Cc No. 37/10, Cbi vs . Shiv Kumar Etc., Case Id ... on 4 March, 2015

[Cites 40, Cited by 0]

Delhi District Court

Cc No. 37/10, Cbi vs . Shiv Kumar Etc., Case Id ... on 4 March, 2015

             IN THE COURT OF SH AJAY KUMAR JAIN,
               SPECIAL JUDGE (PC ACT)/ CBI - 01,
          NEW DELHI DISTRICT, PATIALA HOUSE COURT,
                          NEW DELHI
In re :
CC No. 37/10
Case ID No. 02403R0058972003
RC No. DAI-1999-A-0026,CBI/ACB/ND
U/s 120-B IPC r/w 420, 468, 471,511 IPC and Section 13(2) r/w
13(1)(d) of PC Act, 1988

Central Bureau of Investigation

            Versus

1.    Shiv Kumar
      S/o Sh. Kulwant Rai
      R/o: H. No. 1080, New Housing Board Colony,
      Karnal by-pass, Karnal, Haryana.

2.    Zaki Anwar
      S/o Sh Shafiq Ahmed
      R/o 18/335, Lodhi Colony,
      New Delhi.

3.    Ram Harchandani
      S/o Sh C.K. Harchandani
      R/o H.No. 305, New Rajinder Nagar,
      New Delhi.

4.    Sudhir Nathani
      S/o Sh. R.L. Nathani
      R/o H.NO. G-12, Lajpat Nagar-III,
      New Delhi.

5.    Raman Jaiswal
      S/o Sh T.C. Jaiswal
      R/o B-5/267, Yamuna Vihar,
      Delhi-53

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No.
DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-1 of 121)
 Date on which charge sheet was filed                         : 25.02.2003
Date on which charge was framed                              : 31.07.2003
Date on which arguments concluded                            : 13.02.2015
Date on which judgment pronounced                            : 04.03.2015


APPEARANCES:-
Ms. Shampa Tikait, learned PP for CBI.
Sh. S.S. Dass, Advocate for accused Ram Harchandani,
Sudhir Nathani and Shiv Kumar
Sh. M.P. Singh, Advocate for accused Zaki Anwar
Accused Raman Jaiswal in person



JUDGMENT

1. Wisdom evolves not in finding fault, wrong and falsity but in search of truth.

2. It is a known fact that there is a rampant practice of claiming false duty drawback claims over exported goods, however this is a rare case which surfaced out and caught into the clutches of law.

3. Present case has been registered by CBI on the basis of source information to the fact that Sh. Joseph Kuok, Superintendent, ICD and Sh. Zaki Anwar while working as public servant entered into criminal conspiracy with accused Ram Harchandani, proprietor of M/s Romil International, Raman CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-2 of 121) Jaiswal, proprietor of PS International, Lalit Roy Dutta Clearing House Agent (CHA) for both these private concerns and Sh. Sudhir Nathani, by abusing their official position attempted to cheat the custom department to cause pecuniary gain to themselves and pecuniary loss to customs department, Govt of India to the tune of Rs. 58 lacs approximately by allowing the private concerns to export rags as premium garments under duty drawback scheme on the basis of forge documents. Further, M/s Romil International and PS International have filed false duty drawback against the consignment which is to be sent Dubai and Honkong and claimed Rs. 39 and 19 lacs respectively but the money was not paid to them.

4. Prosecution story in brief is that for claiming false duty drawback, in the month of December, 1998 accused Sudhir Nathani approached PW 4 Lalit Roy Dutta who stated to be working as a authorised agent of CHA of Firm Swati Freight Movers run by PW 5 Anil Kumar Gupta. It was alleged that Sh. Sudhir Nathani met Sh. Lalit Roy Dutta in the parking lot of ICD, Tuglaqabad where Sudhir Nathani handed over 8 shipping bills out of which four belonging to M/s Romil International and other four belonging to PS International for filing, however further processed bills were collected by Sh. Sudhir Nathani. On 16.12.98 goods relating to these aforesaid shipping bills (alleged to be old and used whereas claimed as premium garments in the submitted bills) purchased by accused Ram CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-3 of 121) Harchandani were brought at ICD, Tuglaqabad in Metador by PW 2 Khushi Ram and PW 3 Sh. Laxmi Chand accompanying PW 13 Arun Kumar Vij. After processing of the bills the said goods were inspected by accused Zaki Anwar (Custom Inspector), thereafter the Let export order was passed by accused Shiv Kumar, (Superintendent of Customs). The goods relating to these shipping bills were stuffed in three containers. The goods related to Romil International were stuffed in two separate containers, one was seized at Delhi and another was seized at Mumbai and the goods related to PS International was stuffed in single container.

5. However, on receiving some source information, DRI raided all the container and seized the old and used (inferior quality) goods, further during investigation found Zaki Anwar helped consignment clearance by taking bribe of Rs. 3.25 lacs through Vinod Gandotra, thereafter conducted proceedings under relevant section of Customs Act against accused Sh. Ram Harchandani, Sh. Sudhir Nathani, Sh. Raman Jaiswal, Sh. Zaki Anwar, Sh. Lalit Roy Dutta and Sh. Vinod Gandotra, however in these proceedings Sh. Shiv Kumar was not made an accused and in present case Sh. Lalit Roy Dutta and Sh. Vinod Gandotra were not arrested and being examined as prosecution witness as PW 4 and PW7 respectively. Police during investigation recorded the statement of witnesses and also took the handwriting samples of accused Sh. Ram Harchandani, Sh. Sudhir Nathani, Sh. Raman Jaiswal and PW 4 Sh. Lalit Roy Dutta . On conclusion CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-4 of 121) of investigation police chargesheeted accused Sh. Ram Harchandani, Sh. Sudhir Nathani, Sh. Raman Jaiswal, Sh. Sarit Vij, Sh. Shiv Kumar and Sh. Zaki Anwar for commission of offence u/s 120 B IPC r/w 420/468/471/511 IPC and section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. Accused Ram Harchandani is the proprietor of Romil International and accused Raman Jaiswal and Sarit Vij are the partners of PS International, however Sarit Vij didn't appear before this court on summons, therefore vide order dated 30.01.2004 was declared proclaimed offender.

6. During proceedings following charges were framed by this court vide order dated 21.07.2003 to which accused persons not pleaded guilty.

'Charge' "That during December 1998 you accused Shiv Kumar while functioning as Superintendent, Customs, at ICD Tughlakabad, New Delhi and Zaki Anwar while functioning as Inspector, Customs, at ICD Tughlakabad, New Delhi as public servants entered into a criminal conspiracy with Sudhir Nathani, Ram Harchandani of M/s Romil International and Raman Jaiswal and Sarit Vij, Partners of M/s PS International agreed to do by illegal means to wit obtained pecuniary advantage for Ram Harchandani, Proprietor of M/s Romil CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-5 of 121) International and Sarit Vij and Raman Jaiswal of M/s PS International to the extent of Rs. 58 lacs as well as for both of you, Shiv Kumar and Zaki Anwar to the extent of Rs. 3.25 lacs under the duty draw back scheme applicable to the exports of readymade garments, by passing four forged shipping bills of M/s Romil International bearing nos. 1040816, dated 15.12.98, 1040824 dated 15.12.98, 1040825 dated 15.12.98 and 1041024 dated 17.12.98 and four forged shipping bills of M/s PS International bearing nos.

1040874 dated 16.12.98, `040865 dated 16.12.98, 1040864 dated 16.12.98 and 1040866 dated 16.12.98 and to receive pecuniary advantage for both of you of Rs. 3.25 lacs as bribe for clearance of the said shipping bills and thereby committed offence punishable under Section 120B IPC r/w 13(2) and 13(1) (d) PC Act and Section 420 IPC r/w 468/471 IPC and within my cognizance.

Secondly, you both Shiv Kumar and Zaki Anwar abused your official position as public servants by clearing aforesaid eight shipping bills i.e. four of M/s PS International and four of M/s Romil CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-6 of 121) International, as per details given in Charge no. 1 and thereby obtained pecuniary advantage of Rs.

3.25 lacs and have thereby committed offence punishable under section 13(2) r/w 13(1) (d) of PC Act and within my cognizance.

Thirdly, you both Shiv Kumar and Zaki Anwar abused your official position as public servants cleared four forged shipping bills i.e. four of M/s PS International and four of Romil International, as per details given in Charge no. 1 and thereby attempted to obtain pecuniary advantage for M/s PS International and M/s Romil International to the extent of their claim of Rs. 39 lacs and 19 lacs respectively and thereby committed offence punishable under section 13(2) r/w 13 (1) (d) r/w 15 of PC Act, 1988.

Fourthly, you accused Ram Harchandani, Proprietor of M/s Romil International and you Raman Jaiswal, Sarit Vij Partners of M/s PS International in common intention with Sudhir Nathani as their active agent, attempted to cheat the Customs Department, of the Government of India by CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-7 of 121) submitting forged shipping bills as per details given in charge no. 1 and by intentionally placing rags instead of premium garments in containers no.

HDMU2249761 and HDMU2968235 so as to claim Rs. 58 lacs under the duty drawback scheme only applicable to readymade garments exporter and thereby committed offence punishable under section 420B/511 IPC r/w section 468/471 IPC and within my cognizance".

7. Prosecution for substantiating its case examined 40 witnesses. Accused persons in their statements u/s 313 Cr.P.C denied all the incriminating circumstances and took plea that they are falsely implicated and opted to lead defence evidence. During defence evidence, accused namely Shiv Kumar, Ram Harchandani, Sudhir Nathani and Zaki Anwar examined five defence witnesses. Accused Raman Jaiswal examined himself as DW6. Brief summary of statements of the witnesses of prosecution and defence, material exhibits and exhibited statements in brief recorded u/s 108 Customs Act:

Statements of witnesses in brief:

8. PW1 R.K. Dhir being Manager of PNB Branch at ICD, Tuglaqabd CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-8 of 121) deposed about opening of current account No. 1977 of Romil International and A/c no. 2109 of PS International.

9. PW2 Khushi Ram deposed that he had transported garments in packets from Sagar Pur to ICD Tuglaqabad accompanying Arun Kumar Vij in the year 1998 and took 34 trips for the same, however in cross examinations stated that he was not having any slip or permission to enter ICD Tuglaqabad, but vol. that it was not required as the owner was with them. PW3 Laxmi Chand also stated that he and Khushi Ram took the goods from Sagar Pur to ICD Tuglaqabad on 16.12.98 and Arun Kumar also accompanied them.

10. PW4 Lalit Roy Dutta deposed that he worked with Swati Freight Movers and CHA of this firm was Anil Kumar Gupta, and doing the job of Custom clearance. He also deposed that he knew Sudhir Nathani who told him that some consignments to be exported of firms M/s Romil International and M/s P.S International. Sudhir Nathani had given him the annexures relating to firm M/s Romil International and PS International and he submitted the annexures to CMC for generating checklist which was collected by Sudhir Nathani, however this witness had not identified accused Sudhir Nathani in the court and stated that because of passage of time he could not fully recollect this.

11. This witness was also shown shipping bill No.1040874, 1040865, 1040864, 1040866 of PS International alongwith annexures and other documents CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-9 of 121) belonging to PS Internationals and stated that these documents bears his signatures at various points.

12. This witness was also shown the shipping bill No. 1040816 of Romil International though stated that this bears the name of CHA Swati Freight Movers but not bear his signature mark. Further stated that shipping bills of PS International was also signed by him on 05.01.99 when called by DRI official. He further stated that he not processed the shipping bill of M/s P.S. International though the name of Swati Freight Mover is mentioned and he was working as its representative at relevant time. He further stated that he had seen the examination report of shipping bill no. 1040824, 1040825, 10401024 of M/s Romil International but his signatures were taken during proceedings by DRI officials on the documents relating to these bills. On being declared hostile, he denied that he intentionally not identifying Sudhir Nathani.

13. In cross examination, he stated that it is correct that it is not humanly possible for custom inspector to go and check every consignment, however also denied the suggestion that he has not processed the bill as he was not paid by the exporter. He further stated that he is one of the coaccused in DRI case No. 62/1/99 pending in the court of Ld. ACMM. In cross examination, lastly again stated that he had not signed any of the shipping bills or the annexures at any stage which are exhibited today.

14. However, he was again recalled for further examination on 07.02.2008 and CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-10 of 121) he deposed that he had given statement before DRI (Ex. PW4/X) and in cross examination stated that he had written the statement in his own writing and also stated that he had given the answers as to what is the correct factual position and as per his own knowledge. He also stated that the names mentioned in the answers had not been given by the DRI and also denied that statement Ex. PW4/X is manipulated or fabricated to implicate the accused persons.

15. PW5 Anil Kumar Gupta deposed that he is proprietor of M/s Swati Freight Movers and working as Custom House Agent, stated that he employed Mr. Lalit Roy Dutta on the instructions of his elder brother BD Dutta and he was signing authority for cargo custom clearance and his firm had not processed any of the shipping bills of Raman Jaiswal, Ram Harchandani and Sarit Vij and DRI people also inquired about those bills from him and was taken for identifying the containers of M/s Swati Freight mover but he do not remember the name of the party. He further stated that seal of that container was broken and thereafter contents of that container/packages were examined, in which useless garments of inferior quality were found. The garments were top, shirts and blouses and quality was not upto the mark and he signed those proceedings conducted by DRI and also identified his signatures on Ex. PW5/A. He further stated that no independent witness was present at that time except DRI persons.

16. In cross examination, he stated that the Ex. PW5/A was written by some CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-11 of 121) DRI official and it was told to him by DRI people that articles which they were checking were made for export however there were 56 persons but he cannot say whether Raman Jaiswal or any other exporter was present and DRI people did not summon Raman Jaiswal or any other exporter. It is correct that after breaking the seal of the container the broken seal was not handed over to anyone and after proceedings container was again resealed in his presence and seal was cut by DRI officials themselves and the container was sealed with wire seal therefore its impression could not have been taken on the original of Ex. PW5/A. He further stated that DRI officials were preparing inventory of each box but he had signed only Ex. PW5/A, however, denied suggestion that no proceedings were conducted in his presence. He further stated that he cannot say anything about the size and measurement of the package and further have no specialty in pricing of the goods.

17. On being recalled for further examination on 25.03.2008, he stated that he had made two statements (Ex. PW24/B & Ex. PW20/C) in his own handwriting and both the statements were given voluntarily.

18. PW6 Sh Sameer Issar stated that his firm M/s Shipwell Cargo Services Ltd. situated at 206A, Container Corporation Building ICD Tuglaqabad running since 1998 and Mr. Umesh Sharma was his employee, and his firm indulged in clearance of work. However, denied to have processed the shipping bill No. 1033411, 1033403, 1033402, 1033401 of M/s Romil CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-12 of 121) International.

19. PW7 Vinod Gandotra deposed that he know Zaki Anwar and met him through one Rajesh Aggarwal, and also identified accused Sudhir Nathani present in court and stated that he met him in the court of Sh V.K. Maheshwari, Ld. ACMM in DRI case where the case against himself and Sudhir Nathani is pending and also stated that no work is entrusted by Sudhir Nathani to him. On being declared hostile, he stated that he met Zaki Anwar number of times in Excise officer, Sector4 Faridabad (Vol. to met him only once), and further denied suggestion of meeting Zaki Anwar at ICD Tuglaqabad and also denied of delivering of Rs. 3.25 lacs to Zaki Anwar. However, in cross examination stated that DRI officials had obtained his signatures on blank paper, and also stated that he was forced to write some documents on which he was also forged to sign and he retracted the same in the court of Ld. ACMM.

20. PW8 P.N. Sharma stated that on 29.12.98 he searched the container no. 2072887 of PS International and the container was stuffed by PS International and 4 shipping bills 1040874, 1040864 to 1040866 all dated 16.12.98 were filed declaring the contents as Rayon/ ladies blouses. The containers were sealed with customs seal and Hyundai seal and on search the goods recovered not found tallied with the shipping bill and after search the goods were repacked in the container and panchnama was also prepared (Ex. PW5/A).

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-13 of 121)

21. In cross examination stated that no written direction was given to him to join investigation and had not taken any independent witness to join raiding party and further do not know whether any permission was given from any officer of ICD Tuglaqabad to see or verify the contents of the containers and also do not remember the description or fascimile of the seals affixed on the containers. He further stated that he had not recorded the statement of labourer who broke open the seals and DRI do not maintain and seal register. He further stated that he had not prepared the inventory of all boxes and also denied suggestion that prepared Ex. PW5/A at DRI office at the instance of Sr. officers of DRI. He further stated that 200 cartons were checked by DRI and denied suggestion that rest of the 195 cartons kept in said container were having the best quality of the garments and that was the reason why he had not taken the samples from them. In further cross examination he stated that the goods enter for export were not the prohibited goods. He further stated that DRI got the information i.e, goods that are to be exported were of inferior quality and pricing was managed to claim more drawback that is why they intervened. He further stated that he had not called any partner of PS International at the time of preparation of punchanama but called the custom house clearing agent.

22. PW9 Arvind Singh Sikarwal stated that he was officer in PNB ICD in 1998 and R.K. Dheer was working as Manager, exhibited account opening CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-14 of 121) form of account no. 2109 of PS International (Ex. PW1/B), and statement of accounts. He also exhibited the current account no. 1977 of Romil International and stated that scroll in this account has been transferred electronically from custom department to their bank and shipping bill No. 1033401 from 1,48,473/, Shipping Bill No. 1033403 of Rs. 7,61,400/, shipping bill no. 1033411 of Rs. 18,473/ and shipping bill No. 1033402 of Rs. 18,473/ were transferred from customs department to their bank on 30.09.98 , against these credits they are withdrawn in the name of Ram Harchandani, Sheela Harchandani. He further stated that vide seizure memo Ex. PW9/N he had given the documents of M/sRomil International having current account no.1977 and current A/c 2109 to Sh A.K. Singh Inspector CBI.

23. PW10 Ajay Sardana stated that he was posted as inspector Export, export shed at Inland container Depot Tuglaqabad and explained procedure regarding export of duty drawback, shipping bills under drawback scheme 199899. He stated that at export shed he was receiving details of exports goods in annexure C accompanied with invoice, working list, GR form and he has to enter the details of annexure C in computer which was called as goods arrival stage in the shed, thereafter, these documents were handed over by shed sepoy or CHA to Superintendent. Superintendent first of all make the attendance of all inspectors present in shed, then marking of packages as well as names of inspector were generated in the system for CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-15 of 121) examination. After examination, the goods as per instructions, Inspector feed in his examination report in the computer itself and manually write on the back of annexure C for stuffing container. CONCOR was stuffing the container and they used to issue the stuffing slip. Examination report was signed by inspector who examines the package and Let export order was signed by the Superintendent on examination report after sealing of containers. He further identified the signature/ initials of Zaki Anwar and Shiv Kumar Superintendent over the examination report of Shipping bill No. 1040824, 1040825, 1041024 of Romil International and also identified the signatures of Zaki Anwar and Shiv Kumar on examination report of shipping bill No. 1040874, 1040865, 1040864, 1040866 of PS International.

24. He also identified the signatures of Mr. M.S Bhatia Superintendent over the examination report pertaining to shipping bill No. 1033411, 1033403, 1033402, 1033401 of Romil International.

25. In cross examination, he stated that there is no direction to Superintendent who passes the 'Let Export order' to see the signature of CHA or exporter and it is also practically not possible to check the individual document as well as container, and sometime due to work load it is not possible even to examine the goods as well documents. He further stated that first and front page of annexure C can be filled by anybody including CHA or exporter and that page does not contain material information. However, on the back CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-16 of 121) of annexure C now Ex. PW10/DA bears the signatures of CHA at point A. he further stated that annexure C has to be filled in fresh before the said documents were given to the customs for processing and if it was in the photostat then custom does not entertain the same and document annexure C has nothing to do with receipt of duty drawback. He further stated that as far annexure B is concerned he has no knowledge as dealt by different section. He further stated that as per practice on each annexure C, CHA /authorized representative, inspector and Superintendent put their signature/ initial and also issue seal number.

26. In further cross examination on behalf of accused Zaki Anwar he stated Zaki Anwar had dual charge and his work load was very heavy and it is not mandatory and necessary for an exporter to engage hire service of CHA for export and exporter can perform himself all such duties which CHA is required to perform. He further stated it is correct that if the signature of exporter/ CHA is not there on the examination report but then it does not amount to illegality.

27. He further stated in cross examination on behalf of accused Raman Jaiswal that he do not know that shipping bill were required to be produced 7 day in advance before being inspected by the inspector. He further stated that he do not know that samples were also required to be produced with the bills at Central Registration Unit.

28. PW11 V. Bhatnagar stated that he was posted as Technical officer in Tax CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-17 of 121) Research Unit of Central Board of Excise and Customs and in July 2000 was working as a Deputy Commissioner in Export Shed, ICD Tuglaqabad. He further stated that he is aware about the duty drawback scheme and ready made garments were one of the items covered under duty drawback scheme and duty drawback scheme in respect of export of readymade garments was 18% on free of board value subject to limitation of certain specified amounts. He stated that he is well conversant with the procedure of export of readymade garments and also claims of drawback at ICD Tuglaqabad. At first, the exporter have to approach CMC section alongwith the documents and after entry in computer checklist will be generated, the checklist will be handed over to CHA for verification then thereafter, the shipping bill is generated by CMC which is taken to DOS (Deputy office Superintendent) to check the alert in respect of said exporter then exporter approaches container corporation for issuing CRN slip. Thereafter, the exporter enters the export shed and contact concerned inspector. The concerned inspector makes necessary entries in computer system and computer system generates the name of the officer who will carry out the inspection of the goods. The computer system also generates the number of packages which are to be inspected and in case drawback is more than one lakh, then inspection is also required to be carries through Superintendent. After inspection, the inspector endorses his inspection report in the back side to form annexure C. the inspector also enters the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-18 of 121) inspection report on the computer system. Thereafter all the documents are put to the superintendent for giving 'Let export order'. After 'Let export order', CHA approaches container corporation of India for stuffing the export goods in the container then approaches concerned inspector for issuing one time seal bearing seal number and that seal number was also fed in the computer. Systems also generate EGM number of particular container. Once EGM number is generated shipping bills are transferred online to Superintendent drawback and Superintendent drawback if drawback amount is more than one lakh is transferred to AC Drawback for sanctioning the same and after sanctioning scroll for generated and then drawback amount is transferred to the exporter's bank then exporter can withdraw the drawback amount from his bank account.

29. In cross examination, he stated that CMC is different agency which manages computer and it is not under control of custom office. Further stated that he is not aware that drawback was claimed in instant case or not. He further stated that packing list, invoice, SDF form are to be signed by exporter however annexure B and C can be signed either by exporter or CHA. However, form C and B can be filled up by any person other than exporter but responsibility with exporter or CHA who is signing the same. He further stated that he has no personal knowledge of the instant case.

30. PW12 Rajesh Aggarwal stated that he knew Raman Jaiswal being childhood friend and he had given the premises to Raman Jaiswal for sale CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-19 of 121) of garments at C37, Madhu Vihar, Delhi and Raman Jaiswal and Sarit Vij were sitting in the said firm and Raman Jaiswal had his factory of leather jackets at Tuglaqabad.

31. PW13 Arun Kumar Vij stated he is Proprietor of Ambey Garments doing business of export surplus and his brother Ajay Kumar Vij is also attending his shop and one Ram Harchandani had purchased some export surplus but unable to identify Ram Harchandani in court. On being declared hostile in cross examination he stated that it is correct that Ram Harchandani and along with his wife visited his shop for export of surplus garments and had purchased 8000 ladies top@ Rs. 12/ per piece and bill was issued in the name of Romil International and DRI officer also interrogated him in this respect. He also stated it is correct that Ram Harchadani might have again purchased 11,300 pieces of ladies top again @ Rs. 12/ per piece and also send 50,000/ more ready made export quality garments through his son for packing which might have been purchased from somewhere else. He further stated that he used to make arrangement for transport from Rao Transport, Dabri More.

32. PW14 Satish Badola stated that he was called by DRI officer on 26.05.99 to witness the sample containing ladies top, shirts which were not new and of second quality. In cross examination he had stated that he had not received any notice from DRI to join investigation and have no personal knowledge about the recovery of the case property, but denied suggestion CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-20 of 121) that no envelope was opened in his presence and no property was shown to him.

33. PW15 Kanchan Sanyal Manager Account in Sea Bridge Maritime Agency stated, this is shipping line of Hundai Merchant Marine and doing business of allotment of container, and container no. HDMU 2072887 was allotted to Romil International for Hongkong, container no. HDMU 2249761 and 2968235 was allotted to M/s Swati Freight, by one Gopal Dixit whose signature and handwriting she can identify. In cross examination stated that it is correct no container was booked in the name of PS International, further stated that shipping bills nos are not mentioned in the relevant columns. This witness also stated that container was having only one entry door and no knowledge with regard to number of latches.

34. PW16 B.K. Mishra granted sanction for prosecution of Superintendent Shiv Kumar being competent as Commissioner of Central Excise to remove Superintendent Customs.

35. PW 17 Kaushal Shrivastav granted sanction for prosecution of inspector Zaki Anwar being competent as Addl. Commissioner of Central Excise to remove Superintendent Customs.

36. PW 18 K.P. Singh exhibited the export import code file of M/s Romil International.

37. PW19 Shri R. Sambandham, Chief Manager, State Bank of Mysoor, Nehru place stated that vide seizure memo Ex. PW19/A he handed over CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-21 of 121) the documents relating to account no. 1465 of Romil International.

38. PW 20 Virender Kumar Senior Intelligence Officer, DRI Delhi Zonal Unit, CGO Complex stated that a case against M/s Romil International was booked during 1998 and he recorded the statement of persons u/s 108 of Customs Act, namely Sudhir Nathani on 22.12.98 , Anil Kumar Gupta on 07.01.99, further statement of Sudhir Nathani on 24.05.99 also on 31.05.99, Ram Harchandani on 31.05.99. He also identified the signature of Amitabh Kumar over the original statement of Zaki Anwar dated 12.03.99. He also stated that he recorded the statement of Ram Harchandani on 11.03.2000, Sudhir Nathani on 09.02.2000, Vinod Gandotra on 17.03.2000 and 18.03.2000, statement of Lalit Roy Dutta, statement of Arun Kumar Vij dated 09.12.99, statement of Sudhir Nathani dated 31.05.99, statement of Ram Harchandani dated 22.12.98, statement of Sudhir Nathani dated 24.05.99, statement of Lalit Roy Dutta dated 06.01.99, statement of Shiv Kumar dated 16.03.99.

39. In cross examination, denied suggestions that he extracted statement of Lalit Roy Dutta and Vinod Gandotra by pressure, He also stated that it is correct that Sudhir Nathani was neither Proprietor or partner of Romil International, however stated contents of statement recorded u/s 108 Customs Act were correct. He also denied suggestion that they have tortured, induced or coerced Ram Harchandani, Sudhir Nathani, Vinod Gandotra, Lalit Roy Dutta, Arun Kumar Vij to write the dictated statement CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-22 of 121) prepared by officers of DRI.

40. PW21 Kapil Vohra examined the container of M/s Romil International in presence of Ram Harchandani and Zaki Anwar and on examination stated that garments were found torned and used garments and some are soiled, torned and some garments were having foreign labels of Pakistan and Switzerland etc. He also found the quantity less than what is declared on shipping bills and prepared panchnama Ex. PW21/A. This witness exhibited the samples and was also shown the report of Mukesh Gaur (Ex.PW21/E) which shows that 8th sample were missing. In cross examination stated that he do not remember who called independent witnesses and also do not know the seal number however stated that not taken any written permission from CONCOR for examining the container, however stated seal was cut by the employee of CONCOR but he do not remember the name and designation he also stated that he did not took any permission from Custom officer, however Zaki Anwar was present and DRI has no seal movement register at the relevant time.

41. PW22 Avdesh Kumar Singh Addl. Commissioner stated that in 1999 he was working as Dy. Director DRI, Nepal Division, New Delhi. He further stated that he recorded the statement of Lalit Roy Dutta on 05.01.99, 07.01.99 and also on Zaki Anwar on 06.01.99, 19.04.99, and of Shiv Kumar dated 03.02.99, and of Arun Kumar Vij on 11.02.99, and of Ajay Kumar Vij on 12.02.99 and of Sudhir Nathani on 06.03.99, and of Vinod Gandotra CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-23 of 121) on 13.03.99.

42. In cross examination by Zaki Anwar he stated that raid was conducted at the house of Vinod Gandotra in the morning and Vinod Gandotra was brought to office but again stated that he was summoned to appear at DRI office. He stated that he do not remember whether Zaki Anwar was present while recording statement of Vinod Gandotra. In cross examination he denied that he obtained the signatures of Vinod Gandotra on blank papers and it is wrong to suggest that he was force to write some documents and also denied suggestion that Lalit Roy Dutta not made any statement u/s 108 Customs Act. He further stated that it is correct that Ex.PW4/E3 (running into 9 pages) are required for filling the shipping bill and can be filled by any person without authorization. In reply Ex. PW 20/DX and Ex.PW20/DY he stated that mere filling of these documents does not constitute any offence. The same is the answer with respect to Ex. PW22/DZ, DZ1, DZ3, DZ4 and DZ5. Similar is answer with regard to Romil International Ex. PW22/DZ6, DZ7, DZ8, DZ9 to DZ16. He further stated he do not know whether Sudhir Nathani also retracted statement (Ex. PW22/X) or not. He further stated Arun Kumar Vij identified the photographs of Ram Harchandani during proceedings.

43. PW23 Amitabh Kumar stated that he was working as Dy. Director in 1998 and statement of Ram Harchandani dated 22.12.98, (Ex.PW23/A, earlier mark D), Shiv Kumar Ex.PW23/B, Zaki Anwar Ex. PW23/C, CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-24 of 121) mark B were recorded in his pressure. In cross examination he denied suggestion that Ex. PW23/C that is statement of Zaki Anwar is not the correct statement.

44. PW24 M.K. Sinha stated that at relevant time he was posted as Deputy Director Nepal Division, DRI and he had recorded the statement of Anil Kumar Gupta (Ex. PW24/B), Raman Jaiswal dated 06.01.99 (Ex. PW24/C), also shown statement of Raman Jaiswal dated 07.01.99 (Ex. PW22/DY). He further stated that Raman Jaiswal has not admitted in his statement of having filed any document before the custom department.

45. PW25 Avnish Kumar stated that on 16.11.2000 working as Sr. Assistant at Container Corporation and witnessed the observation memo prepared by CBI on 16.11.2000 (Ex. PW25/A).

46. PW26 Sh Rajesh R. Singh examined the container at Mumbai and prepared the punchanama and panchnama was exhibited as Ex. PW24/A and in cross examination denied the suggestion that container was already tampered.

47. PW27 Sh L. Nato Singh Assistant Government Examiner examined the questioned handwritings and filed its report. In cross examination, stated that it is correct that Q52, Q68, Q84 and Q98 are photocopies and he did not ask originals of the same.

48. PW28 Manoj Kumar Sharma joined investigation while specimen writing of Ram Harchandani was taken.

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-25 of 121)

49. PW29 Chattar Singh also called by CBI for witnessing specimen signatures taken by CBI of accused.

50. PW30 Ganga Saran is a licencing Assistant exhibited the file seized from foreign trade office.

51. PW31 Subhash Chander stated that he pointed out the container location of the container in ICD Tuglaqabad.

52. PW32 V.K. Agarwal produced the specimen signature and writing of L.R. Dutta from Central Bank.

53. PW33 Sanjeev Kumar Sharma in whose presence the specimen handwriting of Sudhir Nathani was taken.

54. PW34 Satish Chand Jain given the opinion of the quality of the clothes seized in Mumbai. However, in cross examination stated that he was not expert.

55. PW35 Jai Ram in his presence specimen handwriting and signature of Sudhir Nathani was taken.

56. PW36 Shiv Kumar Vashisht handed over one registration cum membership registration file of Romil International from AEPC.

57. PW37 Inspector K.L.Mosis collected the handwriting expert opinion from GEQD Shimla.

58. PW38 Addl. SP U.K. Goswami stated that under the instructions of SP visited the office of Commissioner Central Excise V.K. Sharma and Addl. Commissioner Kaushal Srivastava for discussion where the files for CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-26 of 121) sanction were pending.

59. PW39 Shashi Kant Babu is witness to the observation cum inspection memo Ex. PW39/A.

60. PW40 Inspector Anil Kumar Singh (IO) deposed that during investigation he found involvement of the present accused persons, obtained sanctions for public servants, prepared observation memos over the containers seized by the DRI, collected relevant account documents of Romil International and PS International, obtained handwriting opinion, recorded the statement of LR Dutta u/s 164 Cr.P.C (Ex. PW4/J). In cross examination stated that he has not opened the container, further stated that he has no knowledge whether accused Ram Harchandani and Sudhir Nathani were physically tortured by DRI officials.

61. DW1 Rajesh Kumar Nathani brother of Sudhir Nathani deposed that when he alongwith his brother Sudhir Nathani and cousins Ram Harchandani when coming out of the court on 06.03.99, the DRI officials forcefully took accused Sudhir Nathani and Ram Harchandani from the Patiala House court complex. However, in cross examination stated that he do not know if on complained court had made any observation in writing to this effect.

62. DW2 Raj Kumar record clerk of RML hospital exhibited the MLC's mark DW2/A & B of the accused persons.

63. DW3 Rishi Kumar Dubey was dropped by the defence counsel for CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-27 of 121) accused Shiv Kumar.

64. DW4 Gurpal Singh Bedi stated that in mid December when he was with Sudhir Nathani, two persons came and requested Mr. Sudhir Nathani to fill up few printed pages and on the dictation of said person, Sudhir Nathani filled up those pages.

65. DW5 S.N. Ojha, Deputy Commissioner have stated that the citizen charter mark (mark PW40/X) was required to be strictly followed by custom officials. However, in cross examination stated that no government servant who is over burdened for certain reasons get liberty to do illegal acts or to perform negligently.

66. DW6 accused Raman Jaiswal in his testimony deposed that he was made to write his statement in the month of January 99 by DRI officials and he was arrested in this case and sent to J/c for two months. In cross examination stated that he cannot tell how many times he was put to the questions by DRI officials and also do not know how many of his statements were recorded. Further, stated he was not called in DRI office after 06.01.99 and on the next day he was produced in the court and was sent to J/c and he has not told the court about the forcible recording of his statement by DRI officials. Further, admitted his bank accounts of P.S. International at PNB, ICD Tuglaqabad and also admitted his specimen handwritings but denied his handwriting portions in various annexures. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-28 of 121) Material exhibits:

67. Ex.PW1/A, current account opening form of account no. 1977 of M/s Romil International at PNB Branch, ICD Tuglaqabad, New Delhi. Ex. PW1/A1 is the letter dated 10.08.1998 written to Chief Manager, PNB, ICD Tuglaqabad by the Manager, State Bank of Mysoor, Nehru Place attesting the signature of accused Ram Harchandani and certifying therein that M/s Romil International is maintaining current account number 1465 with State Bank of Mysoor since 31.07.1998 and having no objection if opened current account with PNB, ICD Tuglaqabad for drawback purpose only.

68. Mark X is the importer exporter code (IEC) issued by Ministry of Commerce, Director General of Foreign Trade to M/s Romil International dated 05.08.1998.

69. Ex. PW1/A2 is the account statement of Romil International of account No. 1977 from 11.08.98 to 31.03.99 issued by PNB Branch Extension counter, Khanpur, New Delhi showing receiving of drawback payments from custom department for shipping bill NO. 1033401, 1033403, 1033411, 1033402.

70. Ex.PW1/B is the account opening form of account No. 2109 M/s PS International through partners Sarit Viz and Raman Jaiswal at PNB Branch, ICD, Tuglaqabad, New Delhi.

71. Ex.PW1/B2 is the letter issued by Oriental Bank of Commerce to PNB CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-29 of 121) ICD Tuglaqabad certifying that M/s PS International is maintaining current account no. 3190 since 1992 and intends to open a current account at PNB ICD Tuglaqabad for specific purpose of getting duty drawback and they have no objection in their opening current account for this specific purpose.

72. Ex.PW1/B3 is the statement of accounts of M/s PS. International from 01.07.1997 to 11.08.1999 (showing no drawback payment).

73. Ex. PW4/A is photocopy of shipping bill (original seen in file of DRI Vs. M/s P.S International, CC No. 62/1/99, pending in the court of Ld. ACMM Patiala House) for duty drawback bearing No. 1040874/16 Dec.98, CHA R41/98 Swati Freight Movers, PRN dt. 16.12.98 at 17.29 pm of P.S. International to be sent to Delta Com. Hong Kong, port of loading ICD Tuglaqabad, port of discharge Hong Kong.

74. Ex.PW4/A1 is the inspection report issued by accused Zaki Anwar, Inspector on 16.12.98 reporting examined the consignment of shipping bill No. 1040874 of PS International and on the basis of which Let Export order was issued by accused Shiv Kumar on 16.12.98. The goods were found to be contained in container no. HDMU 2072887.

75. Ex.PW4/A2 is second page of shipping bill for duty drawback bearing No. 1040874/16 Dec98 CHA.

76. Ex.PW4/A3 is the copy of check list for duty drawback of PS International, CHA Swati Freight Movers prepared on 16.12.98 at 12.30 CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-30 of 121) pm (original seen from the court file of Ld. ACMM, Patiala House).

77. Ex.PW4/B is copy of check list for duty drawback of M/s PS International dated 16.12.98 at 12.15 pm.

78. Ex. PW4/B1 & B2 is also the check list of PS International mentioning the name of CHA Swati Freight Movers.

79. Ex. PW4/B3 is declaration form for export of goods under claim for drawback (annexure B) bearing shipping bill No. 1040874 having stamp of Swati Freight Movers (CHA) of PS International, also showing consignee name Delta Com Hong Kong, further showing the name of bank of OBC, Nehru Place. This exhibit goes upto 9 pages from 959 to 967. Annexure C are the details to be entered by examining officers when export goods are brought for examination bearing shipping bill No. 1040874/16 Dec98 also containing the container no. HDMU 2072887 having signature of CHA/exporter and that of inspector on page 964. Appendix III is drawback declaration of PS International having two pages.

80. Ex.PW4/C is the examination report of shipping bill No. 1040865 of M/s PS International bearing the signature of accused Inspector Zaki Anwar certifying the consignment examined found to be in accordance with shipping bill No. 1040865 and on the basis of which Let Export order was issued by Superintendent accused Shiv Kumar regarding container No. HDMU 2072887.

81. Ex.PW4/C1 is copy of the shipping bill No. 1040865 (original seen in CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-31 of 121) court file of Ld. ACMM, Patiala House).

82. Ex.PW4/C2 is the check list of shipping bill of P.S. International CHA Swati Freight Movers.

83. Ex.PW4/C3 is declaration form for export of goods under claim for drawback (annexure B) of shipping bill No. 1040865 of PS International. It also contains annexure C which are the details to be entered by examining officers when goods are brought for examination. Appendix III is drawback declaration of this bill.

84. Ex.PW4/D is the examination report of shipping Bill NO. 1040864 of M/s PS International and this examination report is prepared by accused Zaki Anwar on 16.12.98 and Let export order was issued by accused Shiv Kumar, Superintendent.

85. Ex.PW4/D1 is the shipping bill No. 1040864 dated 16.12.98 of M/s PS International mentioning the name of M/s Swati Freight Movers as CHA. Ex.PW4/D2 is annexure B (declaration form for export of goods under claim for drawback) bill No. 1040864. AnnexureC of this shipping bill No. 1040864 regarding the details to be entered by examination officers when the export of goods before them for examination. Appendix III (drawback declaration) shipping bill.

86. Ex.PW4/D3 is the invoice dated 10.12.98 of PS International to be sent to Delta Com, Hong Kong through ICD, TKD containing rayon/ cotton ready made garments, ladies blouses.

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-32 of 121)

87. Ex. PW4/E is the examination report of shipping bill No. 1040866 dated 16.12.98 of PS International examined by inspector accused Zaki Anwar on the basis of which Let Export order issued by accused Shiv Kumar Superintendent.

88. Ex.PW4/E1 is the shipping bills for duty drawback bearing No. 1040866. Ex.PW4/E2 is check list in 3 pages of aforesaid shipping bill of M/s PS International mentioning the name of CHA M/s Swati freight Movers. Ex. PW4/E3 is (annexure B) declaration form for export of goods under claim for drawback for shipping bill No. 1040866. AnnexureC details to be entered by examining officer when exports are brought in examination. Appendix III drawback declaration of PS International. Ex.PW4/E4 is the invoice dated 10.12.98 of PS International to consignee M/s Delta Com for rayon/ cotton garments, ladies blouses.

89. Ex.PW4/F is the examination report of shipping bill No. 1040825 of Romil International of container no. HDMU 2968235 examined by accused Inspector Zaki Anwar and Let Export order passed by accused Superintendent Shiv Kumar. Ex. PW4/F1 is custom copy of shipping bill No. 1040825 of M/s Romil International showing name of CHA M/s Swati Freight Movers. Ex.PW4/F2 annexureC relating to details to be entered by examining officer when export goods are brought for examination. Annexure B declaration form for export of goods order claim for CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-33 of 121) drawback of shipping bill no. 1040825. Ex.PW4/F3 is the check list for duty drawback for this bill. Ex.PW4/F4 is invoice of Romil International dated 10.12.98 to be sent to AlGhandheer, Dubai of ready made garments, ladies shirts.

90. Ex.PW4/G is the examination report of shipping bill no. 1041024 dated 17.12.98 of Romil International regarding goods examined by accused Zaki Anwar inspector, customs in accordance with shipping bill, invoice and packing list and Let Export order issued by accused Shiv Kumar on 18.12.98. Ex.PW4/G1 is Shipping bill No. 1041024. Ex.PW4/G2 contains annexureC (details to be entered by examining officer when goods were brought for examination). AnnexureB declaration form for export of goods under claim for drawback of this shipping bill No. 1041024. Appendix IV blank over the shipping bill No. 10410214 and the name of exporter. Ex.PW4/G3 is the invoice of Romil International of goods to be sent to AlGandheer, Dubai of goods i.e, readymade garments ladies shirts.

91. Ex. PW10/A is the examination report of custom shipping bill no. 1040824 dated 15.12.98 of Romil international. Inspector Zakir Anwar examined the consignment and found to be in accordance with shipping bill, invoice and packing list, thereafter let export order was issued by accused Shiv Kumar on 16.12.98.

92. Ex. PW10/D is examination report of custom shipping bill no. 10333411 CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-34 of 121) dated 23.09.98 of Romil International. Ex. PW10/E is the examination report of shipping bill no. 1033403 dated 23.09.98 of Romil International.

93. Ex.PW4/H1 to H27 is the specimen handwriting of PW4 Lalit Roy Dutta. Ex.PW4/J is the order dated 20.01.03 of Ld. Metropolitan Magistrate refusing to record the statement of PW4 as the matter is quite old.

94. Ex.PW5/A is the panchnama dated 29.12.98 prepared by DRI relating to container no. 2072887. Ex.PW8/A is a paper slip taken out from the sealed pulanda.

95. Ex.PW9/A is the credit voucher of Rs. 5000/ dated 11.08.98 in the name of Romil International passed by PW 9 Arvind Singh Sikerwal, Manager PNB, ICD Tuglaqabad Branch. Ex.PW9/B is a debit voucher of Rs. 10,31,070/ dated 06.10.98 of current A/c no. 1977 in the name of Romil International for issuing pay orders. Ex.PW9/C and Ex.PW9/D are also the debit vouchers issued from current a/c no. 1977 by PW 9. Ex.PW9/E and Ex.PW9/F are the cheques issued by Romil International for issuance of drafts. Ex.PW9/G are credit vouchers. Ex.PW9/J and Ex.PW9/K are the cheques issued by Romil International in favour of Sheela Harchandani and Ram Harchandani.

96. Ex.PW11/A are the posting orders of Inspectors, Superintendents and Assistant Commissioners. Ex.11/B is office order regarding the posting of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-35 of 121) Inspector Ex. PW11/C is the office order regarding the posting of the Superintendent.

97. Ex.PW14/A is panchnama dated 26.05.99 is respect of examination of samples. Ex.PW14/B1 is the envelop containing the samples.

98. Ex.PW15/A is copy of inventory register for booking of container number HDMU 2072887 to Romil International for Hongkong, container no. HDMU 2249761 to Swati Freight for Dubai. Container no. HDMU 2968235 allotted to Swati Freight for Dubai.

99. Ex.PW16/A is the sanction order to prosecute accused Shiv Kumar Superintendent of customs.

100.Ex.PW17/A is sanction order to prosecute Sh. Zakir Anwar, Inspector.

101.Ex.PW18/A1 is the exportimport code issued to Romil International by the office of Joint Director General of Foreign Trade.

102.Ex.PW19/A is production cum seizure memo related to account opening form of M/s Romil International relating to A/c 1465 at State Bank of Mysoor. Ex.PW19/B is the account opening form of Romil International at State Bank of Mysoor.

103.Ex.PW20/A is the production cum seizure memo regarding the handing over of certified copies of show cause notice in respect of M/s Romil International and other set of certified photocopies of eight shipping bills in respect to M/s Romil International CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-36 of 121)

104.Ex.PW21/A is panchnama dated 21.12.99 drawn at ICD Tuglaqabad relating to container no. HDMU 296823 belonging to Romil International. Ex. PW21/E is the letter dated 29.01.2007 addressed to Sr. Public Prosecutor CBI by Mukesh Gaur, Intelligence officer stating that eight representative samples were drawn vide panchnama dated 21.12.98 from HDMU 2968235, however only 7 samples out of the same could be traced and same has been exhibited and efforts were made to trace the 8 samples but same could not be traced.

105. Ex.PW22/DX is the letter dated 27.03.99 addressed by Vinod Gandotra to Ld. ACMM regarding that statement by DRI was recorded illegally. Ex. P264 to Ex. P324 are the shipping bills in relation to the consignment sent by Romil International through Shipwell Cargo Services Ltd., in September 1998.

106. Ex.PW24/A is letter dated 30.03.2000 written by M.K. Sinha Deputy Director to Anil Kumar Superintendent of Police, CBI enclosing show cause issued to Lalit Roy Dutta and other documents. Ex. PW24/B is the statement of accused Anil Kumar Gupta, u/s 108 Customs Act recorded on 30.12.98. Ex.PW24/C is the statement of accused Raman Jaiswal, u/s 108 Customs Act recorded on 06.01.99.

107.Ex. PW25/A is observation cum seizure memo dated 16.11.2000 of two containers bearing no. HDMU 2968235 and HDMU 2072887. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-37 of 121)

108.Ex. PW26/A is punchanama dated 30.12.98 at Nehva Sheva Mumbai of container no. HDMU 2249761.

109. Ex. PW27/A is the letter dated 05.01.98 written by Romil International to AEPC. Ex. PW27/A1 to A47 are the shipping bills including annexure B,C, declaration forms etc. of consignment booked by Romil International through Shipwell Cargo in September 1998.

110. Ex. PW27/ B1 to B7 & Ex.PW27/B8 to B33 are specimen handwriting/ signatures of accused Raman Jaiswal. Ex. PW27/C1 to C10 is specimen handwriting/ signature of Accused Ram Harchandani. Ex. PW27/D1 to D78 is specimen handwriting /signature of Sudhir Nathani. Ex. PW27/E1 to E44, is specimen handwriting /signature of Vinod Gandotra.

111.Ex.PW4/H1 to H23 & Ex. PW4/H24 to 27 is specimen handwriting /signature of Lalit Roy Dutta. Ex. PW27/F1 is the handwriting expert opinion. Ex. PW27/F2 is the forwarding letter to the handwriting expert opinion. Ex. PW27/F3 is the reason recorded in support of the opinion.

112. Ex. PW29/A1 to A7 is the specimen handwriting of Sh Raman Jaiswal.

113.Ex. PW34 /A is report of Expert Sh Satish Chand Jain. Ex. PW34/B is the report of Expert Sh Javed Khan.

114. Ex. PW36/A is the registration cum membership certificate of AEPC CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-38 of 121) issued to Romil International bearing the name of proprietor as Ram Harchandani.

Exhibited statements u/s 108 Custom Act:

115.Ex. PW4/X (Mark D) Statement of Lalit Roy Dutta (PW4) dated 06.01.99 u/s 108 Customs Act. In this statement this witness stated that he joined Swati Freight Movers in October 1998 and was issued G card from Customs House, New Delhi and looking after the work of clearance relating to export ICD, Tuglaqabad which was assigned to him by Sh Anil Kumar Gupta CHA, Swati Freight Movers. He also stated in the statement that he knew Romil International as he got the work of Export clearance of this firm from Sh Sudhir Nathani and Sudhir Nathani met him at the parking and offered the work relating to his firms, however stated that he do not know Ram Harchandani. He stated that shipping bill No. 1041024 and 1040825 and related documents which were signed by him today (i.e, 06.01.99) were given by Sudhir Nathani for filing in customs. He further stated that he had not seen the goods meant to be exported under these shipping bills and he was given impression by Sudhir Nathani that goods are of very good quality. He further stated that he filed papers in respect of two consignments of M/s Romil International . He stated that he has filed 3 shipping bills in respect of first consignment of M/s Romil International under claim of duty drawback. He further stated that copies of all the shippings bills were taken by Sudhir Nathani and no copies of shipping CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-39 of 121) bills were given to him. He further stated that he only filed papers with custom in respect of export of readymade garments of following firms of Sudhir Nathani namely M/s PS International, Dynamic Exports, Global Exports, Ek Word Overseas, Radhey Krishna Overseas, Shipping 7 star intex. He further stated that in respect of M/s PS International the paper filed by him for one container load of readymade garments and same were cleared by Sh Sudhir Nathani. He further stated that he do not have copies of paper filed and he has only filed the papers and Sh Sudhir Nathani collected the papers after process. He also stated that one Mr. Sanjeev was coming with Mr. Sudhir Nathani for getting the work done relating to carting, procurement of container etc. and till date not received any payment.

116. Ex.PW20/J statement of Lalit Roy Dutta dated 07.12.99. In this statement he stated that he came to know about the name of M/s Kanak Exports and Shelkon Exports of Sudhir Nathani only while recording his statement on 06.01.99 (not put to witness in evidence, hence not considered).

117. Ex.PW22/A Statement of Lalit Roy Dutta U/s 108 Customs Act dated 05.01.99. In this statement he stated that after joining Swati Freight Movers he cleared around 15 consignment, the name of the firms whose consignments were cleared includes Romil International but have not cleared the goods of PS International. On seeing the papers of PS CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-40 of 121) international he stated he had not signed the papers as CHA or authorised signatory however, accepted that he had put the stamp of Swati Freight movers on the papers. He further stated that he put the stamps on asking of Sudhir Nathani. He further stated that on 16.12.98 at around 05:00 pm Sudhir Nathani met him in ICD and he asked him what happen to the consignment of M/s PS International, on this he told by it was cleared by customs. Thereafter, he shown the checklist, which was in two copies, one checklist was the correct check list which was shown signed by somebody and the CHA license number is R41/98 was written under the signatures and correction. However the final check list was not signed by the CHA but it was already signed by the Superintendent Shiv Kumar who has marked the copy of Inspector EO, Zaki Anwar and Sh. Sudhir Nathani told him that he should not put his genuine signature but put a different signature as already made on corrected copy. He further stated that other documents like examination report or final print out of custom copy not shown to him or I nor he send the same (not put to witness in evidence, hence not considered).

118. Ex.PW22/B Statement of Lalit Roy Dutta u/s 108 Customs Act dated 07.01.99. In this statement he stated that he was promised Rs. 3000/ for clearance of work of PS International but yet not received any money, further more he knew Sudhir Nathani since long therefore he signed the papers. He further stated that he was not present for clearance of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-41 of 121) documents in customs nor for present for examination and this was done by Sudhir Nathani (not put to witness in evidence, hence not considered).

119. Ex. PW20/B, statement of accused Sudhir Nathani dated 22.12.98 u/s 108 Customs Act. In this statement he stated that he was educated upto post graduate in International Trade from Bhartiya Vidya Bhawan and was conversant with the export work and was knowing people in the field of export, and in firm called M/s Shelkon Export he was partner and other partner of this firm his Uncle Ram Harchandani. This firm is engaged in export business and there is another firm by the name of M/s Romil International which is owned by Sh Ram Harchandani his uncle and this firm is engaged in export of readymade garments.

120. Ex. PW20/B1 statement of accused Sudhir Nathani dated 24.05.99 u/s 108 Customs Act. In this statement he stated that he read the statement of Ram Harchandani dated 22.12.98 and it was actually Mr. Ram Harchandani who had suggested him about the export of old and used garments because it was he who know the supplier of old and used garments i.e, Ambey Garments of Tank Road. The garment i.e, old and used bearing labels of made in Hong Kong, USA etc which was seized from the container were arranged by Ram Harchandani and Ram Harchandani gave him the instructions of preparing the documents and accordingly he prepared the documents. He further stated that today he had seen the shipping bills no. 1040825 dated 15.12.98, 1041024 dated CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-42 of 121) 17.12.98, 1040816 dated 15.12.98 and 1040824 dated 15.12.98 and others shipping bills no. 1033401, 1033402, 1033405, 1033411, all dated 23.09.98 and also stated that these all papers were processed by him and he also hired the services of Lalit Roy Dutta for filing the export documents for M/s Romil International and other firms.

121. Ex.PW20/F statement of accused Sudhir Nathani dated 09.02.2000 U/s 108 Customs Act. He stated that he has seen statement dated 31.05.99 and at the stage he do not remember who were the other contact persons, who were given money for payment to customs officer other than Vinod Gandotra and G. Pillai.

122. PW20/L Statement of accused Sudhir Nathani U/s 108 Customs Act dated 24.05.99. In this statement he stated that he is not partner of Romil International and this firm is owned by his uncle Sh. Ram Harchandani. He further stated that he know that exports goods of M/s Romil International contained in container no. HDMU 2968235 covered by shipping bill no. 1040825 dated 15.12.98 and 1041024 dated 17.12.98 were seized by DRI officers on 21.12.98. He further stated that it was actually Mr. Ram Harchandani who purchased old and used garments because he knew the supplier of old and used garments i.e. M/s Ambey garments of Tank Road and the old and used garments seized were obtained by Ram Harchandani from M/s Ambey Garments and Ram Harchandani gave him the instruction of preparing the exports documents of these garments and CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-43 of 121) accordingly he prepared the documents. He further stated all the documents including shipping bills belongs to M/s Romil International. He further stated that he had seen the shipping bills no. 1040825, 1041024, 1040816, 1040824 including the annexures and connected documents and these papers were processed by him and he hired the services of Lalit Roy Dutta for filing the export documents of Romil International, and other documents and for the purpose of examination and clearance of the goods he used to pay the money to Vinod Gandotra who knows the custom officers. He further stated that as per procedure, drawback is paid only on FOB value of the export goods. The remittance against these exports are received in the course and even if the remittance are not received immediately or after some time the draw back is not held up. He further stated that he had not filled the annexure C of the shipping bills but filled the annexure B in his own handwriting.

123. Ex.PW22/J statement of accused Sudhir Kumar Nathani U/s 108 Customs Act dated 06.03.99. In this statement, he stated that today when he came out of court of ACMM of PHC he was served the summons u/s 108 Customs Act therefore he appeared before DRI officers for recording of his statement relating to PS International. He stated that in the month of November, December 97 he opened a company with his real mausa (accused Ram Harchandani) in the name & Style of M/s Shellkon Exports. He further stated that in June 98 they exported shipment of garments to CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-44 of 121) Dubai under claim of duty drawback which they received within 1015 days and in June 98 he opened a company M/s Kanak Exports. He further stated that Arun Kumar Vij is proprietor of M/s Ambey Garments and have purchased clothes from him, and Vinod Gandotra is family friend. Zaki Anwar is Inspector ICD Tuglaqabad who clears consignments and on 16 December to 18 December 98, M/s Romil International which is owned by Ram Harchandani. In reply to question that he and Ram Harchandani had made several exports in past through different companies and regarding their work distribution, he stated that he used to deal with all the matters jointly however, he has the experience of export documentation and he used to prepare export documents for companies owned by him or Ram Harchandani and purchases of the goods were generally done by Ram Harchandani. He also stated that Sanjay was his employee and used to look after several types of work like export work etc., and most of the work of Romil International, Kanak Export and Shellkon Export were done through Lalit Roy Dutta. He also stated that he may or may not be at ICD, on confronting with the statement of Lalit Roy Dutta on 15.12.98, he also stated that he may have given the pre shipment documents of M/s Romil International through Sanjay Kumar, his employee. So far as PS International is concerned, he stated that he has not given any documents to Lalit Roy Dutta. The pre shipment documents of M/s Romil International were partly prepared by him.

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-45 of 121)

124. A question was asked, when he has given the documents to Sh Lalit Roy Dutta it was not signed by the exporter or the authorised signatory of M/s Romil International, was it signed by Ram Harchandani after he gave documents to Lalit Roy Dutta or somebody else has fraudulently signed there. In reply to this he stated that he had called Ram Harchandani who told him that he had not signed on either the declaration or invoice. He further stated that he has signed on annexure C of shipping bill no. 1040824. On seeing annexure C of shipping bill no. 1040866 of PS International he stated that he has filled all the entries of annexure C. he further stated that he have made all the entries in page no.1 & 2 of annexure C of shipping bill no. 1040874. In reply to question why he had filled up the annexure C of shipping bills no. 1040874 and 1040866 he stated he do not remember. He further stated that he do not know any Sarit Vij or Raman Jaiswal of PS International.

125. Ex.PW20/C statement of Anil Kumar Gupta (PW5) dated 07.01.99 u/s 108 Customs Act. He stated that he came to know about the firm Romil International on 23.09.98 as he inquired about it from B.R. Dutta who informed him that his brother Lalit Roy Dutta had cleared two consignments of 200 cartons each of M/.s Romil International and Lalit Roy Dutta was holding his authority since 20.10.98. Lalit Roy Dutta however never informed him about the doing job for Romil International and he has employed 5 persons including Lalit Roy Dutta. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-46 of 121)

126. Ex. PW24/B statement of Anil Kumar Gupta (PW5) u/s 108 Customs Act, dated 30.12.98. He stated that he was working as clearing agent for last 20 years and in the year 1998 he received permanent licence no. R41/98 and employed 5 boys including Lalit Roy Dutta. He further stated that he do not have any knowledge of the company namely PS International. And PS International work was handled by Lalit Roy Dutta.

127. Ex. PW20/D statement of accused Ram Harchandani dated 31.05.99 u/s 108 Customs Act. In this statement he stated that M/s Al Gandheer was introduced to him by Vishal International.

128. Ex. PW20/E statement of accused Ram Harchandani dated 11.03.2000 u/s 108 Customs Act. In this statement he stated that he assisted Sh. Sudhir Nathani in purchase of garments belonging to M/s Kanak Exports.

129. Ex. PW23/A, statement of accused Ram Harchandani u/s 108 Customs Act dated 22.12.98. In this statement he admitted that he is proprietor of M/s Romil International from 45 months back and documents of Romil International were filled 45 days back and his firms bank account no. 1977 is in PNB ICD Tuglaqabad and A/c 1465 in State Bank of Mysore and the consignment covered under shipping bill no. 1040825 dated 15.12.98 and 1041824 dated 17.12.98, contained in container no. HDMU 2268235 was examined in his presence on CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-47 of 121) 21.12.98 and consignment was found to contain old and used garments. Some of the garments were torn and some of the torned garments repaired. He further stated that panchanama dated 21.12.98 was signed by him and the garments were purchased from Ambey Garments.

130. Ex.PW20/G statement of Sh. Vinod Gandotra (PW7) dated 17.03.2000 U/s 108 Customs Act. In this statement he stated that he know Sh. Sudhir Nathani since in the mid of 1998. He further stated he know about the ownerships of Kanak Export by Mr. Sudhir Nathani after detection of case against M/s Romil International (not put to witness in evidence, hence not considered).

131. Ex.PW24/H statement of Sh. Vinod Gandotra (PW7) dated 18.01.2000 U/s 108 Customs Act. In this statement he stated that he know Sh. Sudhir Nathani since in the mid of 1998. He further stated he know about the ownerships of Kanak Export by Mr. Sudhir Nathani after detection of case against M/s Romil International. In this statement he stated that he was aware that M/s Romil International belongs to Sudhir Nathani however, other two firms M/s Shelkom and Kanak Export, he came to know only after detection of case against Romil International and he further stated that he had taken money from him and passed it to Sh. Zakir Anwar to the amount of Rs. 3.25 lacs which he had already narrated in his earlier statement dated 13.03.99 recorded by officers of DRI, Nepal Division, New Delhi. He further stated that he had never taken any money CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-48 of 121) for payment to custom officer from Sudhir Nathani except one payment which he had already stated (not put to witness in evidence, hence not considered).

132. Ex. PW22/K statement of Vinod Gandotra u/s 108 Customs Act dated 13.03.1999. Vinod Gandotra statement was recorded on 13.03.99 in which he stated that he met Zaki Anwar one year back in Faridabad and thereafter in 1998 in ICD Tuglaqabad and also know one Sudhir Nathani and Sudhir Nathani know that he also know Zaki Anwar and thus asked him to introduce him to Zaki Anwar. In the month of December 98, Zaki Anwar contacted him that some money was to be received from Sudhir Nathani, thereafter, at around 5.30 pm Sh Sudhir Nathani handed over a money in black polythene to Zaki Anwar and Zaki Anwar himself gave him Rs. 35000/, the date he told around 16.12.98 to 17.12.98 (not put to witness in evidence, hence not considered).

133. Ex. PW22/DX, is a letter addressed by Vinod Gandotra from judicial custody to the court of Ld. ACMM dated 27.02.99 in which he stated that he read in newspaper calling him the tout of M/s PS International. He submitted in this letter that he is a steal scrap dealer and have not supplied or manufactured any garments for export etc. and never visited Tuglaqabad Custom Officer to get any consignment clear and his statement was recorded by DRI illegally as DRI officers told to use him against Custom Inspector Zaki Anwar and he was arrested to create the evidence against CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-49 of 121) him and DRI is keeping him in jail by misuse of their power.

134. PW20/K Statement of Arun Kumar Vij U/s 108 Customs Act dated 09.12.99. In this statement he stated that he is having shop at E16/915 Ganesh Gali, Tank Roa, Karol Bagh, New Delhi and used to do the work of ready made surplus, and running the shop of Ambey Garments. He further stated besides exports surplus/rejected ready made garments we used to supply the old and torned clothes. He further stated that he know Ram Harchandani who came to his shop for supply of old garments and he sold him the garments as far as he remember between October to December and he given the bill for the same through Ram Harchandani in the name of Romil International. However also stated that he had not supplied any garments to Shelkom Exports and Kanak Exports (not put to witness in evidence, hence not considered).

135. PW22/F statement of Arun Kumar Vij U/s 108 Customs Act dated 11.02.99. In this statement he stated that he was proprietor of Ambey Garments and his brother also assisting in the business and this firm used to pick the surplus ready made garments from factories and thereafter sold the same in the market and used to sell the same from their shop. He stated that he sold some material to Mr. Ram Harchandani on 16.12.98 and identified accused Ram Harchandani from the photographs. He further stated that he sold 11,300 pieces at the rate of Rs. 12 per piece and thereafter packed the same and further packed 49,700/ pieces with CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-50 of 121) quality like our pieces and there value could not be more than 20 rupees per piece and these goods were dispatched through transport from there place. He further stated previously also in October, 1998 Mr. Ram Harchandani bought 8000 pieces at the rate of Rs. 12/ from him (not put to witness in evidence, hence not considered).

136. Ex.PW22/G statement of Arun Kumar Vij, Proprietor of Ambey Garments U/s 108 Customs Act dated 23.02.99. In this statement he stated that he knows Ram Harchandani from 910 months. He further stated one boy Sarju along with Ram Harchandani came to them and also used to talk for purchase of lady tops @ Rs. 12/ and he had given Ram Harchandani the material once 8000 pieces and second time 11,300 pieces and first time he was given the material on cheque and second time on cash (not put to witness in evidence, hence not considered).

137. Ex.PW22/H statement of Ajay Kumar Vij U/s 108 Customs Act dated 12.02.99. In this statement he stated that he do not have any contact number of Ram Harchandani and he do not know any Sudhir Nathani, Sarit Vij or Ramesh Jaiswal and on 16.12.98 at around 09:30 am Ram Harchandani called his brother and thereafter he agreeing seven tempos for ICD Tuglaqabad through Roa Transport and Ram Harchandani also accompanied the tempo to ICD Tuglaqabad (this witness not examined, hence statement not considered).

138. Ex.PW22/C Statement of accused Zaki Anwar U/s 108 Customs Act CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-51 of 121) dated 06.01.99. In this statement he stated that he was giving this statement u/s 108 of Customs Act in connection with the seizure of export goods of PS International, New Delhi made by DRI Nepal Division. He further stated that he joined customs Head Quarters in July 1998 and from there in October 98 he joined ICD Tuglaqabad and at present posted in Disposal Cell of ICD with effect from 22.12.98. After the entry of the goods the whole set of papers comprising tally sheet, annexure sheet invoice, packing list, declaration used to go to the Superintendent Export for marking thereafter documents are marked to him for examination and then he used to conduct the examination in presence of CHA or his representative. Thereafter the examination report is fed in the computer by him. On annexure sheet back side Inspector, Superintendent and CHA signs after physical verification is done. After that the goods are allowed to be shifted by the Inspectors and the agency meant for shifting. The goods were shifted in the container by the agency and issue a tally sheet showing the physical shifting of the goods in the container. After seeing the tally sheet inspector issues the order for giving seal to the CHA. One UDC enters the particulars of the exports in the scaling register and grants a seal number and register entry number on the back of annexure C and signs, then CHA takes the papers and goes to the sepoy which is having all the seals in his possession. The sepoy picks up the given seal number and put in on the container and signs in token of doing this on the back of annexure CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-52 of 121) C then CHA brings all the papers complete with all formalities to superintendent who then given the let export order then, the CHA takes the papers and given them to CONCOR for handing over the container to CONCOR and if there is any inquiry from AC, DC or system for ascertaining the price then the market inquiry is to be taken by CRCA and reports collected. He further stated it took around 34 hours to complete all above mentioned formalities. In reply to what documents to be examined before entering into the computer and giving the certificate of examination with reference to the export made under claim of drawback. He replied that when the export cargo arrives in the shed it is presented with the following documents CRN issued by CISF (carting), II checklist, III annexure C, IV annexure B, V Invoice. There is no examination by them in respect of the carting as it is issued by CISF. In respect of checklist when they file the shipping bill No. on the computer, the complete details of checklist appears on the computer which compared with the checklist. They see the signature of CHA/ exporter. In respect of annexure C the details given therein are fed into the computer and the inspector signs on page2 certifying the arrival of goods as per annexure C. Annexure C is signed by CHA/exporter when it arrives before the inspector. They do not have any examination in respect of annexure B as its details are not available in the computer. In the invoice they check the consigner, price of goods and the number of pieces. In reply to the question how the examination report generated and how does it CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-53 of 121) come to you for signatures, after the LEO is passed by the Superintendent and fed in the computer, it automatically goes to the CMC, which is located in the shed itself. Then the CMC generates its printout of the examination report and the LEO, thereafter the printout is taken only CHA/ representative who give it to the inspector who has examined the goods. Then the inspector signs on the front page of this printout then CHA took this printout to Superintendent (export shed) where superintendent signs on the first page and second page of LEO allowing the shipment. There is no fixed practice, it can be signed before the CHA signs or otherwise. In reply to the question that how he assures that CHA or the authorised signatory is signing and bringing the documents and not any other person. He replied that at the time of goods arrival in the computer, CHA is named and identity number is printed on the checklist. The computer shows the name of the same in the shed. If it takes then no further identification is done. In reply to question that whether he has examined consignment of M/s PS International on 16.12.98. he replied that he remember because on 21. December officers of DRI came to ICD and inquired about the papers regarding the shipment of M/s PS International. He further stated four shipping bills were filed by M/s PS International. In reply to question what examination he had done in respect of goods brought for export corresponding to these shipping bills, he stated that he had not done any examination of the consignment brought there from CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-54 of 121) shipping bills. He further stated that he has seen the examination report which was duly signed by him, however stated that he had not examined the consignment physically but signed the examination report because of heavy work having additional charge of Inspector Headquarter etc. He further stated that he had not seen Anil Kumar Gupta before and he is not the person who had cleared the consignment. However, he has seen Lalit Kr. Dutta number of times in ICD, however he is not the person who was present on 16.12.98 and got the consignment cleared for M/s P.S International. He further stated that consignment of P.S International was cleared by one Sanjeev/ Sanjay who used to be there in ICD quite often. But he is not aware whether Sh Sanjeev is CHA or authorised signatory. He further stated that he knew Sudhir Nathani for around a month and he used to be quite often in ICD and was also proprietor/ partner of Romil International and whose consignment he cleared just couple of days before the consignment of P.S International was cleared. The consignment of Romil International was also cleared by same Sanjeev and Nathani was present while clearance of consignment. He further stated that when the name of the CHA and code number is verified from the computer then no further identity is done in the shed and he was not aware that Sh Sanjeev was not connected with CHA i.e, Swati Freight Movers. He further stated that he do not identify the person because of heavy work load. In reply to the question that if he is not aware about the identity of the person then CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-55 of 121) why did he signed the examination report without proper examination. On this he stated that there is no relation between the signing of examination report without physical verification and identity of CHA/ exporter and the examination report was signed without verification because of heavy work pressure and also because of in experience as he was posted in ICD only around 2 months back.

139. Ex. PW22/D Statement of accused Zaki Anwar dated 19.04.99 u/s 108 Customs Act. He stated that he know Vinod Gandotra and Vinod Gandotra is brother in law of one of his colleagues A.K. Khurana and Vinod Gandotra used to arrange container for exporter and he only once went to the house of Vinod Gandotra and used to meet Gandotra once or twice in a month. He also provided the mobile numbers of Vinod Gandotra and Sudhir Nathani was introduced to him by Sh Sanjay who used to do the work of Sudhir Nathani. He further stated that on 16.12.98 Sh Sanjay alongwith Sudhir Nathani was there in the ICD and Sh Sanjay came to export shed office alongwith 8 shipping bills i.e, 4 shipping bills for Romil International and 4 shipping bills for PS International and he told that M/s Romil International and PS International are the companies of Sh Sudhir Nathani and asked him to file the details of container, package number etc. as given in annexure C in the computer. Sh Sudhir Nathani was also standing int he export shed nearby. Thereafter, he made the entries in the computer and it automatically went into the Superintendent computer. The CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-56 of 121) documents like checklist, annexure D and C were not sent to the superintendent physically also. The Superintendent Shiv Kumar marked all the document to him by signing on the checklist and making necessary entries int he computer. Then documents were physically brought to him by Sh Sanjay and he allowed the stuffing of the goods at annexure C of shipping bill No. 1040864 dated 16.12.98 without conducting any examination. Thereafter, the goods were shifted in the container and he ordered for issuance of seal on the same annexure C. then the container was sealed,t hereafter Sh Sanjay brought all the shipping bills on which proof of sealing of container was there and there he signed below the rubber stamp put on the back page of annexure C and simultaneously filled examination report in the computer. Then the printout of examination report was brought to him by Sh Sanjay which he signed and marked all the documents to the superintendent who has given the Let export order. He did not noticed to see the signature of CHA/ exporter in annexure C. he further stated that he had signed all the 4 printouts of examination report without the signatures of CHA because he thought CHA will sign the examination report subsequently. He denied that Sh Vinod Gandotra took some payments for giving to him. He further stated that he might have spoken to Vinod Gandotra or Sudhir Nathani on phone on 16th or 17 December. He also given the cellular number of Sudhir Nathani and stated during December 98, he used to talk to Vinod Gandotra and Sudhir CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-57 of 121) Nathani around once or twice in a day and on confronting with printouts of the mobile numbers which were made by him containing almost dozen of calls, he stated that he cannot remember the reason for which he made so many conversation with Sh Sudhir Nathani and Sh Vinod Gandotra.

140. Ex.PW23/C (mark B), statement of accused Zaki Anwar Inspector u/s 108 Customs Act dated 12.03.1999. In this statement, in reply to the question what is the procedure followed in Export shed, ICD in respect to examination of the export consignment, he stated that CHA/exporter presents Annexure A (checklist), annexure B and annexure C to any inspector and the inspector tallies the description, weight, value etc with the details available on computer and if the documents are same then the number of packets, container number, serial number of packets are fed into the computer after which the documents are returned to the party after signing annexure C in token of verification and feeding of details. The signatures on annexure C also indicate that the goods have arrived in the shed. The documents are submitted to the superintendent shed who mark the name of inspector for examination of the goods and the name of inspector is indicated in the computer as well as in documents. Generally, the documents are marked to the inspector who has done the arrival of the goods. The documents were marked on the basis of work load on each inspector which they can note from their computer terminals. 2% of the total number of packets as shipping bills are required to be examined CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-58 of 121) subject to minimum of 2 packets. After verification, the examination report is fed in the computer and shifting is allowed on annexure C. the CHA/ exporter gets the goods stuffed in the container and a tally sheet is issued by the shipping contractor on the basis of tally sheet order for the issue of seal ( one time back) are issued by the inspector on annexure C on the basis of which seal number issued by UDC in export shed and the corresponding seal then issued by superintendent. The container is sealed by this seal by another sepoy and the sepoy after sealing the container put a stamp on annexure C and also signs annexure C alongwith a stamp. The documents are then submitted to inspector who signs below the stamp (indicating container number and seal number) and CHA also signs the annexure C and lastly the Let export order was issued by the superintendent. He further stated that generally the goods are not examined by superintendent and commissioner except where the superintendent or Asst. commissioner on his own directs for examination of goods of any particular shipping bill in his presence. In reply to the details of documents which are to be submitted when the exporter/CHA presents their documents for the first time in the shed and what are the checks exercised by him when these documents are presented to him. He stated that the documents include checklist, annexure B, prepared. The checks exercised when the documents are presented are verification of details mentioned on the checklist with the details appearing on computer, the clarification of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-59 of 121) drawback schedule, the details of annexure C are also tallied with the details appearing on computer. He also stated that he does scrutinise the documents for purpose stated above.

141. He also stated that examination reports relating to shipping bills no. 1040816, 1040824, 1040825, 1041024 were signed by him and let export order was signed by Superintendent Shiv Kumar. He further stated that he seen the panchnama dated 21.12.98 and 3012.98 and the proceedings of panchanama dated 21.12.98 were carried out in his presence. He further stated that he could not examine the consignment due to heavy workload and one person by the name of Sanjeev was coming from Romil International. During examination Sanjeev told that documents of Romil International belongs to Sudhir Nathani and he has also cleared the assignment of M/s Romil International in September 1998.

142. Ex. PW22/DY, statement of accused Raman Jaiswal u/s 108 Customs Act dated 07.01.99. He stated that he has vacated the premises of PS International i.e, R2605/21 in January 98 and PS International was registered for manufacturing leather garments and there is no need to inform any Government department for closing down of PS International. He further stated in the letter to bank he has mentioned the address which was already vacated. He further stated that he do not have any export order when he opened the account for duty drawback. He further stated that he do not know about the seizing of container of PS International on CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-60 of 121) 21.12.98. He further stated that he do not know who has exported these consignments. He further stated that he do not know any Sudhir Nathani, Sanjeev/ Sanjay or Anil Kumar Gupta. He further stated that he has not authorised any other person to sign on behalf of the company. He also stated that he has seen and signed 4 pages of annexure B but stated that these were not signed by him or Sarit Vij.

143. Ex. PW24/C statement of accused Raman Jaiswal u/s 108 Customs Act dated 06.01.99. In this statement, he stated that he do not know anything about the 4 shipping bills no. 1040874, 1040866, 1040865, 1040864 and he has not signed any of the shipping bills. He also stated that he do not know who is the clearing agent for these shipping bills and perhaps Sarit Vij can throw light on this aspect and he met Sarit Vij lastly in January 99 and do not know his whereabouts. The bank account in which drawback amount could have gone is PNB which is jointly operated.

144. Ex. PW22/E Statement of accused Shiv Kumar Superintendent Customs u/s 108 Customs Act dated 03.02.99. He stated that after marking the checklist to the inspector, the inspector conducted the physical verification of export goods and stuffing of the goods in the containers and sealing of the container. After the container is sealed, the inspector gave his report on the back of annexure C and filled the container number and sealed number and signed the document and lastly the Let export order was issued by him. And after Let export order the exporter may file the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-61 of 121) drawback claim with drawback section. He stated he signed the Let export order and was overburdened at that time and did not had sufficient time to see the documents thoroughly. He further stated that he do not know any person namely Sudhir Nathani, Sanjeev/Sanjay, Raman Jaiswal, Sarit Vij or Lalit Roy Dutta.

145. Besides arguing orally, written arguments were also submitted on behalf of accused Sh. Ram Harchandani, Sh. Sudhir Nathani, Sh. Raman Jaiswal, Sh. Zaki Anwar, Sh. Shiv Kumar.

146. Arguments heard. Record Perused.

147. The approach of the court in appreciating evidence must be integrated and not truncated or isolated meaning thereby inferences should not be drawn by picking up isolated statement from here and there; rather the evidence on a particular point should be examined in the background of remaining statement of witnesses as well as the evidence. The finding to be based on objective assessment of the evidence. Apex court in "Dalbir Singh & Ors. Vs. State of Punjab AIR 1987 SC 1328", observed that no hard and fast rule can be laid down about appreciation of evidence and every case has to be judged on the basis of its own facts.

148.The skill of appreciation of evidence itself demands disengaging truth from falsehood therefore wholesome rejection of testimony of a witness because some or other part of his statement had not been found to be true, may lead to injustice. While appreciating the evidence of a witness the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-62 of 121) approach must be whether evidence of witness read as a whole appears to have ring of truth, thereafter the court to scruitnize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in evidence as a whole. In "Bhagwan Tana Patil Vs. State of Maharashtra, AIR 1974 SC 1974", apex court holded that a function of court is to disengage the truth from falsehood and to accept to what is true and reject the rest. In "State of UP VS. Shankar, AIR 1981 SC 897", apex court observed that mere fact that witness has not told the truth in regard to peripheral matter would not justify the wholesome rejection of his evidence.

149. There is misconception regarding the effect of declaring a witness hostile. It is perceived that evidence of such witness is wholly washed off from the record and that it cannot be acted upon by the court. However, this notion is totally misconceived. As expressed by apex court in "Khujji Surender Tiwari Vs. State of MP, AIR 1991 SC 1853", the evidence of the prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him, however, the same to be accepted to the extent his version is found to be dependable on careful scrutiny thereof. In "Rabinder Kumar Dey Vs. State of Orissa, AIR 1977 SC 170", it has been held that by giving permission to cross examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-63 of 121) Merely on this ground entire testimony cannot be excluded from consideration. In appropriate cases, the court can rely upon that part of the testimony of such witnesses which are found creditworthy. Latest amendment in section 154 of Evidence Act carried out by way of criminal law (amendment )Act 2005 also provides that nothing in section 154 shall disentitle the person so permitted under subsection (1) to rely on any part of the evidence of such witness. To sum up, the art of appreciation is to be carried out in holistic perspective and not in isolation or mechanical manner. In this background, the various facts and circumstances and contentions are appreciated.

150. The relevant circumstances which are to be appreciated, is the factum of purchasing of goods by accused Ram Harchandani and packing of the same through Ambey Garments, filing of the shipping bills through PW4, processing and collecting of bills by accused Sudhir Nathani. Role of accused Sudhir Nathani in clearing the said goods in connivance with accused inspector Zaki Anwar, thereafter subsequent raid by DRI officials of the containers containing these goods, which are found to be old, used and torned garments, in complete contravention to the declaration in the shipping bills, and the statements of the accused and the witnesses recorded by DRI officials u/s 108 Customs Act.

Seizure of container no. HDMU 2968235 of M/s Romil International CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-64 of 121) relating to shipping bill nos. 1040825 and 1041024, container no. HDMU 2249761 of Romil International relating to shipping bill nos. 1040816, 1040824, HDMU 2072887 of PS International relating to shipping bill nos. 1040874, 1040865, 1040864, 1040866:

151.As per prosecution case, all the goods under shipping bills were stuffed in three containers, one belonging to PS International and other two belonging to Romil International.

152.Pursuant to direction of senior officer PW21 Kapil Vohra in presence of independent witnesses and other official of DRI and Ram Harchandani, Inspector Zaki Anwar opened the container no. HDMU 2968235 belonging to Romil International lying at Rail yard, ICD, Tuglaqabad on 21.12.98. On opening the container as per panchnama Ex. PW21/A 199 cartons were found which were without serial number and those cartons were marked with Romil International to Dubai, and on examination the goods were found to be less than total declared quantity of 30,000/ pieces as shown in the two shipping bills no. 1040825 and 1041024. Furthermore, the goods were found old, used and torned and in some pieces labels of Chinese language were found and other pieces were found with foreign marking of Pakistan, USA and Switzerland. Some of the ladies garments were found smelling badly and even in some of the pieces label was not there. It was found that garments are nothing but rags and of very poor and cheap quality, and average value per piece is not more than 20 and CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-65 of 121) maximum value of 29,672 pieces found put in the said container was apprised approximately Rs. 5,93,440/ against declared value of US$ 2,52,675/ FOB equivalent to Rs 01,06,88,152/. 08 samples were drawn from the cartons and sealed with the seal of DRI and signatures of Sh. Ram Harchandani and Sh. Zakir Anwar were also taken on those samples. Thereafter, the container was resealed.

153.This container was seized on 21.12.98 itself and it is pertinent to mention at that time that neither Sh. Ram Harchandani nor Sh. Zaki Anwar were the accused persons, and Ram Harchandani was called by DRI officials as the Proprietor of Romil International and accused Zaki Anwar called as Inspector, Customs on whose inspection the goods were stuffed in the container.

154.PW21 Kapil Vohra categorically deposed that this container was opened in the presence of Sh. Ram Harchandani and Sh. Zaki Anwar, however in cross examination no question is asked on behalf of Sh. Ram Harchandani that he was not present at the spot at the time of searching of the container and also not disputed his signature during cross examination over the panchnama Ex.PW21/A. This circumstances not only removes doubt over seizure proceedings but also demolishes the explicit defence of Sh. Ram Harchandani that he has nothing to do with the present container and was not identified during proceedings by any of the witness. Furthermore, Sh. Zakir Anwar also present during the proceedings and not raised any CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-66 of 121) question over his signatures on seizure memo Ex.PW21/A. Pursuant to these proceedings statement of Ram Harchandani u/s 108 Customs Act (Ex. PW23/A) was recorded on next day i.e, on 22.12.98, in which he stated that seizure proceedings were conducted in his presence on 21.12.98 and consignment was found with old and used garments. In cross examination, he even not suggested PW23 that his statement Ex. PW23/A was recorded under duress. He never retracted this statement.

155. Furthermore, nothing came in cross examination of PW21, who seized the container on 21.12.98, that Zaki Anwar was not present during the seizure proceedings. The seizure proceedings conducted on 21.12.98 firmly establishes that the goods of inferior quality were recovered from the container belonging to Romil International and are in complete contravention to the declaration made in the concerned shipping bills.

156.However, Ld. counsel for the accused persons during arguments as well as in written submissions have submitted that these seizure proceedings cannot be relied upon as CBI neither examined the independent witnesses, even not recorded statement of independent witnesses during investigation. Furthermore, submitted that there is discrepancies in the declaration of slip, no seal movement register, even 8th sample could be produced before the court. This discrepancy though could be of some benefit to accused but in present circumstances when the seizure proceedings were conducted in presence of Ram Harchandani and Zaki Anwar at the time when they CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-67 of 121) were not even the accused persons and in cross examination of PW 21 nothing came out disputing the recovery of old and used garments. Thus, in present set of facts and circumstances, these discrepancies do not create any doubt over the seizure proceedings of container by DRI officials on 21.12.98.

157. Ld. Counsel for accused Ram Harchandani during arguments relied upon Noor Aga case for contending that the infirmities of non examination of independent witness, seal movement and even non production of 8th sample is fatal to the prosecution case and the seizure/ panchanama proceedings cannot be relied upon. This judgment relates to the offences under NDPS Act where the strict compliance is envisaged for certain provisions as there is strict punishment provided the NDPS Act. That kind of strict compliance is not envisaged under the DRI proceedings. Therefore, no benefit of the above said judgment can be given to the accused in present set of facts and circumstances.

Seizure of container no. HDMU 207258706 belonging to PS International relating to shipping bill no. 1040874, 1040866, 1040865, 1040864

158. The above said container was opened on 29.12.98 by PW8 P.N. Sharma, official of DRI with other officials in the presence of Sh. Anil Kumar Gupta, CHA Proprietor of firm M/s Swati Freight Movers, PW 5 Sh. Anil CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-68 of 121) Kumar Gupta in his deposition categorically stated that the seal of that container was broken in his presence and thereafter, the contents of the container and baggages were examined, in which useless garments of inferior quality were found. In his cross examination nothing came that the proceedings of braking of seal was not conducted in his presence and the recovered goods are not of inferior quality. He reaffirmed this fact by denying the suggestion that no proceeding of search of the container was conducted in his presence. Statement of this witness was also recorded u/s 108 of Customs Act (Ex.PW24/B and Ex.PW20/C), wherein he categorically stated these both statements were in his handwriting and given voluntarily. Both these statements also corroborates to the fact that the seizure proceedings were conducted in his presence. Nothing came out in his cross examination to dispute his presence at the spot or any illegality committed over recovered articles. Nothing came in cross examination to the fact that goods do not belongs to PS International or were not of inferior quality.

159. PW8 P.N. Sharma who conducted the search of the aforesaid container also corroborated fact that the recovered goods were not found tallied with the shipping bills. Panchnama dated 29.12.98 (Ex.PW5/A) was prepared by PW 8 in presence of Sh. Anil Kumar Gupta (PW5). As per this panchnama the total quantity of goods as per shipping bills alleged to be around 30,000/ and on opening carton the goods were found to be of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-69 of 121) inferior quality and 10 samples were taken in polythene cover under the signature of panchas Sh. Anil Kumar Gupta and DRI Officials over the paper slip of on a polythene cover. The goods assessed for around Rs. 5,88,000/ and against the declared FOB value of Rs. 02,54,250/ US$ equivalent to Indian Rs.01,07,54,774/.

160.Accused Raman Jaiswal in written submissions submitted that there are infirmities in statements of PW5 and PW8 over timing of search, not stating the facsimile of seal, no statement of the laborer who broken the seal were recorded. Even no seal register was found to be maintained by DRI. Furthermore, CBI has not examined the independent witness during investigation as well as in the court, therefore this seizure proceedings cannot be relied upon.

161.However this discrepancies do not appear to be material because PW 5 Anil Kumar Gupta who is an independent witness and also found to be Proprietor of Swati Freight Movers, their CHA present during the proceedings. It was not at all even suggested to this witness in cross examination that he was forced to join the search on 29.12.98 by the DRI officials or he has any sort of grudge against the accused persons. In these circumstances the discrepancies as pointed out by the accused cannot found to be material. In present set of facts and circumstances, the search of the said container and goods found inside it, of inferior quality is found reliable.

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-70 of 121) Seizure of Container No. HDMU 2249761 at Mumbai:

162. Seizure of container no. HDMU 2249761 belonging to Romil International relating to shipping bills no. 1040816, 1040824 containing 30,000/ pieces of RMG ladies shirts on 30.12.98 by PW 26 Rajesh R. Singh in presence of DRI officials and Sh. Nitin Jankar, Representative of M/s Sea Bridge Maritime Agency. This container was seized vide panchnama Ex. PW26/A in the said memo it was found that on break opening the seal 200 cartons were found having no numbers and garments of ladies shirts of different shapes and size and colour were taken and some of garments were torned and some were recovered having labels of country of manufacturers i.e. USA, Honkong, China, Italy, California, Damican Republic etc and most of the garments were soiled, old and used and two samples each were drawn from three cartons. However, on physical verification 28913 pieces were found and total value of the ladies shirts found in the said container assessed to Rs. 04,33,695/ against declared FOB value of Rs.1,06,50,821/.

163. PW 26 R.R. Singh, Intelligence Officer of DRI in his deposition stated that on the direction of one H.K. Garg, Asst. Director the team comprising of himself, one Sh. M. Kamble, Sh. S.G. Thakur and Sh. M.M. Matre examined the container lying at Dronagiri, Nheva Sheva Port, Mumbai and against the declared quantity of 30,000/ they found less quantity of old CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-71 of 121) torned and repaired garments belonging to out side country, like USA, California etc and during proceedings of seizure Sh. Nitin Jhankar, representative of Sea Bridge Maritime was also present.

164.Ld. counsel for accused in written submissions as well as in arguments stated that CBI has not examined any independent witness relating to present seizure proceedings nor even examined Sh. Nitin Jhankar Representative of Sea Bridge Maritime, which allocated the container and there was various discrepancies in the statement of these witnesses over the seal, the door latches etc, thus tampering is also not at all ruled out.

165.Though prosecution has not examined any independent witness but the testimony of the PW 26 do not suggest that such seizure proceedings were not conducted at the container of Romil International at Mumbai. Furthermore, this search was conducted on 30.12.98 and there is no representation on behalf of accused Ram Harchandani that these goods do not belongs to him, on the other hand his explicit defence is that these goods do not belongs to him. The seizure proceedings as conducted on the previous container also shows packing of old used and torned clothes. Thus, considering the totality of circumstances, the seizure proceedings of this container do not appear unreliable.

166.Hence prosecution able to prove the seizure of three containers belonging to Romil International and P.S International containing old and used garments in contravention to the shipping bills wherein it is declared that CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-72 of 121) these are premium garments.

Processing of Shipping bills belonging to Romil International and P.S International:

167.According to prosecution, accused Sudhir Nathani handed over eight shipping bills, four each belonging to Romil International and PS International to PW4 Lalit Roy Dutta agent of PW5 Anil Kumar Gupta CHA (Clearing House Agent) Swati Freight Movers for processing at ICD, Tuglaqabad. As per prosecution case, PW4 Lalit Roy Dutta was engaged by Sudhir Nathani in presence of his employee Sanjay @ Sanjeev at the parking place of ICD Tuglaqabad, then PW4 Lalit Roy Dutta filed the above shipping bills to CMC for generating check list which was later alongwith annexures collected by Sudhir Nathani.

168. PW4 Lalit Roy Dutta in his testimony before the court in examination in chief categorically stated that Sh Sudhir Nathani had given him the annexures relating to consignment to be exported for M/s Romil International and PS International and he submitted those annexures for submitting check list which was collected by Sudhir Nathani. This witness also exhibited the relevant shipping bills and in cross examination he denied the suggestion that he has not processed the bills as he was not paid by the exporter. The statement of this witness was also recorded u/s 108 Customs Act by the DRI officials (Ex. PW4/X). In his deposition, this CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-73 of 121) witness also stated that he has given that statement (Ex.PW4/X) to the custom officials in his own handwriting and given all the answers regarding the correct factual position and also denied the suggestions that name were given by the DRI officials to him to falsely implicate the accused persons. In cross examination of this witness nothing came that he given the said statement u/s 108 Customs Act under the threat or inducement of DRI officials. In this statement (Ex. PW4/X), PW4 categorically stated that Sudhir Nathani met him at the parking and offered the work relating to his firms i.e, Romil International and PS International however, also named other firms of Sudhir Nathani for filing papers in customs. He further stated that he has not seen any goods meant to be exported under these shipping bills and was given impression that these shipping bills were of very good quality and he only filed papers in respect of two consignments of Romil International and one consignment of PS International under the claim of duty drawback, however all were cleared by Sudhir Nathani. He reiterated in the statement that he only filed the papers and which were collected by Sudhir Nathani and one Sanjeev was also coming alongwith Sudhir Nathani for getting the work done. It was not even suggested to this witness in cross examination that this statement Ex. PW4/X was not given voluntarily to DRI officials, therefore, his statement u/s 108 Customs Act also corroborates the fact that the questioned shipping bills were given by Sudhir Nathani to him for filing CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-74 of 121) which were lateron collected by Sudhir Nathani. This circumstance also connects Sudhir Nathani in processing of the shipping bills relating to Romil International and PS International.

169. PW5 Anil Kumar Gupta, Proprietor of Swati Freight Movers (CHA) also corroborated the fact that Lalit Roy Dutta was employed by him on the instructions of his elder brother B.D. Dutta having signing authority for custom clearance but his firm had not processed any shipping bill of Raman Jaiswal, Ram Harchandani, Sarit Vij. This witness categorically stated that Lalit Roy Dutta was having signing authority of the firm, however from his evidence it is found that PW4 Lalit Roy Dutta used the name of firm without knowledge of PW5. But from evidence on record, the factum of filing of shipping bill on dictate of Sudhir Nathani proved.

170. Ld. Counsel for the accused argued that PW4 Lalit Roy Dutta had not identified Sudhir Nathani in the court and described description of Sudhir Nathani as somebody else, however, mere denial of identification of accused Sudhir Nathani in court by PW4 on cumulative appreciation of the facts and circumstances of the present case do not create doubt the involvement of accused Sudhir Nathani.

171.PW5 Anil Kumar Gupta statement u/s 108 Customs Act was also recorded by DRI (Ex. PW20/C) wherein he categorically stated that on inquiry he found that Lalit Roy Dutta filed paper of Romil International and further in his another statement u/s 108 Customs Act Ex.PW24/B, he stated that the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-75 of 121) work of PS International was also handled by PW4 Lalit Roy Dutta. Nothing came out in cross examination to suggest that the statements u/s 108 Customs Act of PW5 Anil Kumar Gupta were taken under threat, coercion or inducement. Therefore, in these circumstances prosecution able to prove that the relevant 8 shipping bills belonging to Romil International and PS International were presented by PW4 Lalit Roy Dutta and collected lateron by accused Sudhir Nathani.

Circumstances of bringing of goods at ICD, Tuglaqabad for being exported for Romil International and P.S International:

172.The case of the prosecution is that accused Ram Harchandani has purchased part of the exported goods which were stuffed in the above mentioned containers from Ambey Garments, whose proprietor is Arun Kumar Vij and the balance from the market, though packed by Ambey Garments and entire 60,000 pieces packed were brought to the ICD Tuglaqabad in tempos driven by PW2 and PW3.

173.PW2 Khushi Ram in his testimony before the court deposed that he has transported the garments in packets from Sagarpur to ICD Tuglaqabad accompanying Arun Kumar Vij in the year 1998 and took 34 trips for the same. PW3 Laxmi Chand also stated that he and Khushi Ram took the goods from Sagarpur to ICD Tuglaqabad on 16.12.98, and Arun Kumar Vij (PW13) also accompanied them. Both these witnesses supported the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-76 of 121) prosecution case over the delivery of the goods on 16.12.98 at ICD Tuglaqabad. PW13 Arun Kumar Vij also in his deposition stated that he is proprietor of Ambey Garments doing business of export surplus and his brother Ajay Kumar Vij also attending his shop and one Ram Harchandani had purchased some export surplus goods from him but not identified accused Ram Harchandani in the court, however on being declared hostile, he supported the prosecution case that Ram Harchandani has prior to the present transaction also purchased the ladies tops from him, and for present case purchased 11,300 pieces of ladies tops @ Rs 12/ per piece, also packed 50,000/ more readymade garments for Ram Harchandani purchased from some other place and transported them to ICD Tulaqabad.

Further, stated he unable to identify accused Ram Harchandani due to lapse of time.

174.The incident took place in the year 1998 and his testimony was recorded before the court on 23.02.2005. In these circumstances, the non identification on the ground of lapse of memory could be taken as valid justification, even otherwise mere non identification of accused Ram Harchandani by this witness is no ground to dispute the identity of accused Ram Harchandani regarding the purchase and packing of materials from this witness. Firstly, this witness has named Ram Harchandani for purchase and packing of materials and delivering of the same through the transport arranged by him, secondly previously prior to CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-77 of 121) this transaction Ram Harchandani also purchased material from him, thus, the non identification by this witness also appears to be deliberate. It is settled law that the truthful part of a partially reliable witness can always be taken for consideration.

175.Accused Ram Harchandani cannot be given benefit of non identification due to other circumstances like when the container was searched on 21.12.98 he was present and his signature was also taken on panchnama and he had not disputed his presence in relevant cross examination of the said witness (PW21) nor made any immediate representation to any authority that this container and goods contained in it were not belonging to him. It is the explicit defence of the accused that he has nothing to do with the present goods and his company name is fraudulently used by somebody else, this kind of explicit defence can't be relied upon without any immediate representation. Leave aside immediate representation, accused never made any representation to any authority that these goods not belong to him and are planted by DRI.

176. Ld. Counsel for the accused pointed out the infirmities in the statement of PW2, PW3 and PW13 over the factum that there is vagueness in the statement of these witnesses regarding the time of delivery and date of delivery etc. These witnesses have deposed in the court after five and six years of incident. From their testimony, it is clear that the goods delivered at ICD Tuglaqabad belonging to Ram Harchandani. And subsequent CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-78 of 121) recovery of goods in presence of Ram Harchandani also corroborates this fact. In these circumstances, the discrepancies as point out by the defence do not appear to be material. Therefore, prosecution able to prove this circumstance of delivery of the goods, which are lateron stuffed in containers at ICD, Tugalqabad.

Role of Sudhir Nathani and his handwriting on various shipping bills:

177.Ld. Counsel for the accused Sudhir Nathani submitted that PW4 Lalit Roy Dutta not identified Sudhir Nathani, furthermore Sudhir Nathani is neither the partner nor the proprietor of any of the companies i.e, Romil International and PS International. Sudhir Nathani was also alleged to have given the bribe of Rs. 3.25 lacs through Vinod Gandotra (PW7) to accused Zaki Anwar for clearance of above mentioned shipping bills of Romil International and PS International which was not supported by PW7. Ld. Counsel further submits that there is no evidence against the present accused to connect him with any of the accused on record.

178.Ld. Counsel also submits that as per handwriting expert opinion, the handwriting of the accused Sudhir Nathani was found on some bills of Romil International and PS International and mere filling of the forms do not implicate him for any offence. Furthermore, handwriting over Q52, Q68, Q84 and Q98 were photocopies and not original and this fact was also deposed by PW27 L. Nato Singh (Handwriting expert). Ld. Counsel CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-79 of 121) submits that any opinion over the photocopy cannot be read against the present accused. Furthermore, it is also stand of the accused Sudhir Nathani that whatever be the other handwritings matched as per the handwriting expert opinion (Ex. PW27/A) those handwritings were on the coloumns of the various documents relating to shipping bills, and raised plea that somebody came and asked accused Sudhir Nathani to fill those forms and in good faith he filled, and this act is not in any way connects Sudhir Nathani to the present transaction. Furthermore, his signatures were also not found on any of the questioned bills/ documents.

179.Accused Sudhir Nathani examined DW4 Gurpal Singh who deposed that in mid December, 1998 he went to ICD Tugalaqabad with Sudhir Nathani to contact one Pandey who was having office at 3rd floor of ICD Tuglaqabad and when he met him on the first floor of ICD Tuglaqabad, and talking to him, two persons came and requested Sudhir Nathani to fill up few printed pages and on the dictation of those persons, Sudhir Nathani filled up those pages. From this testimony, it is clear that accused Sudhir Nathani is not disputing his handwriting over some of the documents relating to present shipping bills but only stated that he has filled those documents for somebody else. This defence appears to be not at all credible. The question handwriting are handwritings over a portion of, annexure B i.e, declaration form for export of goods under claim for drawback relating to shipping bill numbers 1040816, 1040824, 1040825 & CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-80 of 121) 1041024. These details which are filled are the particulars written as Romil International, its address, its account number and consignee name AlGandheer and its address and also on various other pages of annexures. The defence that somebody asked him to fill these particulars is not at all credible due to the fact because the Romil International is the firm under the proprietorship of Ram Harchandani and it came in evidence that Ram Harchandani is relative of Sudhir Nathani with whom he was having business dealing. The relationship between Sudhir Nathani and Ram Harchandani was also proved by DW1 Rajesh Kumar Nathani who deposed before the court that Sudhir Nathani is his brother and Ram Harchandani his cousin who are present in the court today. The relationship factor makes the explanation of filling of forms for unknown persons make it false and frivolous.

180. Apex court in "State of Maharashtra Vs. Sukhdeo Singh and Anr, 1992 (3) SCC 700", observed that a court can act on the opinion of handwriting expert if genuineness of specimen/admitted handwriting of concerned accused and the competency of the handwriting expert is proved beyond doubt. Nothing came in cross examination to dispute over the factum of specimen and admitted handwriting and no material came to discredit the competency, reliability and dependability of handwriting expert (PW27). Furthermore, nothing came in cross examination that there is any discrepancy in the report as presented by PW27. Accused Sudhir Nathani's CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-81 of 121) writings, as per handwriting expert report also found on previous shipping bill number 1033411. of Romil International which are part of questioned handwriting. This also corroborates the fact that Sudhir Nathani had dealing with Ram Harchandani in previous shipments over which duty drawback was already received by Romil International, as proved through the statement of accounts exhibited by PW9 in his deposition and not disputed by the accused in cross examination, also admitted by Ram Harchandani in his statement u/s 313 Cr.P.C. Therefore, Sudhir Nathani's role in the present case for filling of the documents as well as processing the same also corroborated through the handwriting of Sudhir Nathani himself.

181.Ld.counsel for accused submitted that handwriting over Q52 (markC PW22/BZ), Q68 (mark G PW22/DZ), Q84 (Ex.PW4/F2, PW22/DZ13), Q98 (Ex. PW4/G & Ex. PW22/DZ) are photocopies and any opinion of handwriting on photocopy document cannot be relied upon. Ld. Counsel further submits that these photocopies on annexure B were lifted from some other documents and used malafidely by investigating agency here.

182. This plea do not appear to at all credible but runs counter to the case of accused itself. The handwriting as mentioned in the above questioned writing are the details including particulars of Romil International, its address, its account number, consignee name AlGandheer and the address of consignee. These particulars cannot be found to have lifted from CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-82 of 121) somewhere else because it is not the case of the accused persons that these particulars were filled in some other transaction not in this transaction. Furthermore, accused Sudhir Nathani defence is that he has nothing to do with Romil International, however this defence demolished from the fact, how in his handwriting the above particulars were written. It is also not the case of the accused persons that they have exported the materials to Al Gandheer through some other transactions. Therefore, in these circumstances the plea of opinion of the handwriting expert, even on the photocopy is criminating against accused Sudhir Nathani. Booking of containers:

183.PW15 Kanchan Sayal, Manager Accounts, Sea Bridge Maritime Agency deposed that three containers bearing No.HDMU 2072887, 224976, 2968235 were allotted to Romil International and Swati Freights Movers by their employee Gopal Dixit and in this regard also exhibited relevant entries. Ld. counsel for the accused submitted that this witness could not able to prove that these were booked by Ram Harchandani or any other accused. Ld.counsel submits that this witness herself stated in cross examination that she has no personal knowledge about the allotment of the containers.

184. This witness corroborated the factum of allotment of container in question to Romil International and Swati Freight Movers found to be CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-83 of 121) CHA of both Romil International and PS International. Out of these containers, two were recovered alongwith the goods in presence of Ram Harchandani, Zaki Anwar, Anil Kumar Gupta (PW5). Further, the third container was found to be shifted from Delhi to Mumbai and recovered there by DRI officials. In these circumstances, mere no personal knowledge of this witness for allotment of containers to Romil International and Swati Freight is of no consequence. Thus, prosecution also able to prove that the recovered three containers were booked from Sea bridge Maritime Agency in favour of Rimil International and Swati Freight Movers.

Effect of 'no signatures' of Ram Harchandani on any of the bills:

185.Ld. Counsel for the accused vehemently submitted that accused Ram Harchandani in no way could be connected with the present shipments as none of the shipping bills bearing his signatures or handwriting. Ld. counsel submits that as per handwriting expert opinion, signature of present accused was not found matched over any of the annexures relating to present bills.

186.The perusal of the shipping bills/annexures shows that signatures of the exporter were made as initials and could not be matched. However, it is pertinent to notice that the handwriting expert opinion was also sought over the signatures/ initials of Ram Harchandani over the previous CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-84 of 121) shipping bills bearing numbers 1033401, 1033403, 1033411, 1033402 which were duly cleared for duty drawback in favour of Romil International, as admitted by accused in his statement u/s 313 Cr.P.C and clear from Account statement of account number 1997 of Romil International (Ex.PW1/A), further also from the testimony of PW9 Arvind Singh Sikarwal Manager, PNB, ICD Tuglaqabad, but signatures/initials of Ram Harchandani being exporter are also not found matched as per the handwriting expert opinion on those cleared bills also. This itself shows the practice of the accused is to make such kind of signatures on documents so that lateron they cannot be matched, if apprehended. Furthermore, this act is found deliberate because the accused Ram Harchandani is not signing in the manner as he signed in his bank account. There are writings of Sudhir Nathani also found on some of the documents relating to these bills, as per handwriting opinion. This factum also connects Sudhir Nathani with Romil International and found to be corroborating factor for involvement of Sudhir Nathani in present case. Thus, circumstance of mere nonmatching of signatures/ initials do not anyway absolve accused Ram Harchandani from the fact that these bills do not belong to Romil International.

Zaki Anwar's plea that there is no question of conspiracy as his name was generated randomly at CMC through computer:

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-85 of 121)

187. Ld. Counsel for the accused Zaki Anwar submitted that the case of the prosecution against accused Zaki Anwar fails because the allegation of bribe of Rs. 3.25 lacs for the present work could not be proved by the prosecution and PW7 sole witness of the said fact not supported the prosecution case. Furthermore, there is no other evidence to connect the present accused Zaki Anwar with the alleged offence. Ld. Counsel vehemently submitted that there is no question of any conspiracy as the name of the Inspector Zaki Anwar generated by the computer not manually. Thus, when it is not certain that examination will be conducted by Zaki Anwar, then how he can be part of conspiracy.

188. Prosecution has examined PW10 & PW21 for substantiating the procedure regarding the clearance of export duty drawback shipping bills under duty drawback scheme 199899. PW10 Ajay Saradana Custom Inspector (Export) deposed that at relevant time he was posted as Inspector Export at Inland Container Depot Tuglaqabad and at export shed they were receiving the details of export goods in annexure C accompanied with invoice, working list, GR form, then details of annexure C are entered in computer which is called as goods arrival stage in shed, thereafter these documents were handed over by shed sepoy or CHA to Superintendent, then Superintendent first of all makes the attendance of all the inspectors present in the shed, then marking of packages as well as names of the inspectors were generated in the system for examination. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-86 of 121) Thereafter, as per instructions inspector after examination, feed the examination report in the computer itself and manually write on the back of the annexure C for stuffing container. Examination report was signed by inspector who examines the package and Let Export order was signed by Superintendent on seeing the examination report after sealing of containers.

189.This witness categorically stated that after annexure C which is related to the examination of goods by the customs is received by the Superintendent, then Superintendent after marking packages and on the basis of attendance of inspector makes entry in computer, then inspector is authorised to inspect goods. This testimony itself suggest that the name of the inspector is generated in the export shed computer by Superintendent after noting the attendance of inspectors. There is nothing suggested to this witness that the name of the inspector is generated randomly at CMC counter which alleged to 2 kms away from export shed and not generated in the computer of export shed by Superintendent. PW11 V. Bhatnagar also explained the procedure, who only stated in cross examination that CMC is a different agency which manages the computer which is not in the control of custom office. But it is nowhere suggested to him that his name appears randomly at CMC without marking prior attendance of the inspectors in the shed by the Superintendent. Therefore, the plea of Zaki Anwar that he cannot be said to be involved in conspiracy as his name was CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-87 of 121) generated automatically appears to have no force.

190.It is the practice that preparation of the examination report has to be done in the presence of CHA or its representative or exporter but undisputedly, none of the examination reports prepared by Zaki Anwar bears the signatures of CHA or its representative or exporter. It was submitted that due to heavy work he could not do so, however from this it is also clear that Lalit Roy Dutta (PW4) was not present at the time of preparation of examination reports, which also supports his testimony that he was engaged only for the purpose of filing of papers and has not done anything thereafter.

191. DRI officials after seizure of container during proceedings recorded statement of accused Zaki Anwar u/s 108 of Customs Act on 06.01.99 (Ex.PW22/C), 19.04.99 (Ex.PW22/D), 12.03.99 (Ex. PW23/C, Mark B). There is nothing came on record that these statements were recorded under threat, coercion or inducement by the customs officials and the statement appears to be voluntarily made by the accused. Accused Zaki Anwar at no stage even retracted those statement. There is nothing came in cross examination of PW 22 or PW 23 that these statements were given under threat or inducement by accused Zaki Anwar. Furthermore, the contents of the statements in itself do not suggest any circumstance of threat or coercion over the accused Zaki Anwar. Accused Zaki Anwar in his statement dated 06.01.99 (Ex.PW22/C) duly explained the procedure for CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-88 of 121) clearance of the goods for exports. In this statement he also stated that the Superintendent Export marks him the documents for examination of goods, then he examined the goods in presence of CHA or his representative. This witness in this statement also admitted that he had not seen Anil Kumar Gupta and he was not the person who cleared the consignment and Sh. Lalit Roy Dutta also not present while clearance of the goods and one Mr. Sanjiv/ Sanjay is present while clearance of consignment of PS International and the consignment of M/s Romil International was cleared in presence of Sanjiv and accused Sudhir Nathani. This statement of Inspector Zaki Anwar categorically proves the prosecution case that Sh. Lalit Roy Dutta is found to be engaged only for the purpose of filing of the bills and furthermore, he (PW4 Lalit Roy Dutta) conducted entire proceedings on behalf of Swati Freight Movers without the knowledge of its proprietor PW 5 Sh. Anil Kumar Gupta.

192. Accused Zaki Anwar in his statement also stated that Sh. Vinod Gandotra (PW 7) is brotherinlaw of one of his colleague Sh. A.K. Khanna and Sh. Vinod Gandotra used to meet him once or twice in a month and further, Sh. Sudhir Nathani was introduced to him by one Sh. Sanjay who used to work with Sudhir Nathani and on 16.12.98 Sanjay @ Sanjeev along with Sudhir Nathani were there in the ICD and Sh. Sanjay came to export shed and stated that CHA will sign the examination report subsequently. However, in his statement he denies regarding any payment taken from PW CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-89 of 121) 7 Vinod Gandotra. He also stated in his statement that he might have spoken with Vinod Gandotra on telephone and he was also confronted during statement with various mobile call details of his talks with accused Sudhir Nathani and Vinod Gandotra (however it is to be noted that police during investigation even not tried to connect the accused persons through the mobile call records). Thus, from the statements of accused Zaki Anwar it is clear that he know Vinod Gandotra and Sudhir Nathanji. Furthermore, he has done the clearance of the goods of Sudhir Nathani and not signed the examination reports in presence of CHA, as no CHA or representative was present at that time.

193.Another statement of accused Zaki Anwar recorded u/s 108 of Customs Act on 12.03.99 (Ex.PW23/C). In this statement he again described the procedure followed in export shed. Here, also from this statement it cannot be inferred that his name was automatically generated at CMC computer, 02 km away from the export shed but found that his name was feeded in computer after marking of his attendance by Superintendent accused Shiv Kumar in export shed. He categorically stated that examination report relating to the relevant bills were signed by him and further panchnama proceedings on 21.12.98 were conducted in his presence. In cross examination Ld. counsel for accused persons gave suggestion that this statement dated 12.03.99 (Ex.PW23/C) is photocopies and was a incorrect statement. However, no where it is suggested to PW 23 CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-90 of 121) that this statement was not given voluntarily or given under force and coercion. Furthermore, this statement is in the handwriting of accused Zaki Anwar, then mere non production of original, without dispute of voluntariness do not make this statement inadmissible.

194.Accused Zaki Anwar admitted that he could not examine the goods physically due to heavy rush of work. But considering the omissions, false pleas and voluntrary statements u/s 108 Customs Act, the collusion between accused Zaki Anwar and Sudhir Nathani is apparent irrespective of fact that prosecution not able to prove allegation of payment of bribe money of Rs. 3.25 lacs.

195.Thus, from the facts and circumstances explained above, it can be easily inferred that accused Zaki Anwar conspired with Sudhir Nathani in clearing of goods of inferior quality in contravention to declaration made in duty drawback forms.

196.Furthermore, plea of non examination of goods by accused Zaki Anwar also indirectly corroborates the prosecution story that goods received in his presence were of inferior quality.

Allegations that accused persons tried to export the rags by showing them as premium garments for claiming duty drawbacks.

197. Ld. counsel for the accused persons submitted that prosecution unable to prove that accused persons purchased rags from market to export outside CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-91 of 121) India. Ld. counsel for accused persons submits that PW 2, PW3 and PW 13 could not tell the time of delivery and size of cartons. Furthermore, PW13 Arun Kumar Vij unable to identify accused Ram Harchandani in the court. Ld. counsel for the accused persons submitted that PW 34 who opined that inferior quality of the good brought in the sample is not an expert and used to regularly visit the DRI office for claim of duty drawback thus falls in the category of interested witness.

198.As already discussed PW 2 and 3 had taken the goods purchased by accused Ram Harchandani with PW 13 to ICD Tughlakabad. PW 13 Arun Kumar Vij though not identified the accused but on being declared hostile stated that accused Ram Harchandani had purchased 11300 pieces of ladies top @ 12 rupees per piece and further packed 50,000/ more readymade garments which were purchased by accused Ram Harchandani from somewhere else. The goods are packed in the container of Romil International and PS International which were seized by DRI during proceedings as per the panchnama of three containers Ex.PW21/A, Ex.PW5/A and Ex.PW26/A. The goods were found to be old, used or torned category and of inferior quality. The goods from the container at Delhi as already discussed was seized in presence of accused Ram Harchandani and Zaki Anwar, and panchnama categorically shows that these goods are of inferior quality in contravention to the declaration made in shipping bill annexure. The presence of Zaki as already discussed is not CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-92 of 121) disputed during the search of this container. There is no immediate or otherwise representation on behalf of accused Ram Harchandani that no goods of inferior quality recovered from the container at Delhi. PW 26 also deposed that goods of inferior qualities were recovered from the container of Romil International at Mumbai and the panchnama Ex. PW26/A clearly corroborate this fact. Furthermore, the goods is searched from the container of PS International at Delhi in presence of PW 5 also found to be of inferior quality.

199.Thus, the totality of the circumstances clearly suggests that the goods exported are of inferior and low quality, in contravention to the declaration made of premium garments worth crores of rupees. The seizure of sample and the statement of witnesses as discussed above categorically suggested that goods of inferior quality were recovered from the containers. In these facts and circumstances mere non examination of the goods by the experts in the field of garments is hardly of any consequence. Even otherwise, the goods recovered are of inferior and low quality, even found torned and for the making any opinion over this fact, there is hardly any need of textile expert. It is the part of routine job of the person who deals in exports of goods and also the official who used to inspect goods for clearance for exports. The DRI officials who examined it and found it with the inferior quality. PW14 and PW34 etc. were also related with export of garments activity, though not the textile expert also opined that samples are of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-93 of 121) inferior quality.

200. Surprisingly, it was suggested to PW8 that goods received were of best quality. But this plea runs counter to the defence of accused that they have nothing to do with those materials. Thus, prosecution able to prove reasonably that the goods which were purported to be exported, on recovery found to be of inferior quality in contravention to the declaration made of premium garments.

Claim of Duty Drawback relating to shipping bills no. 1033401, 1033403, 1033411 & 1033402 by Romil International:

201. As per prosecution case, accused Ram Harchandani for Romil International also exported readymade garments to UAE through above shipping bill numbers in September 1998 and he received the duty drawback payment in current account number 1977 at PNB, ICD, Tugalqabad. The delivery of payment in that account in its subsequent withdrawal is duly proved by the account statement of Romil International and the deposition of PW9 Arvind Singh Sikharwal, officer of that Bank and also admitted by accused Ram Harchandani in his statement u/s 313 Cr.P.C. These shipping bills containing annexure B and other documents were also sent for handwriting expert opinion. The handwriting expert in his opinion Ex. PW27/F1 have opined that writings on questioned documents Q110 i.e, annexure C (Ex. PW27/Z) of Shipping bill no. CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-94 of 121) 1033411 and Q111, second page of this annexure C (Ex.PW27/Y) bears the handwriting of accused Sudhir Nathani, however, the signatures of the exporter at Q112 (Ex. PW27/Z) is not found to be matched with the signature /initial of accused Ram Harchandani. Q113 (Ex. PW27/A1) first page of annexure B of shipping bill No.1033411 also found to be filled up in the handwriting of Sudhir Nathani, Q114 and Q115 (Ex. PW27/A2 & Ex. PW27/A3) second and third page of annexure B also found to be filled in the handwriting of accused Sudhir Nathani. However, Q116 is the place on this document where the signature of exporter is made but not found to be matching with the handwriting expert opinion. This report categorically connects Sudhir Nathani with Ram Harchandani and their previous involvement in the present business for claiming duty drawbacks. It is also found that the signatures of the exporters in none of the bills were found to be matching with the specimen signatures/ initials of Ram Harchandani though clearly entire proceeds of duty drawback were appropriated by Ram Harchandani. This in itself suggests that the accused exporter do not make the genuine signatures on documents and clear inference can be drawn that this might be done to protect themselves in case they got apprehended over false claim, though no such case was investigated over the clearance of these shipping bills. The previous transaction of exporting garments for duty drawback clearly proves the relationship of Romil International i.e, Ram Harchandani with Sudhir CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-95 of 121) Nathani.

202. It is worth to be noticed that though admittedly, accused Ram Harchandani admitted the claim of duty drawback relating to above shipping bills and those shipping bills were processed through CHA M/s Shipwell Cargo Services. However, PW6 Sh Sameer Issar who is examined for M/s Shipwell Cargo Services though stated that Umesh Sharma was his employee, however denied to have processed the above shipping bills. This witness was not cross examined by the accused Ram Harchandani despite the fact that accused admitted that transactions and the processed bills clearly mentions the name of Shipwell Cargo Limited as CHA. This circumstance also corroborates to the fact that the accused persons used to engage the services of the authorised agents without the knowledge of the main CHA just for the purpose appears for filing only, this strengthens the prosecution case on the factum that accused hired the service of PW4 Lalit Roy Dutta for the purpose of filing only..

Use of Statement recorded u/s 108 Customs Act of accused as well witnesses by DRI officials in present criminal proceedings:

203. Ld. counsel for the accused persons submitted that statement of the accused persons recorded u/s 108 of Customs Act cannot be used in the present proceedings as hit by section 25 of Evidence Act. Ld. counsel for accused persons in this regard relied upon the judgments of Apex court in CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-96 of 121) case titled as Noor Aga Vs. State of Punjab & Anr., 2008 (16) SCC 417 (2 Judge Bench). However on the other hand Ld. Public Prosecutor submitted by relying upon the judgment of apex court in case titled, "Raj Kumar Karwal Vs Union of India 1991 Cr.L.J 97 (2 Judge Bench)" that custom officer is not the police officer, therefore, the statement made under section 108 of Customs Act by the accused persons are admissible in present proceedings.

204.Apex court in Raj Kumar Karwal case held that important attribute of police officer is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing report of charge sheet u/s 173 Cr.PC unless officer is invested under any special law with powers of investigation under the code including the power to submit report u/s 173 Cr.PC, he cannot be described as police officer u/s 25 of Evidence Act. The officer other than police officer investigating u/s 53 of NDPS Act with powers of an officer Incharge of police station is not entitle to exercise all the powers under chapter 12 of Cr.PC including the power of submitting a report or charge sheet u/s 173 Cr.PC that being so such a officer is not a police officer within the meaning of section 25 of Evidence Act. In this case DRI officials who have been investigating with the powers of officer incharge of police station u/s 53 of NDPS Act are not found to be police officer within the meaning of 25 of Evidence Act. Apex court in another case titled as CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-97 of 121) Badaku Jyoti Savant Vs. State of Mysore (AIR 1996 SC 1746 ) (5 Judge Bench) held that statement made by an accused u/s 108 of Customs Act to Dy. Superintendent of Customs and Excise would not be hit by section 25 of Evidence Act and would be admissible in Evidence. Dy. Superintendent Customs and Excise is not a police officer within the meaning of section 25 of Evidence Act, and statement is admissible in evidence unless and otherwise the accused successfully takes advantage of section 24 of the evidence act. Apex court in another case titled as Soni Valabh Das Leeladhar & Anr. Vs. Asst. Collector of Customs (AIR 1965 SC 481) (5 Judge Bench) held that where the statement by the accused person before the customs officer who must be taken to be person in authority, were not made on account of inducement, threat or promise they would be admissible u/s 24 of Evidence Act and statement would not be inadmissible u/s 25 of Evidence Act as customs officer are not police officer. Apex Court in case titled Hazari Singh Vs. Union of India (AIR 1973 SC 62) held that conviction of accused on the basis of his confession to customs officer that he attempted to smuggle currency notes is valid.

205. However, apex court in Noor Aga case (Supra) held that custom officer is a deemed police officer when investigating under Narcotics and Psychotropic Substances Act and confession made by the accused before custom officer is hit by section 25 of Evidence Act. In this case accused, an Afghan National, was arrested alleged to be carrying 01 kg and 400 gms CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-98 of 121) of heroin as a member of crew of Afghan Airlines at Raja Sansi airport, Amritsar by the customs officer and during custody he purported to have confessed his guilt on two occasions. It was contended on behalf of accused that confession before the custom authority wholly inadmissible in evidence being hit by section 25 of Evidence act, as section 108 of Customs Act should be read in terms thereof coupled with section 53 and 53 (a) of NDPS Act. In context of NDPS Act, apex court held the procedure laid down under NDPS Act being stringent, therefore must be strictly complied with, and while dealing with contention of use of confession of accused the apex court observed that there is fundamental error committed by the High Court in placing explicit reliance upon the statement u/s 108 of Customs Act. It was held that enquiry contemplated u/s 108 of Customs Act is for the purpose of 1962 act and not for the purpose of convicting the accused under any other statute including the provisions of NDPS Act. In this case the said confession was retracted, however, it is also observed that retracted confession may be relied upon but the rider must be attached thereto i.e, it is to be made voluntarily. In this case apex court observed that customs officers in exercise of their power under NDPS Act is not exercising its power as an officer to check the smuggling of goods, it acts for the purpose prevention of crime and bringing accused to book. In this case, apex court,observed that Barkat Ram case (AIR 1962 SC 276) left open the question as to whether officer CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-99 of 121) of department other than police on whom the powers of officer incharge of police station has been conferred are police officer or not for the purpose of section 25 of the Evidence Act. It is observed that NDPS act is complete code itself. The custom officers have been clothed with the powers of police officer under the act and thus deemed to be police officer for the purpose of section 25 of Evidence Act, however by referring the judgment "Alok Nath Vs. State of Bangal, 2006 (13) Scale 476", it is observed that now a well settled principle of law is that retracted confession is a week piece of evidence, also referred the judgment of "Pon Adithan Vs. Dy Director, Narcotic Control Bureau, AIR 1999 (6) SCC1", wherein the reliance has been placed by High Court that court had used retracted confession as a corroborative piece of evidence not as a evidence on the basis of which conviction can be recorded. Thus, the apex court in the present case, held that conviction of the accused under NDPS Act cannot be done solely on the basis of retracted statement u/s 108 of Customs Act. And confession of this kind weak in nature and can only to be used as corroborative piece of evidence.

206. Apex court in case titled "Union of India Vs. Balmukund and Anr (2009 (12) SCC 161)", in context of statement recorded u/s 67 of NDPS Act held that conviction based solely on self confession or conviction of coaccused on the confessional statement of other co accused should not be based merely on the basis of confessional statement without any independent CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-100 of 121) corroboration especially when retracted.

207. As far as use of confessional statement under section 24 of Evidence Act is concerned apex court in case title "Nishikant Jha Vs. State of Bihar (AIR 1969 SC 422)(5 Judge Bench)", held that inculpatory portion of confession can be accepted if the exculpatory portion is found to be inherently improbable. Furthermore, apex court in case title "Heera H. Advani Vs. Statement of Maharashtra AIR 1971 SC 44 (3 Judge Bench)", held that statement made to custom is u/s 171 (A) Sea Customs Act admissible in evidence against maker in criminal proceedings launched against him. It is held that recording of statements u/s 171(A) Sea Customs Act is not compulsion but only obligation is to state truth which do not make this statement inadmissible in criminal proceedings. It is also held in para 42 that court is bound to take in account not only the portion containing admission but also the explanation which followed, however only inculpatory part can be accepted if exculpatory part found improbable.

208. From the above discussion, it follows that confessional statement can be relied upon for some corroboration if found voluntary in criminal proceedings. However, in present case the contents of the statement of accused u/s 108 Customs Act do not appear to be in nature of confession (i.e. admission of guilt) but appears to be in the nature of giving information for purpose of further enquiry. Furthermore, the statements CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-101 of 121) given by accused persons well prior to arrest by DRI or after release of bail in DRI Case. There is nothing found on record that statement given by witnesses relied in this judgment under section 108 of Customs Act not given voluntarily. Witnesses backed their statement u/s 108 of Customs Act in their testimony before court.

209.Thus, the statement of witnesses or accused u/s 108 of Customs Act recorded by DRI officials can be used in the above discussed manner. Defence of accused Sudhir Nathani and Ram Harchandani that they have retracted their statement u/s 108 Customs Act given to DRI during DRI proceedings and use of statement u/s 108 Customs Act:

210. Accused Sudhir Nathani and Ram Harchandani raised plea that the statements recorded by DRI u/s 108 Customs Act are not voluntary and were taken after torture and they have already retracted the same. These accused persons examined DW1 Rajesh Kumar Nathani, brother of Sudhir Nathani who deposed that on 06.03.99, he alongwith his father R.L. Nathani, Sudhir Nathani and cousin brother Ram Harchandani, when after released on court bail coming out of the court, 56 DRI officials namely Amitabh Kumar, A.K. Singh and others tried to drag them out of the room and thereafter, they informed the same to Ld. ACMM. But lateron, DRI officials caught hold of Sudhir Nathani and Ram Harchandani, and were taken away from the court complex by DRI officials. Thereafter, his father CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-102 of 121) wrote a complaint to SHO (Ex. DW1/A).

211. The complaint Ex.DW1/A made by R.L. Nathani father of accused Sudhir Nathani is addressed to SHO Tilak Nagar wherein it is stated that DRI officials took away accused Sudhir Kumar from Patiala House court complex. In this complaint they have not mentioned the name of Ram Harchandani. Accused persons also examined DW 2 Raj Kumar Record clerk RML hospital who brought MLC's dated 07.03.99 of accused Sudhir Kumar Nathani and Ram Harchandani for proving that they were beaten in custody on 06.03.99 by the DRI officials. However, DW2 Raj Kumar in cross examination stated that he cannot make out from MLC mark DW2/A and B, whether any injury is found to have inflicted on the body of Sudhir Kumar Nathani and Ram Harchandani. Perusal of the said MLC's shows no injury is found on the body of Sudhir Nathani, but mild injury appears to be opined on the MLC dated 07.03.99 of Ram Harchandani. However, as the burden of the proof on accused is not as high as on prosecution, therefore it can be presumed in favour of accused Ram Harchandani that he might be beaten in custody on 06.03.99. Thus, a doubt is created over the voluntariness of confessional statement if any of the accused persons recorded by DRI officials on 06.03.99.

212.Accused Ram Harchandani during his statement u/s 313 Cr.P.C stated that he has retracted his statement taken by DRI officials after his arrest on 06.03.99 and in this regard relied upon letter dated 08.03.99 addressed to CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-103 of 121) A.K. Singh, Asst. Director Nepal Division from Tihar Jail (Ex. DX). This exhibit DX is a photocopy of letter dated 08.03.99 which shows that after illegal arrest he was made to write the statement under dictation word to word without giving any copy thereof, and he has not given such statement and therefore retracting it. This retraction on the face of it shows that it was sent to DRI officials from jail on 08.03.99 relating to his statement recorded on 06.03.99 after his arrest. As per DRI case, accused Ram Harchandani and Sudhir Nathani both were arrested on 06.03.99 by DRI and thereafter released on bail by court on 08.05.1999. However, from this letter the nature of contents of statement is not clear whether it was in confessional in nature or given some information which might help in the investigation.

213.DRI during proceedings recorded statement of accused Sudhir Nathani u/s 108 Customs Act on 22.12.98 (Ex. PW20/B), 24.05.99 (Ex. PW20/B1), 09.09.2000 (Ex. PW20/F), again 24.05.99 (Ex. PW20/L), dated 06.03.99 (Ex. PW22/J). DRI officials recorded the statement of accused Ram Harchandani u/s 108 Customs Act on 31.05.99 (Ex. PW20/D), 11.03.2000 (Ex. PW20/E), 22.12.98 (Ex. PW23/A).

214.Accused Ram Harchandani had retracted his statement recorded on 06.03.99 by DRI officials after his arrest however, in present proceedings the prosecution has not relied upon that statement and neither exhibited the same. The prosecution relied upon the statement of CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-104 of 121) accused u/s 108 Customs act recorded on 22.12.98, 31.05.99 and 11.03.2000. On 22.12.98 when his statement was recorded the accused Ram Harchandani was not called as an accused but called for enquiry as goods of inferior quality on 21.12.98 were recovered in his presence being proprietor of Romil International and in his statement dated 22.12.98, he has categorically stated that he is proprietor of M/s Romil International and the container no. HDMU 2268235 relating to shipping bills nos. 1040825 and 1041824 were examined in his presence on 21.12.98, and on search consignment found to contain old and used garments and some of the garments were torned and some of the torned garments repaired. He further stated that the garments were purchased from Ambey Garments. The accused Ram Harchandani was not an accused on 22.12.98 before the DRI officials and given statement for the purpose of inquiry on 22.12.98 to DRI officials. This statement was never retracted by the accused Ram Harchandani by posting a letter to DRI or in court at any subsequent stage. Thus the voluntariness of this statement cannot be doubted. This statement itself shows that the material recovered from the said container is of inferior quality which supports the prosecution case that accused claimed duty drawback by claiming to send premium garments whereas he attempted to send old and used garments.

215.Subsequent statement of this accused were recorded on 31.05.99 and 11.03.2000, in these he stated that M/s AlGandheer was introduced to him CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-105 of 121) by Vishal International, and he also assisted Sudhir Nathani in purchase of garments to M/s Kanak Export. These both statements are given by Ram Harchandani when he was on bail in DRI case and not in custody, and there is no retraction made by the accused of these statements. All above statements are not confessional in nature but only establishes that the goods as claimed in the present shipping bills were going to AlGandheer and also establishes his relation with Sudhir Nathani. These statements are found to corroborate the case of prosecution case on the factum of use of old, torned and used garments and connivance of Ram Harchandani and Sudhir Nathani.

216. Statement of Sudhir Nathani u/s 108 Customs Act were recorded on 22.12.98 (Ex. PW20/B), 24.05.99 (Ex. PW20/B1), 09.09.2000 (Ex. PW20/F), 24.05.99 (Ex. PW20/L), 06.03.99 (Ex. PW20/J). Accused Sudhir Nathani stated that his statement dated 06.03.99 was taken under coercion, however there is no injury found on the body of the accused nor he exhibited his retraction letter. Though, unexhibited copy of a letter (purported retraction) addressed to A.K. Singh on the same lines as written by Ram Harchandani from jail is on record. Despite this, benefit could be accorded to the accused if this statement falls in category of confession.

217. However, accused Sudhir Nathani statement u/s 108 Customs Act was also recorded on 22.12.98. In this statement he disclosed that he was post CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-106 of 121) Graduate in International Trade from Bhartiya Vidya Bhawan and also having firm called Shellkon Export whose second partner was accused Ram Harchandani and another firm in the name of M/s Romil International is owned by accused Ram Harchandani which is engaged in export of readymade garments. This statement is regarding the giving of some informations and not in the nature of confessional statement. Furthermore, he was not accused at that time, nothing came on record that it was not given voluntary on 22.12.98, hence this statement can be used to corroborate the case of prosecution over the factum of involvement of Sudhir Nathani in export business and doing the same with accused Ram Harchandani.

218. Accused Sudhir Nathani in his statement dated 24.05.99 u/s 108 Customs Act stated that accused Ram Harchandani suggested him the export of old and used garments because he knew the supplier of old and used garments i.e, Ambey Garments and also admitted that he hired the services of Lalit Roy Dutta for filing the shipping bills of Romil International. Thus, cumulative reading of statement of accused Sudhir Kumar Nathani also supports the prosecution case over his involvement in engaging the services of Lalit Roy Dutta for presentation of bills for exporting old and used garments.

Use of Statements of Zaki Anwar u/s 108 Customs Act :

CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-107 of 121)

219. Ld. Counsel for accused Zaki Anwar submitted that statement of Zaki Anwar u/s 108 Customs Act cannot be read against him, however nothing came on record that the statement of Zaki Anwar were not recorded voluntarily or that this accused has given the said statement under force, coercion or inducement. Statement of Zaki Anwar u/s 108 Customs Act was recorded by DRI officials on 06.01.99 (Ex. PW22/C), 19.04.99 (Ex. PW22/D) and 12.03.99 (Ex. PW23/C, mark B). These are duly appreciated in preceeding paras. Accused Zaki Anwar in his statement dated 06.01.99 explained the procedure for examination of goods by the inspector and their subsequent stuffing in the containers and issuance of Let Export order by the Superintendent. In this statement he stated that he has examined and cleared the consignment of Romil International and PS International. He further stated that he knew Sudhir Nathani as a proprietor / partner of Romil International and while clearance of the consignment Sanjeev and Sudhir Nathani were present. This statement was recorded on 06.01.99 and at that time neither he nor Sudhir Nathani were accused in DRI case. This statement also not in the nature of confessional statement but suggest his involvement of clearance of the shipments of PS International and Romil International in presence of Sudhir Nathani.

220. Accused Zaki Anwar in his statement dated 19.04.99 (Ex. PW22/D) confirms his acquaintance with Vinod Gandotra and accused Sudhir Nathani and further his relations with both of them in relation to his duties CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-108 of 121) and also found confronted with the mobile phone records of each other. This statement of accused Zaki Anwar also supports the case of the prosecution and acquaintance of accused Zaki Anwar with Sudhir Nathani.

221. Accused Zaki Anwar in another statement dated 12.03.99 (Ex.PW23/C, mark B) though objected on being photocopy but nothing came in cross examination of PW23 that it is not in handwriting of Zaki Anwar or was given by him under threat coercion or inducement and not voluntary. The mere suggestion that it was 'incorrect' is of no consequence despite being photocopy, as it is in the handwriting of Zaki Anwar. Furthermore, there is no retraction of Zaki Anwar of his statements at any stage. In this statement dated 12.03.1999 also, he again explained the procedure for clearance of the shipments for claiming duty drawback and admitted that on the examination report, he had not taken the signature of CHA /exporter because he thought the details of consigner/consignee were there in annexures, and annexure C is prepared by the exporter and also admitted that the panchnama dated 21.12.98 were carried out in his presence. This statement do not appear to be confessional in nature, however, the information only supports the prosecution case over his involvement in clearance of the goods without the presence of CHA or his authorised representative and also the confirmation of the fact that proceedings of seizure on 21.12.98 was conducted in his presence.

222. The contents of the statements of the accused persons recorded u/s 108 CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-109 of 121) Customs Act do not in any manner appears to be confessional in nature (i.e, admission of guilt) but in the nature of providing information for the purposes of enquiry. The voluntariness of the statement is reinforced from the fact that accused Zaki Anwar denied his involvement of getting payments for the work done from PW7 Vinod Gandotra.

223. Ld. Counsel for the accused Ram Harchandani vehemently submitted that every shipping bill contains appendix IV and two pages of duty drawback declaration which has to be signed by the exporter, but these documents do not bear the details of information nor bears the signature of the accused and these papers were inserted during investigation. Ld. Counsel for the accused submitted that without these fulfilled papers, no duty drawback can be claimed and these bills should have been rejected because of this deficiency at CMC level, when the check list was issued. In present case, as already discussed, PW4 only filed the papers which were lateron collected by Sudhir Nathani and the papers containing annexure B and C relates to export of goods for duty drawback. The entire evidence as discussed suggests that the goods recovered were found to be exported for claiming duty drawback. Therefore in these circumstances, even some unfulfilled documents were found during investigation instead of giving benefit to the accused also corroborates the level of influence of accused persons in the custom department. Furthermore, as already discussed, the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-110 of 121) signed /initialled documents are also not found to be matched with the specimen signatures /initials of accused, thus accused are found to be indulging in practice of submitting those kinds of documents with motive in mind that in case they later got apprehended, they can take these kind of defences.

224. Ld.counsel for the accused Ram Harchandani vehemently argued that the entire acts were committed by PW4 Lalit Roy Dutta by misusing the name of the firm of accused Ram Harchandani and police deliberately made him witness for the reasons best known to them whereas in DRI case he was an accused. During investigation, police found no role of PW4 Lalit Roy Dutta and this fact was explicitly mentioned in the chargesheet. Furthermore, none of the accused persons in cross examination of PW4 have asked him that he has misutilized their names. This plea even otherwise also has no force keeping in view the entire facts and circumstances of purchasing of garments , submission of shipping bills, their processing, inspection and subsequent recovery. Furthermore, there is no plausible explanation can be carved out, what benefit this PW4 will get out from this when the duty drawback payments will straightaway go into drawback account of Romil International and PS International.

225. Ld. counsel for accused also stated that IO have not sent some relevant handwriting of Lalit Roy Dutta and other persons who have filled the upper official portion of the shipping bills. This infirmity even if assumed, CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-111 of 121) as infirmity has no bearing because the entire chain of evidence which came on record clearly suggests that accused Ram Harchandani, Sudhir Nathani and Zaki Anwar connived for clearance of the present export garments. These lapses on the part of the investigation cannot be said to be have any material bearing in the facts and circumstances appeared on record.

226. Prosecution for proving the allegation of bribery of Rs. 3.25 lacs to accused Zaki Anwar banked over PW7 Vinod Gandotra who did not support the prosecution over handing over of Rs. 3.25 lacs to accused Zaki Anwar. It is expected of a person who is known to the accused persons and himself is an accused in the connected case that he will not support the prosecution for these allegations. However, there is a serious lapse on the part of prosecution of not confronting PW7 with his statements recorded u/s 108 Customs Act wherein he clearly disclosed that he has handed over the money to the accused Zaki Anwar on the instance of accused Sudhir Nathani and also got commission for the same.

227. Ld. Counsel for the accused submitted that PW4 Lalit Roy Dutta and PW7 Vinod Gandotra are the accused persons in connected DRI case. Ld.counsel relied upon the judgment of apex court in case titled "Superintendent of Customs and Bhanabhai Kalpabhai Patel, 1992 Cr.L.J 2516(SC)", for the proposition as they are accused in the connected case, therefore their testimony cannot be relied upon in present case. I have gone CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-112 of 121) through that judgment, it is observed by apex court that if the statement of the witness who were accused in the other case are eschewed from consideration there is absolutely no evidence. However, in present case the prosecution case is not entirely dependent upon the testimony of PW4 and PW7. Furthermore, PW7 who is examined for substantiating the allegation of bribe of Rs. 3.25 lacs to Zaki Anwar has not supported the prosecution case on this aspect. PW4 primarily deposed about the filing of the bills relating to duty drawback for both the companies. Thus, this judgment as relied upon by the Ld. Counsel for the accused is of no help in present facts and circumstances.

228. Ld. Counsel for the accused Ram Harchandani submitted that in present case no independent investigation is conducted by IO and he relied upon the entire investigation conducted by DRI, thus, the investigations and subsequent prosecution in present case cannot be acted upon. This submission has no force of law. The investigation evolves collection of evidenciary material. There is no statutory provision that IO cannot rely upon the investigation and material collected by any other agencies. Furthermore, the entire evidence regarding the offence is already collected by DRI officials and nothing found on record that on such evidence, the prosecution could not be launched.

229.The sanctions for prosecution for accused Shiv Kumar and Zaki Anwar was granted by competent authority as deposed by PW16 & PW17 and the CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-113 of 121) said fact is not also disputed by accused persons even in their statement u/s 313 Cr.P.C.

230. Ld.counsel for the accused vehemently argued that DRI official had not filed any complaint against Romil International firm of accused Ram Harchandani. Ld. Counsel submits that DRI filed the complaint under customs Act only over the goods seized of P.S. International. This submission has no force because the present case is not dependent upon the action and inaction on the part of DRI. However, on the other hand, non launching of prosecution by DRI against Romil International in present facts and circumstances appears to be suspicious, thus, Directorate of Revenue Intelligence (DRI) is directed to make a thorough enquiry, why the DRI officials have not lodged any criminal complaint against Romil International and to take action against erring officials, further to launch prosecution against Romil International and the connected accused in accordance to Law.

231. Admittedly, Romil International have claimed duty drawback in the month of September 1998 prior to present transaction through shipping bill numbers 1033401, 1033403, 1033411, 1033402 and initials/ signatures/ handwriting of accused Ram Harchandani was also not found to be matched with his signatures in bank account. This transaction though not under dispute but also appears to be suspicious and it is pertinent to notice that the inspector who examined those goods is also found to be accused CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-114 of 121) Zaki Anwar. Thus, Directorate of Revenue Intelligence is directed to enquire into this transaction also.

232. The first principle of criminal jurisprudence is that in a criminal case the guilt of accused should be brought beyond reasonable doubt. Apex court in "State of West Bengal Vs. Ori Lal Jaiswal, 1994(1)SCC 73", expressed that reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of doubt must commensurate with nature of offence to be investigated and the exaggerated devotion to the role of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Apex court in "Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617", observed that a reasonable doubt is not imaginary, trivial or merely possible doubt but a fair doubt based upon reason and commonsense. In "Shardul Singh Vs. State of Haryana, 2002(8) SCC 372", sounding a note of question against demand of implicit proof in a criminal case and observed that there cannot be prosecution case with caste iron perfection in all aspects and it is obligatory for the courts to analyse, sift and assess the evidence on record with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same without being obsessed by a air of total suspicion of the case of the prosecution. Apex court in "Shivaji Sahebrao Bobade and Anr. Vs. State of Maharashtra, AIR 1973 CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-115 of 121) SC 2622" observed the dangers of exaggerated devotion to rule of benefit of doubt at the expense of social defence and to the soothing sentiments that all acquitals are always good regardless to the justice to the victim and the community.

233. As observed above the reasonableness of the doubt must commensurate with the nature of the offence to be investigated. The present case do not relate to an offence committed under NDPS Act, therefore the strict compliance in terms of that act is not envisaged in present case. Furthermore, the present case also not related to any chance recoveries but a pre planned move to defraud the government of India by claiming false duty drawback. The prosecution has reasonably proved the relationship between Sudhir Nathani and Ram Harchandani and the act of Sudhir Nathani in processing all 8 shipping bills belonging to Romil International and PS International through filing by PW4 Lalit Roy Dutta. The involvement of Zaki Anwar through Sudhir Nathani is also brought on record beyond doubt, who helped in clearing the goods without following due procedures deliberately, though prosecution not able to prove the allegation of bribe given to accused Zaki Anwar but from the circumstances as already discussed, his connivance to provide pecuniary advantage to the accused persons is writ large, thus found to have committed offence u/s 13(1)(d) P.C. Act.

234. The entire gist in case of conspiracy is an agreement to commit an CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-116 of 121) offence. It is an agreement between two or more persons and is a continuing offence and continues to subsist and committed whenever one of the conspirator does an act or series of acts. If pursuant to conspiracy, the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offence. To prove the offence of conspiracy, it is not necessary that each one of the accused must know the every accused but there must be an agreement to do illegal act. The agreement need not to be explicit and can be inferred from the facts and circumstances. The agreement to illegally claim false duty drawback by exporting rags as premium garments is very clear. For this purpose, definite role appeared on record of accused Ram Harchandani who purchased the goods for duty drawback export processed in the name of his firm and furthermore, the processing of the same by Sudhir Nathani and clearance of the same with active connivance of accused inspector Zaki Anwar.

235. As far as role of accused Raman Jaiswal and Shiv Kumar is concerned, the prosecution not able to bring the sufficient evidence to connect them with conspiracy with the above accused persons. None of the witnesses have deposed any role of accused Raman Jaiswal. He is not connected through evidence in purchasing the goods or processing of bills through Sudhir Nathani or stuffing and clearance through Zaki Anwar. The container which is found to contain the articles belonging to PS CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-117 of 121) International was not searched in his presence nor he was called at the time of search on 29.12.98. Furthermore, in his statements u/s 108 Customs Acts as recorded by DRI, nothing substantial appears against him to connect him with the present offence. The alleged containers were also not booked in the name of PS International. In these circumstances, mere connection of this accused through handwriting or some portions in the filled up forms of shipping bills relating to PS International is not sufficient to prove his involvement in present case, thus considering the entire facts and circumstances he is entitled for benefit of doubt, hence acquitted from all the charges.

236. The evidence which comes against accused Shiv Kumar is that he marked the goods for inspection to accused Zaki Anwar and thereafter, passed the 'Let export order' without himself examining the goods just upon the basis of the inspection report of Zaki Anwar. It has come in the evidence that normally the Superintendent is not in practice of inspecting the goods and has to rely upon the reports of the inspector. Furthermore, there is no allegation against him for any connivance with accused Sudhir Nathani or inspector Zaki Anwar for clearance of the goods. Furthermore, accused Shiv Kumar not even made accused in DRI case also. Prosecution against him was lodged on the basis of the above alleged omission conducted by him while discharging his duties. From the evidence on record as already discussed the omissions of accused Shiv Kumar do not CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-118 of 121) appear to be of such a nature to make him criminally liable for the offence charged. Prosecution unable to prove beyond doubt the charges levelled against him, hence he is entitled for benefit of doubt and acquitted of all charges accordingly.

237. The evidence on record categorically shows that the accused Ram Harchandani, Sudhir Nathani in connivance with Zaki Anwar had attempted to cheat the government exchequer by filing forged declaration that they are sending premium garments for export whereas attempted to send inferior quality/ rags in three containers of estimated value around Rs 5,93,400/ against declared value of US$ 2,52,675/ equivalent to Rs. 1,06,88,152/ in first container, Rs. 4,33,695/ against declared FOB value of Rs. 1,06,50,082.50/ in second container, Rs. 5,88,000/ against declared value of Rs. 1,07,54,774/in third container, thereby claimed Rs. 39 lacs for duty drawback by Romil International and Rs. 19 lacs by P.S. International. However, the goods were seized before any payment of duty drawback claim made to the accused persons.

238. Though, the prosecution able to prove its case beyond reasonable doubt but it is duty of this court to point out serious lapses conducted during investigation or prosecution of the present case. The prime allegation of the prosecution is that a bribe of Rs. 3.25 lacs given to accused Zaki Anwar by PW 7 Vinod Gandotra on behalf of Sudhir Nathani. It is natural that PW7 Vinod Gandotra who is known to accused Sudhir Nathani and CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-119 of 121) also accused in DRI case will not support the prosecution over this allegation, thus it is duty of investigation officer that he must also investigate over the corroborative evidence for the same like the mobile call records of the conversations at the relevant time or prior or after to that between accused Zaki Anwar, Sudhir Nathani and PW7 Vinod Gandotra. The mobile call record were obtained by DRI officials for enquiry in its proceedings but police have not made use of those records. This is a serious lapse on the part of investigation. Furthermore, during prosecution evidence important statement of witnesses recorded u/s 108 Customs Act were not put to the witness in prosecution evidence. The previous shipping bills of Romil International which were also cleared by Zaki Anwar, but not proved through PW10 who only named the Superintendent M.S. Bhatia not accused inspector Zaki Anwar who inspected the goods. Again said, these lapses has no impact on otherwise credible case of prosecution appeared on record.

239. The prosecution able to prove its case beyond doubt that accused Ram Harchandani, Sudhir Nathani in connivance with Zaki Anwar have managed to clear the spurious goods in place of genuine/ premium goods, though apprehended even before the goods exported out of territory of India and also before the claim of duty drawback finalized.

240. In view of the above findings, I hold:

(i) Accused Ram Harchandani, Sudhir Nathani and Zaki Anwar CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-120 of 121) guilty of offence punishable under Section 120B read with Section 13(2) and 13(1)(d) PC Act and section 420/511 IPC read with 468 & 471 IPC.

(ii) Accused Zaki Anwar guilty of offence punishable under Section 13(2) read with Section 13(1)(d) PC Act;

(iii) Further, accused Ram Harchandani and Sudhir Nathani were also found guilty of substantive offences punishable under Section 420/511 IPC and under Section 468, 471 IPC.

241. Accused Ram Harchandani, Sudhir Nathani and Zaki Anwar convicted accordingly, however accused Raman Jaiswal and Shiv Kumar are acquitted of all charges.

242. Ahlmad is directed to send the copy of this judgment to Directorate of Revenue Intelligence with direction to DRI to initiate action in terms of paragraph no. 230 & 231. File be consigned to Record Room. Announced in the open Court on this 4th March 2015. (AJAY KUMAR JAIN) Special Judge (PC Act):

CBI01 :PHC :New Delhi CC No. 37/10, CBI Vs. Shiv Kumar etc., Case ID No.02403R0058972003, RC No. DAI-1999-A-0026,CBI/ACB/New Delhi, (pg-121 of 121)

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Cc No. 37/10, Cbi vs . Shiv Kumar Etc., Case Id ... on 4 March, 2015