TMI Blog1990 (2) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Revision Application No. 464 of 1982 is against the rejection by the Magistrate of the prayer to dismiss the complaint as against Accused No. 5. The contention is that for various reasons, the complaint as against Accused No. 5 was not maintainable. The appeal aforementioned is by the Complainant taking exception to the dismissal of the complaint vis-a-vis Accused Nos. 2,4,6, 7. Accused No. 3 could not be served and therefore, the prosecution so far as it relates to him is virtually on the dormant file. Complainant's grievance is that there was no warrant for holding that the sanction on the basis of which the complaint had been filed did not enable the prosecution of Accused Nos. 2,4,6 and 7. 3. For a proper understanding of the issues to be resolved in this order, it is necessary to narrate the background :- M/s. Hanspa-Knit Pvt. Ltd. is based in the KFTZ and is engaged in the manufacture and assembly of electrical/electronic goods meant for 100 per cent export. For the purpose of its business Hanspa required an import of components of foreign make. Persons engaged in this type of business which fetches precious foreign exchange to the Country, are exempted from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs as required by the aforementioned section. Assuming that the signatory to the sanction held the post of the Development Commissioner as also the Collector of Customs, it was only in the latter capacity that he can accord sanction. He had however purported to act as a Development Commissioner and that vitiated the sanction. The sanction did not give the impression of the authority having applied his mind to the relevant materials on the basis of which alone sanction could be accorded. It spoke of "unauthorised export of bonded goods". However, the complaint spoke of "evasion of payment of import duty". This was not covered by the sanction. In fact the factual allegations mentioned in the complaint did not disclose any evasion of import duty. There was no knowing whether Hanspa had executed or got cancelled a security bond. The offence ascribed to the accused had been committed in Bombay and therefore sanction to try the alleged offenders could have been accorded only by a Collector of Customs at Bombay. In the instant case the sanctioning authority was an officer based in KFTZ. No part of the offence had been committed at Kandla. The sanction order referred only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjan Singh has signed as the Development Commissioner of KFTZ which appears to be under the administrative supervision of the Government of India, Ministry of Commerce and Civil Supplies. This I deduce from the address at the top of the sanction order. If Niranjan Singh has been empowered under Section 6 of the Customs Act, prima facie, it would appear that the objection under consideration cannot survive. There is of course a possibility that Niranjan Singh may be holding both the posts, viz. the Development Commissioner and the Collector of Customs, in which case in the former capacity he could not have exercised powers attached to the latter capacity. This would raise questions not necessarily excluding ones of fact. At the stage at which the present complaint is, it is not possible to give an answer one way or the other. Therefore, this contention's consideration should be relegated to a later stage. 6. It is next contended that the sanction makes no reference to Niranjan Singh having applied his mind to the facts and materials relevant to the prosecution sanctioned by him. Again, this involves consideration of a point which in the absence of facts cannot be properly determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the transaction constituting the offence took place at Kandla. Niranjan Singh's sanction was thus of no avail. Mr. Desai is right in the contention to the extent that there be a territorial nexus between the situs of the offence and the authority according sanction. But can it be said, that the entire cause of action took place at Bombay? After all the components came duty free to KFTZ. It was that Port which was entitled to collect import duty. At this stage one need not go into details to ascertain whether the acts constituting the offence have or do not have any connection with the event of import. If not, perhaps the contention raised by Mr. Desai may require to be sustained. 10. The complainant's grievance vis-a-vis the discharge of accused 2,4,6 and 7 has now to be considered. Mr. Patwardhan submits that accused 2 to 4 and 6 and 7 are integrally connected with accused Nos. 1 and 5. Sanction naming the latter necessarily included the former. Reliance in support of this connection is placed upon Section 140 of the Act. What this section lays down is no more than that when a company, which expression is made to include a firm or other association of individuals, commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities. The Collector of Customs imposed a penalty of Rs. 1,00,000/- upon accused No. 1 on 2-1-1981. Accused No. 1 preferred an appeal to the Central Board of Excise and Customs. The Board on 24-7-1981 set aside the penalty imposed. Accused 5 was noticed to show cause against the contemplated action for conniving at the illegal export by accused No. 1 and violating various regulations of the Custom House Agents Licensing Regulations, 1965. The Collector of Customs exonerated accused 5 having regard to the absolution of accused No. 1 by him and the Board. Mr. Desai contends that the department had proceeded on the very same set of facts as figure in the complaint. That being the background, the exoneration afore mentioned means an automatic discharge or acquittal. Where this be a foregone conclusion the interests of justice require that accused should not be subjected to the ordeal of a trial which is bound to be a protracted one. To rule on this plea it will be necessary to consider two questions: The first is whether the exoneration in the disciplinary or adjudicatory proceeding is by itself a reason for quashing a pending complaint? Second, what is the effect of the exonerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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