Madras High Court
Ramkumar vs M/S.V.M.&Sons on 19 January, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal Nos.102 to 104 of 2003 &
Criminal Appeal No.792 of 2003
Ramkumar .. Appellant/A3,A4,A5 in Crl.A.Nos.
102,103,104/2003 respectively
1.M/S.V.M.&Sons
rep. by Sh.Shahul Hameed
No.52, Muthukatan Street
Periamet, Chennai-3.
2.Shahul Hameed .. Appellants/A1&A2 in
Crl.A.No.792/2003
State rep. by
Inspector of Police
CBI/EOW/Chennai. .. Respondent/Complainant
in all Crl.A.Nos.
Prayer in Crl.A.Nos.102 to 104/2003:Criminal Appeals filed under Section 374(2) of Cr.P.C. against the judgment and order of conviction and sentence passed by the learned Principal Special Judge for C.B.I. cases, Chennai, in C.C.Nos.6, 1 and 2 of 1999 dated 20.12.2002.
Prayer in Crl.A.No.792 of 2003:Criminal Appeal filed under Section 374 of sub-C1 (iii) (a) against the judgment and order of conviction and sentence passed by the learned Principal Special Judge for C.B.I. cases, Chennai, in C.C.No.6 of 1999 dated 20.12.2002.
For Appellant in : Mr.R.Shanmugasundaram, senior counsel
(Crl.A.No.102 to for Mr.K.S.Ramachandran
104 of 2003)
For Appellant in :Mr.Jaseem Mohamed
(Crl.A.No.792
of 2003)
For Respondent : Mr.N.Chandrasekaran
Special Public Prosecutor for C.B.I.cases
C O M M O N J U D G M E N T
Criminal Appeal Nos. 102 to 104 of 2003 have been preferred by the accused against the judgment of conviction and sentence dated 20.12.2002, passed by the learned Principal Special Judge for C.B.I. Cases, in C.C.Nos.6, 1 and 2 of 1999. Criminal Appeal No.792 of 2003 has been preferred by the accused against the judgment of conviction and sentence dated 20.12.2002, passed by the learned Principal Special Judge for C.B.I. Cases, in C.C.No.6 of 1999.
2.Since several charges have been framed against the accused, it is appropriate to refer to the following details:
C.C.No. Accused Charges Addl.
charges Conviction and Sentence 1/99
1.M/S.Triumph Leathers, rep. by P.Stanley, 2.P.Stanley
3.Solomon
4.M.Ramkumar A1-u/s 120B, 420 r/w 511 IPC A2&A3-u/s 120B, 420 r/w 511, 420 r/w 511, 468, 471 r/w 468 IPC A4-u/s 120B IPC & 13(2) r/w 13(1)(d) of P.C. Act, 1988 A1 to A3-u/s 132, 135(1)(i) of Customs Act, 1962 A4-u/s 136(i) of Customs Act, & 7 of P.C. Act A1&A2-to undergo imprisonment till the raising of Court and to pay a fine of Rs.1000/- each u/s 120B, 420 r/w 511(2 counts), 468, 471 r/w 468 IPC, S.132& 135(1)(i) of Customs Act, in default to undergo R.I. for 2 months each.
A3-to undergo imprisonment till the raising of Court u/s 120B, 420 r/w 511(2 counts), 468, 471 r/w 468 IPC, S.132&135(1)(i) of Customs Act, in default to undergo R.I. for 2 months each.
A4-to pay a fine of Rs.1000/- u/s 120B IPC in default R.I. for 2 months and also to undergo 1 year R.I. u/s 13(2)r/w13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default to undergo 2 months R.I. and also to pay a fine of Rs.1000/- u/s 136(1) of Customs Act, in default to undergo R.I. 2 months and also imposed a sentence of 6 months u/s 7 of P.C. Act and imposed a fine of Rs.1000/- in default to undergo 2 months R.I. 2/99
1.M/S.B.V. Leathers, rep. by A2 and A3
2.Vinitha
3.Rathnama
4.K.Ashok Kumar
5. M.Ramkumar A1-u/s 120B, 420 r/w 511 IPC A2,A3&A4-u/s 120B, 420 r/w 511, 420 r/w 511, 468, 471 r/w 468 IPC A5-u/s 120B IPC and 13(2) r/w 13(1)(d) of P.C. Act, 1988 A1 to A4-u/s 132, 135(1)(i) of Customs Act, 1962 A5-u/s 136(i) of Customs Act, & 7 of P.C. Act A1-sentenced to pay a fine of Rs.1000/- u/s 120B, 420 r/w 511 IPC and 132 & 135(1)(i) of Customs Act, in default 2 months R.I. for each.
A2 to A4-sentenced to undergo imprisonment till the raising of the Court u/s 120B, 420 r/w 511 (2 counts), 468, 471 r/w 468 IPC, S.132& 135(1)(i)ofCustoms Act and also imposed a fine of Rs.1000/- each, in default to undergo R.I. for 2 months each.
A5-sentenced to pay a fine of Rs.1000/- u/s 120B IPC and u/s 136(1) of Customs Act, in default 2 months R.I. each and also to undergo 1 year R.I. u/s 13(2) r/w 13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default R.I. 2 months and also to undergo 6 months R.I. u/s 7 of P.C.Act and imposed a fine of Rs.1000/- in default to undergo R.I. for 2 months.
6/991.M/S.V.M.Sons rep. by Shahul Hameed
2.Shahul Hameed
3.M.Ramkumar A1-u/s 120B, 420 r/w 511 IPC A2-u/s 120B, 420 r/w 511, 420 r/w 511, 468, 471 r/w 468 IPC A3-u/s 120B IPC and 13(2) r/w 13(1)(d) of P.C. Act, 1988 A1 & to A2-u/s 132, 135(1)(i) of Customs Act, 1962 A3-u/s 136(1) of Customs Act, & 7 of P.C. Act A1-sentenced to pay a fine of Rs.1000/- u/s 120B, 420 r/w 511 IPC and 132 & 135(1)(i) of Customs Act.
A2-sentenced to undergo imprisonment till the raising of the Court u/s 120B, 420 r/w 511 (2 counts), 468, 471 r/w 468 IPC, S.132& 135(1)(i)of Customs Act and also imposed a fine of Rs.1000/- each, in default to undergo R.I. for 2 months each.
A3-sentenced to pay a fine of Rs.1000/- u/s 120B IPC and u/s 136(1) of Customs Act, in default 2 months R.I. each and also to undergo 1 year R.I. u/s 13(2) r/w 13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default R.I. 2 months and also to undergo 6 months imprisonment u/s 7 of P.C.Act and imposed a fine of Rs.1000/- in default to undergo R.I. for 2 months.
3.The skeleton of the prosecution case is as follows:
(i) M/S. V.M. Sons, represented by Shahul Hameed in C.C.No.6 of 1999 and M/S.Triumph Leather, represented by P.Stanley in C.C.No.1 of 1999 and M/S.B.V. Leathers, represented by A2-Vineetha and A3-Rathnama in C.C.No.2 of 1999 are Exporters of the finished leathers. A3-Solomon in C.C.No.1 of 1999 and A4-Ashok Kumar in C.C.No.2 of 1999 are Clearing Agents.
(ii)The case of the prosecution is that in C.C.No.6/1999, the Exporters have exported 20 and 16 bundles as per shipping bill Nos.11464 and 11465 respectively, dated 29.10.2006. Likewise, in C.C.No.1/1999, M/S.Triumph Leather has exported 10 bundles as per shipping bill No.11463, dated 28.10.1996 and in C.C.No.2/1999, M/S.B.V.Leather has exported 14 bundles as per the shipping bill No.11462, dated 29.10.1996. At that time, the appellant/Ramkumar, who is working as an Appraiser in the Customs Department has made an endorsement "Let Export" order.
(iii) Except the appellant in Crl.A.Nos.102 to 104 of 2003, all other accused are Exporters and clearing Agents. The exporters export finished leather to foreign countries as per the orders of the buyers. In this case, the exporters after packing the leather consignments and preparing the packing list, invoice and declarations, process declaration and duty drawback declaration signed by the appellant in Crl.A.No.792 of 2003 and other accused viz. M/S. Triumph Leathers and M/S.B.V.Leathers on behalf of other exporters submitted the documents to their Customs House Agent namely, M/S.Mubin and Co by P.W.12. The export documents such as Shipping bills were prepared by the typist of P.W.12 and since P.W.12 is a clearing agent, they obtained signature by P.W.16 in the shipping bills and P.W.10 submitted, the export documents such as shipping bills, Invoices, Packing lists and declarations to the Export documentation Centre, Customs House, Chennai, for export of consignments relating to Exs.P25, P28, P31 and P43 for the assessment by the Customs Authorities (P.W.9 and 15) and the said documents were assessed by P.W.9 and open order of relevant bundles were passed by P.W.15 and returned the export documents to P.W.10 for further necessary action at the Docks. P.W.10 in turn handed over the said export documents to P.W.11 for examination of bundles in the consignment at Docks by Appraiser Ramkumar in these cases. The said documents were verified by P.W.8 and placed before Ramkumar for open and examination of bundles and passing "Let Export" order in the reverse side of the shipping bills. The case of the prosecution is that Ramkumar demanded Rs.3,000/- per shipping bill for passing "Let Export" order as the leathers were not finished due to the absence of protective coat and dyeing and did not pass the "Let Export" order and informed the same to P.W.11-Ramaiah, who in turn informed P.W.12 over phone about non-passing of "Let Export" order. P.W.12 came to the docks and met Ramkumar, Appraiser and obtained "Let 'Export" order in the shipping bills.
(iv)On 31.10.1996, P.W.1, D.R.I. received intelligence from C.B.I. about the unfinished leather being exported as finished leather in contravention of Exim policy and duty drawback scheme. P.W.1 directed his officials (P.W.3 to P.W.6) to detain the consignments under shipping bills in Exs.P25, P28, P31 and P43 and also directed his officers to take samples (M.O.1 to M.O.4 series) from pieces of bundles. Accordingly, P.W.3 to P.W.6 took sample of leathers in the presence of A3 and P.W.6 & P.W.7 at Madras Port, New CFS, 'O' Yard and other officials under the proceedings Exs.P18, P17 and P21 respectively, signed by Ramkumar and P.W.3 to P.W.6 and others. P.W.1 forwarded the said samples under M.O.1 to M.O.4 along with his requisite letter under Exs.P2, P5 and P8 to C.L.R.I., Adyar, Chennai, for their opinion whether the samples satisfy the norms declared by the accused in Exs.P25 to P48 as per ETC PN 3/92-97 in Exs.P10, P11 and P14. P.W.2-Parthasarathy along with one N.K.Chandrababu examined the said sample leathers under M.O.1 to M.O.4 series and expressed their opinion in Exs.P3, Ex.P6=Ex.P12 and Ex.P9=Ex.P13 signed by P.W.2, which states that the leather samples are "not finished leathers" as per Public Notice No.3-ETC (PN)92-97.
(v)On receipt of the opinion under Exs.P3, P6 and P9 from C.L.R.I., P.W.1 ordered P.W.4 to seize the consignment. On 27.11.1996, consignments were seized under Exs.P15, P22 and P24. P.W.4 also examined Suresh Babu, Kothandram and Shahul Hameed and recorded their statements under Exs.P19, P20 and P23. For further detailed investigation, P.W.1 lodged a complaint under Exs.P1, P4 and P7 with SP, C.B.I., E.O.W. Chennai, who in turn registered a case as per Exs.P64, P66 and P67 respectively.
(vi)On receipt of the complaint from P.W.1, C.B.I. represented by P.W.17 and P.W.18, registered regular case in R.C.5/E/97 (Ex.P64), 14/E/97 (Ex.P66) and 15/E/97 (Ex.P67) on 10.03.1997 and took up the investigation. During investigation, they examined witnesses P.W.1 to P.W.12 and P.W.15 & P.W.16 and recorded their statements. On 04.09.1997, P.W.20 recorded the statement of P.W.12 under Section 164 Cr.P.C. Since the accused had committed the offences under the Customs Act, P.W.19 obtained sanction from P.W.13 and P.W.14-Commissioners of Customs, Chennai, for prosecution against the accused in all the three cases, as they have committed the offences punishable under Sections 132 and 135(1)(i) of Customs Act, 1962 and the sanctions are marked as Exs.P51 to P53. After obtaining sanction orders, P.W.19 laid the charge sheets before the learned ACMM, EO-1, Chennai for offences punishable under Sections 120B read with 420, 420 read with 511, 468 and 471 I.P.C. and Sections 132 and 135(1)(i) of Customs Act, 1962 and Sections 7 and 13(2) read with 13(1)(d) of P.C.Act, 1988.
(vii)Learned Special Judge for C.B.I. cases, after following the procedure, framed necessary charges against all the accused. Since the accused pleaded not guilty, the Special Court examined P.W.1 to P.W.20 and marked Exs.P1 to P67 & M.O.1 to M.O.4. On the defence side, D.W.1 was examined. After considering the oral and documentary evidence, the learned Special Judge has convicted and sentenced them as stated above.
4.Challenging the conviction and sentence as stated above, the following accused have preferred the appeals, which are as follows:
Criminal Appeal Conviction and sentence Appellant/ Accused Crl.A.Nos102 to 104 of 2003 A3-sentenced to pay a fine of Rs.1000/- u/s 120B IPC and u/s 136(1) of Customs Act, in default 2 months R.I. each and also to undergo 1 year R.I. u/s 13(2) r/w 13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default R.I. 2 months and also to undergo 6 months imprisonment u/s 7 of P.C.Act and imposed a fine of Rs.1000/- in default to undergo R.I. for 2 months.
A4-to pay a fine of Rs.1000/- u/s 120B IPC in default R.I. for 2 months and also to undergo 1 year R.I. u/s 13(2)r/w13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default to undergo 2 months R.I. and also to pay a fine of Rs.1000/- u/s 136(1) of Customs Act, in default to undergo R.I. 2 months and also imposed a sentence of 6 months u/s 7 of P.C. Act and imposed a fine of Rs.1000/- in default to undergo 2 months R.I. A5-sentenced to pay a fine of Rs.1000/- u/s 120B IPC and u/s 136(1) of Customs Act, in default 2 months R.I. each and also to undergo 1 year R.I. u/s 13(2) r/w 13(1)(d) of P.C.Act and to pay a fine of Rs.1000/- in default R.I. 2 months and also to undergo 6 months R.I. u/s 7 of P.C.Act and imposed a fine of Rs.1000/- in default to undergo R.I. for 2 months.
Ramkumar, who was arrayed as A3, A4 and A5 in C.C.Nos.6, 1 and 2 of 1999 respectively, has come forward as appellant against the conviction and sentence passed in C.C.Nos.6, 1 and 2 of 1999 Crl.A.No792/ 2003 A1-sentenced to pay a fine of Rs.1000/- u/s 120B, 420 r/w 511 IPC and 132 & 135(1)(i) of Customs Act.
A2-sentenced to undergo imprisonment till the raising of the Court u/s 120B, 420 r/w 511 (2 counts), 468, 471 r/w 468 IPC, S.132& 135(1)(i)of Customs Act and also imposed a fine of Rs.1000/- each, in default to undergo R.I. for 2 months each.
1.M/S.V.M.Sons, rep. by Shahul Hameed, 2.Shahul Hameed, who were arrayed as A1 and A2 in C.C.No.6 of 1999, has come forward as appellants against the conviction and sentence passed in C.C.No.6 of 1999
5.Challenging the conviction and sentence, Mr.R.Shanmugasundaram, the learned senior counsel appearing for the appellant/Ramkumar, would submit that the appellant was arrayed as A3, A4 and A5 respectively in C.C.Nos.6, 1 and 2 of 1999. He is an Appraiser in the Customs Department. He was found guilty under Sections 120B IPC and 13(2) r/w 13(1)(d) of P.C. Act and Sections 136(1) of Customs Act & 7 of P.C. Act. He would further submit that there is no doubt that the appellant herein is a public servant and there is no iota of evidence before this Court to show that the appellant herein has demanded illegal gratification and received the same. The only witness alleged to be examined is P.W.12, who has not supported the case of prosecution. The statement of P.W.12 under Section 164 Cr.P.C. was recorded by the learned Metropolitan Magistrate, who examined as P.W.20 and the same was marked as Ex.P50, which is not a substantial piece of evidence. He would further submit that as per the evidence of P.W.20, who examined P.W.12 under Section 164(1) Cr.P.C. (i.e.) confession of the accused, that confession statement cannot be relied against the appellant/Ramkumar, since P.W.12 was examined as a witness before this Court. As per Section 30 of Evidence Act, the confession statement of the co-accused will be admissible or applicable, if the joint trial of both the accused has been ordered. But here, P.W.12 even though his statements were recorded under Section 164(1) Cr.P.C. as confession of the accused, he was not arrayed as an accused. He is only cited as a witness and examined as P.W.12. So Ex.P50 is not an admissible evidence. He further submitted that evidence of P.W.20 cannot be looked into, because he is not a competent person to narrate statements given by P.W.12 under Section 164 Cr.P.C. It is further submitted that statement under Section 164(5) Cr.P.C. has been recorded from the witness used only from the corroboration and contradiction and it is not a substantial piece of evidence. He would further submit that there is no evidence for conspiracy and no one has deposed the conspiracy and Expert opinion Exs.P3, P6 and P9 are not a substantial evidence. So the Special Court committed an error in convicting the appellant/accused under Section 120B I.P.C., Section 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of P.C. Act and Section 7 of P.C. Act, by considering the evidence of P.W.20 and Ex.P50. Hence, he prayed for setting aside the judgment of conviction and sentence passed against the appellant/Ramkumar. To substantiate his argument, he relied upon the following decisions:
(i) AIR 1960 SCC 490 (State of Delhi v. Shri Ram Lohia)
(ii)1972 (3) SCC 280 (Ram Kishan Singh) v. Harmit Kaur and another)
(iii)1998 (4) SCC 605 (George and others v. State of Kerala and another)
(iv) 1995(2) SCC 76 (Shivappa v. State of Karnataka)
(v) (2007) 12 SCC 230 (Aloke Nath Dutta and others v. State of West Bengal)
6.Mr.Jaseem Mohamed, the learned counsel appearing for the appellants/A1 & A2 in Crl.A.No.792 of 2003 would submit that M/S.V.M.Sons represented by Shahul Hameed, is an Exporter. It is further submitted that A1 was convicted and sentenced to pay a fine of Rs.1,000/- under Section 120B, 420 r/w 511 IPC and Sections 132 & 135(1)(i) of Customs Act and A2 was convicted and sentenced to undergo imprisonment till the raising of the Court under Section 120B, 420 r/w 511(2 counts), 468, 471 r/w 468 IPC and Sections 132 and 135(1)(i) of Customs Act and also imposed a fine of Rs.1,000/- each, in default to undergo R.I. for two months each. But they have not committed any such offence and the same has not been proved beyond reasonable doubt, because Expert opinion is not a substantial evidence. He further submitted that the authorised signatory of the reports under Exs.P3, P6 and P9 was one Chandrababu, who was not examined. He also adopted the argument of learned senior counsel for the appellant. Hence he prayed for allowing of the appeal.
7.Resisting the same, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I. cases would submit that except the appellants herein, other exporters and clearing Agents were also found guilty under Section 120B I.P.C. 420 r/w 511 IPC and Sections 132 & 135(1)(i) of Customs Act, but they were not preferred any appeal. There was a conspiracy in passing "Let Export" order, to give advantage to the exporters by customs duty exemption and also duty drawback, even though the appellant/Ramkumar has aware of the fact that the leather intended to be exported is not a finished leather. So the conspiracy has been proved by the evidence of prosecution witnesses and statement of one Suresh Babu (i.e.) Ex.P19. Hence the Special Court has correct in held that the accused were found guilty under Section 120B I.P.C. He further submitted that the learned Special Judge has considered the evidence of P.W.8, P.W.9, P.W.15 and Exs.P25, P28 and P31, came to the correct conclusion that the appellant, who is an Appraiser in Customs Department has abused his position as public servant to obtain pecuniary advantage for exporters and passed "Let Export" order. That factum has been correctly considered by the Special Court and convicted the accused. Appellant/Ramkumar has committed criminal mis-conduct by abusing his position and obtained for the exporters pecuniary advantage of customs duty exemption and also to obtain duty drawback for the exporters. So the judgment of conviction and sentence passed by the Special Court does not warrant any interference. Hence he prayed for dismissal of the appeals. To substantiate his argument, he relied upon the decision reported in A.I.R. 1963 SC 1116 (M.Narayanan Nambiar v. State of Kerala).
8.Considered the rival submissions made on both sides and the materials available on record.
9.Now this Court has to decide the facts of the case. The appellant in Crl.A.No.792 of 2003 is an Exporter of leather products from India to foreign countries. It is also an admitted fact that if the products are finished products, the exporters are entitled to customs duty exemption and also duty drawback. The exporters are intended to export finished leathers and after packing the leather consignments and preparing the packing list, invoice and declarations signed by Agents A3 and A4 in C.C.Nos.1 and 2 of 1999, who submitted their documents to their Customs House Agent namely M/S.Mubin and Co, wherein P.W.12 is working. As P.W.12 is a clearing agent, P.W.10, who is the writer under P.W.12 has deposed that a Typist namely, Lakshmi has prepared the export documents. On receipt of the documents, P.W.10 has presented the documents before the Customs Department and obtained shipping bills and assessment order. P.W.10 further deposed that he handed over the the same to P.W.11-Ramaiah, who is the clearing Clerk for further processing of the cargo. The shipping bills, packing list and invoices under Exs.P25 to P27, Process declaration under Ex.P34, Export declaration under Ex.P35, drawback declaration under Ex.P36 are presented by him and obtained shipping bill No.11463 pertaining to C.C.No.1 of 1999. In respect of the appellant in Crl.A.No.792 of 2003 (C.C.No.6/1999), P.W.10 obtained shipping bill, invoice, packing list under Exs.P31 to P33, declaration, drawback declaration, duty drawback declaration and shipping bill under Exs.P40 to 43, invoice, packing list, declaration, duty drawback declaration and general declaration under Exs.P44 to P48 and presented the same before E.T.C. in Customs Department. Then he obtained shipping bill Nos.11464 & 11465 and handed over the same to P.W.11-Ramaiah. P.W.11, who in turn received all the relevant documents for the cases pertaining to C.C.Nos.1, 2 and 6 of 1999, has deposed that he gets permission for examination of the leather bundles from A.O. in 'O' yard at Chennai Port and obtained an order for open examination. After appraising made by the appraiser, P.W.11 obtained an order for loading. He received the documents under Exs.P25 to P48 and handed over the same to the appellant in Crl.A.Nos.102 to 104 of 2003, who is the appraiser in Customs Department. The duty of the appellant in Crl.A.Nos.102 to 104 of 2003 personally inspects and appraises the cargo materials and made an endorsement "Let Export". Then only the product will be exported. But in this case, P.W.1-D.R.I. has received information from C.B.I. and thereafter, he conducted the enquiry and seized the material objects and sent to C.L.R.I. Adyar for verifying whether the leather samples are finished leather or unfinished leather and obtained a report under Exs.P3, P6 and P9 as the samples were "Not finished leather". Then he gave a complaint under Exs.P1, P4 and P7.
10.As per the evidence of P.W.10, P.W.11 and P.W.12, after following the procedure, P.W.11 obtained permission for examination of the leather bundles from A.O. in 'O' yard at Chennai Port and obtained an order for open examination. He handed over the same to the appellant/Ramkumar, is an Appraiser, who inspected the products. But he has not immediately issued "Let Export" order. Hence P.W.11 intimated the same to P.W.12. Then only P.W.12 has obtained an order of "Let Export" from the appellant/Ramkumar. Admittedly, P.W.11-Ramaiah was treated as hostile witness. Even though P.W.12 has not deposed about the payment and receipt of the amount other than legal remuneration, he was not treated as hostile witness. It is well settled principle of law, the evidence of hostile witness can be looked into. On perusal of the evidence of P.W.10, P.W.11 and P.W.12, it has proved that there is a conspiracy for passing an illegal order "Let Export" by the accused Ramkumar with exporters and clearing agents.
11.At this juncture, it is appropriate to consider whether the report given by P.W.2 is a substantial piece of evidence. The learned senior counsel appearing for the appellant/Ramkumar would submit that only the Ministry of Commerce is a competent person to give opinion in respect of the goods. But here, only C.L.R.I. has given opinion under Exs.P3, P6 & P9 in respect of the leather products (i.e.) M.O.1 to M.O.4. Therefore, the evidence of P.W.2 is not a substantial piece of evidence. Hence, it cannot be looked into. But the above argument does not hold good, because the export comes under the Ministry of Commerce. But Ministry of Commerce is not an institution to give opinion about the goods to be exported. Admittedly, the goods exported by the appellant in Crl.A.No.792 of 2003 are finished leather and it was described as "finished leather". C.L.R.I. is a competent authority to give opinion about the leather to be exported. Admittedly, P.W.2 along with one Chandrababu examined the material objects and gave a report under Exs.P3, P6 and P9. It is true, it is not a substantial piece of evidence. But here P.W.2 was subjected to cross-examination. Hence, report under Exs.P3, P6 and P9 are reliable.
12.Now it is appropriate to consider the evidence of D.W.1-Suresh Babu, who has given opinion about M.O.1 is a finished product and he has also given reason for the same. Opinion of D.W.1 is contra to the findings given by C.L.R.I., Adyar in Exs.P3, P6 and P9. While considering the cross-examination of D.W.1., he has fairly stated that he is aware of the public notice ETC-PN3/92 to 97. But he does not know the exact technical name of ETC. He further stated that if any one of the operations is not carried out as per public notice, it is also not a finished leather. Furthermore, he denied a suggestion, which was posed to him during the cross-examination that in order to get more job works from tanners he deposed false hood in support of the accused. In his chief-examination itself, D.W.1 stated that he has done a job work for exporters in C.C.No.1 of 1999. Considering the evidence of D.W.1, he is interested with exporters. Hence, his evidence has rightly not considered by the Special Court.
13.Even though the report given by P.W.2 is not a substantial evidence, a prima facie proved that the leather samples are not in accordance with the notice issued under ETC-PN3/92 to 97. So it is not a finished product. Admittedly, If the exporters have exported finished products, they are entitled to customs duty exemption and also duty drawback amount. To felicitate the exporters to get the amount, the appellant in Crl.A.Nos.102 to 104 of 2003 has given "Let Export" order.
14.Now it is appropriate to incorporate some portion of the evidence of P.W.11 and P.W.12, which is as follows:
Evidence of P.W.11-Ramaiah:
@ // // M$h; vjphp uhk;Fkhh; m';F te;jhh;/ te;J Vw;Wkjp MFk; bghUl;fis xt;bthU njhy; fk;bgdpapd; bghUl;fisa[k; jpwe;J ghh;j;jhh;/ mjw;F gpwF xd;Wk; ngrhky; kPz;Lk; ghh;g;gjhf vjphp uhk;Fkhh; Twptpl;L mth; miwf;F brd;W tpl;lhh;/ ehd; 1-2 kzp neuk; ghh;j;J tpl;L mth; tuhjjhy; ehd; btspapy; brd;W vd; Kjyhspaplk; ehd; jfty; brhd;ndd;/ Kjyhsp KgpDhh; uFkhd; Rkhh; 30 epkpl';fs; fHpj;J te;jhh;/ mthplk; Vw;Wkjp Mtz';fis ehd; bfhLj;Jtpl;nld;/ // // @ Evidence of P.W.12-Mobinoor Rahman:
" .. .. m/rh/11 uhikah Vw;Wkjp Mtz';fSld;. Vw;Wkjp bghUl;fis nrhjidf;fhf X ahh;Lf;F vLj;J brd;whh;/ mjd; gpwF rpwpJ neuk; fHpj;J uhikah vd;id nrhjid Koe;jjhft[k;. cj;jut[ nghLtjw;F fhyjhkjk; MFk; vd;W vd;dplk; nghdpy; brhd;dhh;/ M$h; vjphp njhy; bghUl;fis nrhjid bra;jjhft[k; Mdhy; cj;jut[ nghltpy;iy vd;Wk; ,uhikah vd;dplk; bjhiyngrpapy; brhd;dhh;/ ehd; 5 kzp mstpy; X ahh;Lf;F brd;W m';F uhk;Fkhiu ghh;j;njd;/ mjd; gpwF nkw;brhd;d 4 Vw;Wkjp Mtz';fisa[k; byl; vf;!;nghh;l; vd;W cj;jut[ nghl;L vd;dplk; bfhLj;jhh;/ uhk;Fkhh; vd;dplk; vJt[k; brhy;ytpy;iy/ gpy;fis cj;jut[ nghl;lt[ld; ehd; mthplkpUe;J nkw;fz;l Mtz';fis bgw;W te;njd;/ // // @ If two or more persons agree together to do something contrary to law or wrongful or harmful towards another person or to use unlawful means, in the carrying out of an object not otherwise unlawful, the persons who so agree to commit the crime of conspiracy." Here, the appellant/Ramkumar is the appraiser in Customs Department, who conspired with exporters giving "Let Export" order to help the exporters to enjoy the customs duty exemption and also duty drawback. He is fully aware that the leather is not a finished leather. So the Special Court has considered this aspect in a proper perspective and came to the correct conclusion that the appellant in Crl.A.Nos.102 to 104 of 2003 is guilty under Section 120B IPC and 136(1) of Customs Act and the appellants in Crl.A.No.792 of 2003 are guilty under Section 120B IPC and 420 r/w 511 IPC.
15.Admittedly, Exs.P40 to P42 are the declarations by the appellants in Crl.A.No.792/2003, wherein, it was stated as follows:
"Variety of finished leather, semichrome Coat furnishable upper finished leather We certify that above leather being exported falls under Serial No.(VI)(2)(K) of export trade control public Notice No.3-ETC(PN)92/97 dt.27th May 1992 and the same satisfies all the norms conditions as specified in the export trade control public notice."
It shows that the appellants had given false declarations, since the report of C.L.R.I. under Ex.P9 would reveal that the goods are not finished leathers. So the prosecution has proved that the appellants in Crl.A.No.792 of 2003 are guilty for the offence under Section 132 of Customs Act, since they given false declarations as if they exported finished leather to entitle the customs duty exemption as well as duty drawback.
16.Now it is appropriate to consider Section 135(1)(i) of Customs Act, which is as follows:
"135.Evasion of duty or prohibitions.--(1) Without prejudice to any action that may be taken under this Act, if any person--
(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or
(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,------
(i) in the case of an offence relating to,-----
(A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause(d), if the amount of drawback or exemption from duty exceeds thirty lakh of rupees;
with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than one year;
The prosecution has proved that the accused/appellants in Crl.A.No.792 of 2003 is guilty for the offence under Section 135(1)(i) of the Customs Act, since the appellants given a false declaration as if they exported a finished leather for obtaining customs duty exemption and also duty drawback. So the Special Court has correctly held that the appellants in Crl.A.No.792 of 2003 were guilty for the offence under Sections 132 and 135(1)(i) of Customs Act.
17.Admittedly, the appellants/exporters have knowingly well that the commodities are not finished products as contemplated under the public notice-ETC PN 3/92-97. They also submitted the declarations as if they exported finished leather for getting customs duty exemption as well as duty drawback amount. So they are guilty for the offence under Section 468 IPC and also 471 read with 468 IPC. Hence the Special Court considering this aspect has come to the correct conclusion that the prosecution has proved that A2/second appellant in Crl.A.No.792 of 2003 was guilty for the offence under Sections 468, 471 read with 468 IPC. Hence the Special Court is correct in convicting the appellant/A2 in Crl.A.No.792 of 2003 for the offence under Sections 120B IPC, 420 r/w 511, 468, 471 read with 468 IPC and Sections 132 and 135(1)(i) of Customs Act. Considering the gravity of the offence, the Special Court has sentenced A2/Shahul Hameed to undergo imprisonment till the raising of the Court and also imposed a fine of Rs.1,000/- for each counts. I do not find any reason warranting interference with the findings of the Special Court and hence, the order of conviction and sentence passed against the appellants in Crl.A.No.792 of 2003 are hereby confirmed.
18.The learned senior counsel appearing for the appellant/Ramkumar would take me through the document filed at the time of questioning under Section 313 Cr.P.C. and submitted that the appellant/Ramkumar was subjected to disciplinary proceedings and the same has been set aside by the Central Administrative Tribunal. While perusing the order dated 29.10.2009, passed by the Central Administrative Tribunal, in para-11, it was stated that without any discussion on the evidence of the witnesses and also documents relied by the witnesses coming to conclusion that the charges in Article I against the charged officer is proved, is not at all justified and such report of the enquiry officer is not at all based on any material. In such circumstances, I am of the considered view that the above order will not no way help the appellant herein.
19.The appellant/Ramkumar also relied upon another order passed by the Custom, Excise and Gold (Control) Appellate Tribunal, Chennai, in C/1251/98, C/1290/98 and C/1291/98, in para-5, it was stated as follows:
"5. .. .. As the goods tendered for export conforms to most of the criteria and the variations has been explained as minor and on account of differences between the C.L.R.I., deficiencies and requirements of the buyers, these cannot be considered to be deliberate or committed with intent to export prohibited goods out of the country. With regard to the deficiencies, the Appellants are only seeking permission to take the goods back to the units and to make good the deficiencies. There was also no deliberate attempt to conceal the deficiencies or to misdeclare the goods. The whole dispute has arisen only because of variations, inaccuracies in mechanical operations or the difference between experts and itraders with regard to grades. There was no effort to export prohibited goods. The Appellants have already incurred considerable financial loss on account of taking the goods back for reprocessing and the delay in carrying out their exports and realisation of the export value. .. .."
It is true, there is no appeal against the above order. So it is no way improve the case of the appellant.
20.Now this Court has to decide whether the learned Special Judge is correct in held that the appellant in Crl.A.Nos.102 to 104 of 2003 is guilty under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The learned senior counsel appearing for the appellant/Ramkumar would submit that there is no evidence that the appellant herein has demanded illegal gratification for passing "Let Export" order in the back side of the shipping bill. The confessional statement of P.W.12 under Ex.P50 is not an admissible evidence, even though P.W.20-learned Metropolitan Magistrate has examined before the Court.
21.At this juncture, it is appropriate to consider the provisions of Section 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988.
"13.Criminal misconduct by a public servant-
(1) A public servant is said to commit the offence of criminal misconduct, ........
(d)(ii)if he, -- by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
Admittedly, the appellant/Ramkumar is an Appraiser in Customs Department. So he is a public servant as defined in Section 2(c)(i) of P.C.Act, which is as follows:
"2(c)(i) "public servant" means,--any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty."
Now this Court has to decide whether he abuses his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
22.Mr.N.Chandrasekaran, the learned Special Public Prosecutor for C.B.I.cases would submit that the appellant as an appraiser, for the benefit of Exporters, passed an order for obtaining pecuniary advantage on customs duty exemption and also duty drawback amount. Hence he submitted that the ingredients of Section 13(1)(d) of P.C. Act has been proved by the prosecution beyond reasonable doubt and that has been considered by the learned Special Judge and rightly convicted the appellant/Ramkumar. So the conviction passed under Section 13(1)(d) of P.C. Act does not warrant any interference. He also relied upon the decision reported in A.I.R. 1963 SC 1116 (M.Narayanan Nambiar v. State of Kerala) and submitted that being a public servant, the appellant/Ramkumar abused his position and made an endorsement "Let Export" order. In the citation, it was held that every benefit obtained by a public servant for himself or for any other person by abusing his position as a public servant falls within the mischief of the said clause.
23. The learned Special Public Prosecutor for C.B.I. cases would rely upon the judgment reported in A.I.R. 1963 SC 1116 (M.Narayanan Nambiar v. State of Kerala), in which, it is held as follows:
"The juxtaposition of the word 'otherwise' with the words "corrupt or illegal means", and the dishonestly implicit in the word "abuse" indicate the necessity for a dishonest intention on the part of the public servant to bring him within the meaning of the clause."
24.Considering the citation along with the facts as already stated above, the appellant/Ramkumar as an Appraiser in the Customs Department and so he is a public servant. If the exporters exported the finished leathers, they are entitled to customs duty exemption and duty drawback. To enhance and promote the export, the Government has given customs duty exemption as well as duty drawback to the Exporters. As the appellant is an appraiser, after he gone through the material, even he is well known that the material to be exported is not a finished leather, issued "Let Export" Order. So the evidence of P.W.11 and P.W.12 would clinchingly prove the guilt of the accused beyond reasonable doubt that the appellant/Ramkumar abuses his position and made an order "Let Export". In such circumstances, I am of the view that the appellant/Ramkumar has abused his official position for the benefit of the exporters for pecuniary advantage on customs duty exemption and duty drawback. The learned Special Judge considering the oral evidence of P.W.11 and P.W.12, convicted the accused based on the materials available on record. Hence I do not find any reason warranting interference with the conviction passed by the learned Special Judge for the offence under Section 13(2) r/w 13(1)(d) of P.C.Act. I am of the view that the learned Special Judge has correct in held that the appellant/Ramkumar was found guilty for the offence under Section 13(2) r/w 13(1)(d) of P.C. Act.
25.Now this Court has to consider whether the Special Court has correct in convicting the appellant/Ramkumar for the offence under Section 7 of Prevention of Corruption Act. It is appropriate to incorporate Section 7 of P.C.Act, which is as follows:
"7.Public servant taking gratification other than legal remuneration in respect of an official act.-- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause(c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
26.On perusal of the record, P.W.11 and P.W.12 alone have deposed about the handing over of the relevant documents for obtaining "Let Export" order. But admittedly, P.W.11 and P.W.12 have not deposed that the appellant/Ramkumar herein has demanded money for passing "Let Export" order. It is pertinent to consider the evidence of P.W.20, who recorded the statement of P.W.12 under Section 164(1) Cr.P.C. was marked as Ex.P50, in his evidence, his candid admission is that he recorded the confession of the accused. But P.W.12 is not an accused before the Court and he was not cited as an accused in the charge sheet. So the statement of P.W.12 is only a statement of witness, since he was arrayed as witness in the charge sheet and also examined as witness. Furthermore, it is worthwhile to mention the argument of learned senior counsel for the appellant/Ramkumar that the confession of the co-accused cannot be relied against the co-accused. As per Section 30 of Evidence Act, the confession statement of the co-accused will be admissible or applicable, if the joint trial of both the accused has been ordered. Since P.W.12 is not an accused, I am of the view that the statement recorded by P.W.20 under Ex.P50 is only the statement of witness as per Section 164(5) Cr.P.C. and Ex.P50 is not a substantial piece of evidence and not reliable.
27.It is worthwhile to consider the following decisions relied upon by the learned senior counsel for the appellant/Ramkumar:
(i) AIR 1960 SCC 490 (State of Delhi v. Shri Ram Lohia), in which, it is held that the statements recorded under Section 164 Cr.P.C. are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness.
(ii)1972 (3) SCC 280 (Ram Kishan Singh v. Harmit Kaur and another), in which, it is held that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.
(iii)1998 (4) SCC 605 (George and others v. State of Kerala and another), in para-36, it was held that the statement of witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only to contradict or corroborate the maker of the statement.
(iv)1995(2) SCC 76 (Shivappa v. State of Karnataka), in which, it was held that the confession was not voluntary and could not be acted upon. In the above citation, the confession was recorded from the accused. But here, as already stated that P.W.12 is not arrayed as an accused. Hence, the above citation is not applicable to the facts of the present case.
(v) (2007) 12 SCC 230 (Aloke Nath Dutta and others v. State of West Bengal) in which, it was held that confession of the co-accused was admissible evidence only under Section 30 of Evidence Act. But as already stated that P.W.12 is not arrayed as an accused, even though statement has been recorded under Section 164(1) Cr.P.C. In such circumstances, the above citation is not applicable to the facts. But there is no quarrel over the proposition.
28.As catena of the judgment, it was well settled proposition of law that the statement of witness recorded under Section 164 Cr.P.C. is not a substantive evidence and it can be used only for corroborating and contradicting the deponent. When P.W.12 was in witness box, he neither treated as hostile nor Ex.P50 was confronted with him. P.W.20/Learned Metropolitan Magistrate, who recorded Ex.P50, alone has corroborated the same, hence Ex.P50 is not reliable. So barring the evidence of P.W.20 and Ex.P50, there is no evidence to prove that the appellant/Ramkumar herein has demanded or agreed to accept or attempted to obtain gratification, other than legal remuneration or a motive or reward for doing. So the learned Special Judge has not considered this aspect in a proper perspective. So I am of the view that the ingredients of Section 7 of P.C. Act has not been proved beyond reasonable doubt by the prosecution. So the benefit of doubt given in favour of the appellant and acquitted the appellant/Ramkumar from the charges levelled against him under Section 7 of P.C. Act. Hence he is not found guilty for the offence under Section 7 of P.C.Act. So the conviction and sentence for the offence under Section 7 of P.C.Act passed by the learned Special Judge against the appellant/Ramkumar is hereby set aside.
29.Let us consider Section 136(1) of Customs Act, which is as follows:
"136.Offences by officers of customs.-(1) If any officer of customs enters into or aquiesces in any agreement to do, abstains from doing, permits, conceals or [connives at any act or thing, whereby any fraudulent export is effected or] any duty of customs leviable on any goods, or any prohibition for the time being in force under this Act or any other law for the time being in force with respect to any goods is or may be evaded, he shall be punishable with imprisonment for a term which may extend to [three years], or with fine, or with both."
As per the evidence of P.W.2, Exs.P3, P6 and P9 and evidence of P.W.11 & P.W.12 have proved that the appellant/Ramkumar, who is an Appraiser in Customs Department, permits the unfinished leather samples as if they are finished leathers to export and help the exporters to avail the customs duty exemption. So the learned Special Judge is correct in finding that the appellant/Ramkumar is guilty for the offence under Section 136(1) of Customs Act and imposed only a fine of Rs.1000/-. Therefore, it does not warrant any interference and hence, it is hereby confirmed.
30.As narrated above, the Special Court after considering the oral and documentary evidence, has correctly held that the appellant in Crl.A.Nos.102 to 104 of 2003 is guilty for the offence under Sections 120B IPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act. So the order of conviction and sentence imposed by the Special Court in respect of Sections 120B IPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, does not warrant any interference and hence, they are hereby confirmed. But, however, the Special Court has erroneously convicted the appellant/Ramkumar for the offence under Section 7 of P.C. Act. So the appellant/Ramkumar is acquitted from the charge levelled against him for the offence under Section 7 of P.C. Act and therefore, it is hereby set aside.
31.In fine, Criminal appeal in Crl.A.No.792 of 2003 is dismissed confirming the order of conviction and sentence passed by the Special Court in C.C.No.6/1999.
Criminal Appeal Nos.102 to 104 of 2003 are partly allowed. The appellant/Ramkumar is acquitted from the charge levelled against him for the offence under Section 7 of Prevention of Corruption Act. Therefore, the fine amount of Rs.1,000/- paid by him is ordered to be refunded.
The order of conviction and sentence passed by the Special Court in C.C.Nos.6,1 and 2/1999 in respect of the offence under Sections 120B IPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, is hereby confirmed. The bail bond executed by the accused, if any, shall stand cancelled. The Special Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence.
19.01.2012 Index:Yes Internet:Yes kj R.MALA,J.
kj To
1.The Principal Special Court (C.B.I.Cases), Chennai.
2.The Special Public Prosecutor (for C.B.I. Cases) High Court, Madras.
3.The Record Keeper Criminal Section High Court, Madras.
Pre-delivery Judgment made in Crl.A.Nos.102 to 104 of 2003 & Crl.A.No.792 of 2003 19.01.2012