned Senior counsel further submitted that as per the Customs Act, the DRI officials alone can conduct investigation and proceed the case and the CBI officials have no jurisdiction and authority to investigate and register the case. In the instant case, without jurisdiction CBI entered into the investigation and filed the charge sheet before the trial Court. Therefore, the statement recorded under Section 108 of CS Act cannot be taken in the case where the investigation was conducted by CBI. Both the Courts below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision. 12.1 Per contra, Mr.K.Srinivasan, learned Special Public Prosecutor appearing for the respondent submitted that A1 to A5 along with A6 entered into criminal conspiracy and availed ineligible DEPB credits by producing forged BRC's which were given by A5. Further, A1 and A2 confessed their illegal act under Section 108 of CS Act and the material objects recovered from the premises of A1 were corroborated with the confession statement of A1. Based on the information, the DRI officials conducted a search in the premises of the revision petitioner/A1 and seized the alleged materials and recorded the statement of A1 under Section 108 of CS Act on 30.01.2003. In his statement, A1 admitted the allegations made against him. On completion of the investigation, A1 was remanded to judicial custody and he was produced before the Magistrate. At that time of remand, A1 not complained to the Magistrate, as he was surrounded by the DRI officials, but later in the jail as per the advice of his counsel, he sent a retraction letter Ex.D3 and retracted his confession. The prosecution proved that the petitioner/A1 manufactured coloured water and packed the same in pet bottles with the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial or other interests of the Central Government or Public Sector undertaking under the Central Government. The trial Court as well as the appellate Court rightly appreciated the entire oral and documentary evidence and convicted and sentenced the petitioners/A1 and A5. There is no merit in the revision and the same is liable to be dismissed. 13. Heard the learned counsel on either side and perused the materials available on record. 14. The sum and substance of the case of the prosecution is that the accused fabricated the BRC's in the name of M/s.Prime Stones and Monuments, M/s.Sri Mahalakshmi Iron and Steel and M/s.Seven Star Global Logistics as if the same were issued by the Bank of Saurashtra, George Town, Chennai and Dhanalakshmi Bank, George Town, Chennai and also involved in affixing the fabricated rubber stamp of the Bank. By using the said BRC's they have submitted shipping bills by way of getting ineligible DEPB licence. The further allegation is that the accused have exported coloured water and made a false declaration that they exported high quality ''PRINTING INK FOR REFILLING CARTRIDGES''. Further, A1 to A3 have sold the said licence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they seized materials objects. 19. P.W.47 deposed that A1 approached him and sought for IEC Certificate and he introduced P.W.50 Baskar. The said Baskar arranged licence for A1 in the name of M/s.Sri Mahalakshmi Iron and Steel, for which, A1 paid Rs.30,000/- to Baskar through him by cheques vide Exs.P185 to 195 and he also identified the same during his deposition. 20. P.W.48 has clearly deposed that he was working as Beat Postman for Beat No.9 Long Ford Road, Bangalore and during 2003- 2004 he received Ex.196 registered post containing address of Proprietor/ Manager, M/s.Best Printing Ink, 35/38, Langford Road, Shanti Nagar, Bangalore-52 which was handed over to him for delivery. On enquiry, no such address was found in that door number. From the evidence of P.W.48 the prosecution proved that the address mentioned in the pet bottles containing the address of Best Company, Bangalore is not at all existing in Bangalore. 21. P.W.23 who was working as Chemical Examiner Grade-I, Customs House Laboratory at Vizag has clearly deposed about Ex.P19 chemical analysis report dated 03.02.2003. In his report he has stated that the alleged samples which were examined are in the form of Dark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable doubt that the petitioner/A1 has committed the charged offences. Further, it is not in dispute that A5 was working as Assistant Manager in the Dhanalakshmi Bank, George Town, Chennai and from the evidence of P.Ws.20 and 21 the prosecution proved that BRC issued by A5 are not genuine one and he was not authorised to issue such BRC and that too in the name of the Branch which is not empowered to issue such BRC and he has issued for the sole reason to get illegal benefits along with A1 and A2. The trial Court rightly found that A1 and A5 has committed the charged offences and convicted and sentenced them, which was confirmed by the lower Appellate Court. 26. Considering the facts and circumstances, this Court does not find any merit in the revision and there is no perversity in appreciation of evidence by the both Courts below. Hence, these revision cases are liable to be dismissed. 27. Accordingly, CRL.R.C.Nos.1161 and 1007 of 2018 are dismissed. The conviction and sentences passed by the Courts below as against A1 and A5 are confirmed. The trial Court is directed to take steps to secure the custody of the accused persons to undergo the remaining period of sentence, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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