Bangalore District Court
C.C./21463/2012 on 9 October, 2015
IN THE COURT OF THE XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE : BANGALORE.
-: Present :-
SRI.SABAPPA, B.Com., LL.B., (Spl)
XVII Addl.Chief Metropolitan Magistrate, Bangalore.
C.C.No. 21463/2012
09th day of October, 2015
COMPLAINANT :
State by Central Bureau of Investigation,
Anti Corruption Branch, Bangalore.
[By learned Addl. Public Prosecutor,
Bangalore.]
/ Versus /
ACCUSED :
Stephen S.Rasario @ Stephen Stanislaus
Rosario Son of Late of Savari Muthu
Stanislaus, Major, R/at No. 41, 1st floor,
Mullai Street, Priyadharshini Nagar, Minar
Mandapam, Puducherry.
Proprietor of M/s. Zandra Trading
Company, D-43, 2 nd Main Road,
Velumurugan Nagar, Kosapalayam,
Pondicherry - 605013.
[By Sri. K.S.J Advocate]
*****
2 C.C.No.21463/2012
JUDGMENT
This is the charge sheet submitted by Deputy Superintendent of Police, CBI, ACB, Bangalore, against the accused for the offences punishable under Section 420 of Indian Penal Code and under Section 7(1)(a)(ii) of Essential Commodities Act, 1965 r/w Section 25(1) & (2) of Fertilizer Control Order, 1985 and under Section 132, 135 and 135A of Customs Act, 1962.
2. Brief facts of the prosecution case is that, during the year 2008 accused No.1 proprietor of M/s Zandra Trading Company, Pondicherry had entered into a criminal conspiracy with unknown public servants and others and cheated Government of India in the matter of export of 150 MT of Muriate of Potash (MOP) also known as potassium chloride, a restricted item for import and export, actually worth of Rs.52.50 lakhs without refunding the subsidy amount of Rs.19,78,814/- granted by the Government of India and by falsely declaring the same as industrial salt worth of Rs.32,71,186/- in 6 containers covered under shipping bills bearing No.2232182 dated 19.05.2009 and No.2232369 dated 20.05.2009 under Custom Tariff Code 3 C.C.No.21463/2012 No.28273990 instead of 31042000, thereby violated the DGFT notification No.30 (RE-2003)/2002-2007 dated 28.01.204 and caused wrongful loss to the Government of India to the tune of Rs.37.50 to 45 lakhs and corresponding wrongful gain to the accused person.
3. Accused No.1 is the proprietor of M/s Zandra Trading Company, having its business at Pondicherry, later on he has changed the address as D-No.43, 2nd Main Road, Velumurugan Nagar, Kosapalayam, Pondicherry. He was issued with the certificate of Import Export Code bearing No.2506000879 on 22.12.2006 for doing export business in the name of M/s Zandra Trading Company by the office Joint Director General of Foreign Trade, Pondicherry. However, no license for import export of potassium Chloride (MOP) have been issued to M/s Zandra Trading Company by the Pondicherry office of JDGFT. Further he also got registered M/s Zandra Trading Company with the jurisdictional commercial tax office w.e.f. 12.01.207 and the item industrial salt was added to it's list of business w.e.f 01.02.2009. He was maintaining current account No.4072320000327 in the 4 C.C.No.21463/2012 name of M/s Zandra Trading Company with HDFC Bank Ltd., Pondicherry.
4. During the period from 29.10.2008 to 20.05.2008 accused No.1 attempted to export in the name of his proprietary concern M/s Zandra Trading Company, Pondicheery, total quantity of 1,34,25,000 KGs (13.425 Tonnes) of Potassium Chloride (Muriate of Potash), a restricted item for export by misdeclaring the industrial salt as different varieties of industrial salt to Malaysia and Singapore vide shipping bills No.28273990, which actually related to other chlorides instead of RITCNo.31042000 through CHA M/s Shannu Ponnappa without having any license issued by the office JDGFT, Pondicherry to do the export and with a malafide intention to cheat the Government of India in the matter of subsidy already released to the importers thereon. All the export documents were filed and the export cargo were cleared at ICD, Bangalore for shipment to the respective consignees/importers through Chennai gate way Port. 5 C.C.No.21463/2012
5. Since the shipping bills were free shipping bills, the consignments were not opened for physical examination by the customs at ICD, Bangalore. However, the consignments were only inspected by the customs officials as per the instructions given by the system and the mark and No. and No. of packets as declaration were verified. Since the mark and No. and No. of packets were found tallying with the declaration and since the industrial salt was not included in the list of prohibited/restricted goods, the consignment was allowed to be exported by the customs officials.
6. During the period from 08.12.2008 to 05.05.2009 and on the request of accused No.1, the samples of different varieties industrial salt had been sent to M/s SGS India Pvt. Ltd., Bangalore, a private laboratory, for analysis and report. As per analysis reports of M/s SGS India Pvt. Ltd., the industrial salt sent for analysis by the exporter was mainly composed of potassium chloride, a restricted item for export as per DGFT notification No.30/2003 dated 28.01.204. Through these analysis reports had been submitted to the customs officials at ICD, Bangalore along with other export documents, the exporter did not classify the export goods 6 C.C.No.21463/2012 under the correct RITC No.31042000 and deliberately and fraudulently misdeclared the export goods as industrial salt under RITC No.28273990. On the instructions of Sri V. Subrmanian, the then Asst. Commissioner of Customs on 29.03.2009, samples were drawn in respect of export goods covered under the shipping bills bearing No.2225605 dated 29.03.2009, No.2225606 dated 29.03.2009 and No.2225607 dated 29.03.2009 of M/s Zandra Trading Company and got them tested from the Geological and Metallurgical Laboratories, Bangalore. The result of the chemical came to know that, the material which was exported by the accused is potassium chloride.
7. Before allowing the last two consignments covered under SB Nos. 2232182 dated 19.05.2009 and No.2232369 dated 20.05.2009 under Test Bond and Bank Guarantee, samples were also drawn by the customs officials and sent to Geological and metallurgical Laboratories, Bangalore and Chemical Examiner Grade II, custom house, Chennai for testing and the results of the same. On the instructions of customs officials at ICD, Bangalore, the 6 containers covered under shipping bills bearing No.2232182 dated 19.05.2009 7 C.C.No.21463/2012 and No.2232369 dated 20.05.2009 of M/s Zandra Trading Company were held back at Chennai and later they were called back to Bangalore ICD. After the receipt of 6 containers at ICD and the RT1 and TR2 copies of the shipping bills from M/s Forbes & Company Ltd., the containers were opened and examined by Sri K.T. Pakshirajan, the then Superintendent of Customs, Central Intelligence Unit (CIU), Office of Commissioner of Customs, Bangalore on 05.12.2009. The containers were found containing items declared as industrial salt and the same were seized on the reasonable belief that, the same was Muriate of Potash (MOP) along with the containers under a mahazar dated 05.12.209. The seized six containers contained 150 MTs of goods declared as industrial salt valued approximately at Rs.32,71,184.75 and the value of 6 containers having 20 ft. dimension was about Rs.12.00 lakhs. Subsequently, on 29.12.2009, Sri Vikas R. Gayachari, Inspector, on being deputed by Sri K.T. Pakshirajan, drew representative samples from the seized containers through Sri G. Ramaswamy, Fertilizer Inspector and Agriculture Office, Bangalore in the presence of two independent 8 C.C.No.21463/2012 witnesses and others. The samples so taken were got examined by Sri G. Ramaswamy through the Fertilizer Control Laboratory, Bangalore and the test reports received from Sri G.Ramaswamy indicated that, the item under export was Muriate of Potash (MOP) or potassium chloride, a restricted item.
8. After adjudication proceedings, the Commissioner of Customs, Bangalore passed an order-in-original bearing S.N.o.12/2011 Cus.Adj. dated 31.05.2011. As per the Order- in-original passed by the Commissioner of Customs, the export goods covered under shipping bill Nos.2232369 dated 20.05.2009 and No.2232182 dated 19.05.2009 of M/s Zandra Trading Company were absolutely confiscated and a penalty of Rs.15,00,000/- was imposed on accused in terms of Sections 114(i) of Customs Act, 1962. Thereafter, after due approval from the Sub-Divisional Magistrate, Bangalore North Sub-Division, the confiscated goods were sold in E- auction conducted through MSTC, a Government of India undertaking to the holders of license issued by Joint Director of Agriculture as per the Fertilizer Control Order, 1985. The seized containers were also vacated and released by the 9 C.C.No.21463/2012 customs officials at ICD, Bangalore to M/s Forbes & Company Ltd.
9. The Central Government provides subsidy on potassium chloride (MOP) and other fertilizers for the purpose of agricultural use and that in case of use of fertilizer for purposes other than agriculture, permission from the Government of India is essential. All the subsidy and fixation of MRP on fertilizers are monitored by the Government of India and the details of MRP and subsidy rate for potassium chloride (MOP) as given by the Government of India from October, 2008 to May, 2009 are mentioned as per the report in the charge sheet.
10. Form the test reports received from the Geological and Metallurgical Laboratories, Bangalore, M/s SGS India Pvt. Ltd, Bangalore and Chemical Examiner, Customs house, Chennai, it is evident that, the export goods was composed of mainly potassium chloride and the test reports received from FCL, Bangalore conclusively established that, the industrial salt being export by M/s Zandra Trading Company was actually potassium chloride (MOP) conforming to the 10 C.C.No.21463/2012 specifications of Fertilizer Control Order. Accused has fraudulently exported/attempted to export potassium chloride (MOP) a restricted item in the guise of industrial salt in the name of his business concern M/s Zandra Trading Company without having any license to do so from the DGFT and without remitting back the subsidy amount and cheated the customs authorities by way of misdeclaration of export goods and also caused wrongful loss to the extent of Rs.38,30,62,237.50 by way of subsidy to the Government of India and corresponding wrongful gain for itself. By the above acts, accused has committed the offence of cheating, misdeclaration of export goods to customs and fraudulent export/attempt to export a restricted item without any license from the DGFT. The Commissioner of Customs, Bangalore has accord sanction by virtue of the provisions of section 137(1) of Customs Act, 1962, has accorded sanction for the prosecution of accused for the offence punishable under Section 132, 135 and 135 A of Customs Act, 1962. Hence accused may be punishable under Section 420 of Indian Penal Code, under Section 7(1)(a)(ii) of Essential Commodities Act, 1965 r/w Section 25(1) & (2) of Fertilizer 11 C.C.No.21463/2012 Control Order, 1985 and under Section 132, 135 and 135A of Customs Act, 1962.
11. After receipt of the charge sheet, this court gone through the documents and materials available on record and come to the conclusion that, there are sufficient materials to proceed against accused, hence this Court took cognizance against the accused for the alleged offences as stated in the charge sheet and registered the case in 3rd register and issued summons to the accused. After receipt of the summons, accused appeared before the court through his respective counsel and filed the bail application under Sec.437 of Cr.P.C. It is objected by the prosecution. The Court has gone through both the sides contentions on the bail application and objection, and passed necessary orders, accused enlarged on bail by executing personal bond of Rs.50,000/- with two solvent sureties, the conditions is compiled by the accused. Copy of charge sheet served on accused under Section 207 of Cr.P.C. Later on matter was posted for hearing before charge. This Court heard on both sides, passed orders on the hearing on both the sides and come to the conclusion that, there are sufficient materials to 12 C.C.No.21463/2012 proceed against the accused as well as this case is fit for trial. Hence, the matter is posted for charge. The charges were read over and explained to the accused in the language known to him. He has pleaded not guilty and claims to be tried. Hence, the case posted for prosecution evidence. This Court has examined C.W.1 to 3 and got marked exhibits and issued summons to other witnesses. In the meantime, this Court received order from Hon'ble District Court that, the matter is stayed until the next date of hearing in the Criminal Revision Petition filed by the accused in Crl.R.P.No.317/2013. Again this Court received the order from Hon'ble District Court that, the Criminal Revision Petition filed by the accused is dismissed. Again this Court proceeds to record the evidence of prosecution witnesses.
12. In order to prove the case against the accused, the prosecution has examined PWs.1 to 24 and got documents marked at Ex.P.1 to Ex.P.233. After closure of prosecution evidence, this Court recorded the statement of accused under Section 313 of Cr.P.C, accused denied the version of the prosecution witnesses and submitted no evidence. Therefore, the case is posted for arguments. 13 C.C.No.21463/2012
13. Heard the arguments on both sides.
14. Now, the points that arise for my consideration are as under -
1. Whether the prosecution proves beyond all reasonable doubt that, accused No.1 is the proprietor of M/s. Zandra Trading Company situated at Pondicherry, he has obtained certificate of Import Export Code bearing No. 2506000879 dated 22-12-2006 for doing export business in the name of M/s Zandra Trading Company, Pondicherry. However, no license for import and export of Potassium Chloride (Muriate of Potash) have been issued to A-2 company by the office of DGFT office. During the period from 29.10.2008 to 20.05.2009 accused No.1 attempted to export total quantity of 1,34,25,000 Kgs. Of (13,425 Tons) potassium Chloride ( muriate of potash) a restricted item for export, in the guise of misdeclaring the industrial salt to the foreign countries through different agencies without having any license issued by the GDFT, Pondicherry to do the export and with a malafide intention to cheat the Government of India in the matter of subsidy already released to importers thereon. All the export documents were filed and the export cargo were cleared at ICD, Bangalore for shipment to the respective consignees/importers through Chennai gateway port and thereby committed an offence punishable under Section 420 of Indian Penal Code?
2. Whether the prosecution proves beyond all reasonable doubt that, since the shipping bills were free shipping bills, the consignments were not opened for physical examination by the customs at ICD, 14 C.C.No.21463/2012 Bangalore. However, the consignments were only inspected by the Customs officials as per instructions given by the system and the marks and numbers and number of packets as per declaration were verified. Since, the marks and numbers and number of packets were found tallying with the declaration and since the industrial salt was not included in the list of prohibited/restricted goods, the consignment was allowed to be exported by the customs officials. During relevant period as mentioned above, the accused No.1 has sent samples to different varieties of Industrial salt had been sent to M/s. SGS India Private Limited , Bangalore, as private laboratory, for analysis and report . As per these analysis Reports of M/s SGS India Private Limited, the industrial salt sent for analysis by the exporter was mainly composed of Potassium/potassium chloride, a restricted item for export as per DGFT notification. Though these Analysis Reports had been submitted to the Customs officials at ICD, Bangalore along with other export documents, the exporter did not classify the export goods under the correct RITC No. 31042000 and deliberately and fraudulently misdeclared the export goods as Industrial salt under RITC No. 28273990 and thereby committed an offence punishable under 7(1)(a)(ii) of Essential Commodities Act, 1965?
3. Whether the prosecution proves beyond all reasonable doubt that, on the instructions of Sri Subramanian, the then Assistant Commissioner of Customs, samples were drawn in respect of the export goods covered under the shipping bills bearing No. 2225605 dated 29.03.2009, No. 2225606 dated 29.03.2009 and No. 2225607 dated 15 C.C.No.21463/2012 29.03.2009 of M/s. Zandrda Trading company and got tested from the Geological and Metallurgical Laboratories,Bangalore. The result of the samples were identified by the officers, it clearly shows the potassium chloride contains in the samples as per the testing report. Before allowing the last two consignments covered under SB.Nos.
2232182 dated 19.05.2009 and 2232369 dated 20.05.2009 under test bond and Bank guarantee, samples were also drawn by the Customs officials and sent to Geological and Metallurgical Laboratories, Bangalore, Chemical Examiner, Chennai, for testing and the results of the same are the chemical composition of the sample indicates the material to be potassium chloride, but, the visual observation and chemical characteristics suggests the material to be of technical grade. Chemical examiner, Chennai gave result as sample is in the form of white coarse powder. It is composed of potassium chloride together with small amounts of compounds of sodium, Magnesium and calcium. Since no literature was available regarding Industrial salt, the chemical examiner advised for seeking expert opinion from the Regional Fertilizer control Laboratory, Ministry of Agriculture, Govt. of India, Chennai on the point as to whether the goods merit classification as straight Potassic Fertilizers-potassium chloride (Muriate of Potash) all grades or otherwise. The material is naturally appearing mineral, which is the product of a mining industry. It is identified as naturally occurring inorganic chemical compounds and thereby committed an offence punishable under Section 25(1) & (2) of Fertilizer Control Order, 1985 ?
16 C.C.No.21463/2012
4. Whether the prosecution proves beyond all reasonable doubt that, on the instructions of the Customs officials at ICD, Bangalore the containers covered under Shipping Bills bearing No. 2232182 dated 19.05.2009 and No. 2232369 dated 20.05.2009 of M/s Zandra Trading Company were held back at Chennai and later, they were called back to Bangalore ICD. After the receipt of six containers at ICD and the TR1 & TR2 copies of the shipping bills from M/s. Forbes & Company Limited, the containers were opened and examined by Sri K.T.Pakshirajan, the then Superintendent of Customs, Central Intelligence Unit, office of the Commissioner of Customs, Bangalore on 05.12.2009. The containers were found containing items declared as Industrial Salt and the same were seized on the reasonable belief that the same was Muriate of Potash along with the containers under a mahzar dated 05.12.2009. The seized six containers contained 150 MTs of goods declared as industrial salt valued approx at Rs.32,71,184.75 and the dimension was about Rs.12 lakhs. On 29.12.2009 Inspector drew samples from the seized containers through Sri G.Ramasway, Fertilizer Inspector and Agriculture officer, Bangalore in the presence of two independent witnesses. The samples so taken were got examined by the Inspector and the test reports received from Sri G.Ramaswamy indicated that the item under export was Muriate of Potash (MOP)/ or potassium chloride , a restricted item. After adjudication proceedings, as per the order in original passed by the Commissioner of customs, the export goods covered under shipping bill Nos. 2232369 dated 20.05.2009 and 2232182 dated 19.05.2009 of M/s Zandra Trading Company were absolutely 17 C.C.No.21463/2012 confiscated and a penalty of Rs.15,00,000/- was imposed on accused in terms of Section 114(i) of Customs Act, 1962. From the test reports received from Geological and Metallurgical laboratories, Bangalore M/s SGS India Private Limited, Bangalore and Chemical Examiner, Chennai, it is evident that the export goods (industrial salt) were composed of mainly potassium chloride and the test reports received from FCL, Bangalore conclusively established that, the Industrial salt being exported by M/s Zandra Trading Company was actually potassium chloride (MOP) conforming to the specifications of Fertilizer Control Order.
The accused fraudulently exported/attempted to export potassium chloride a restricted item in the guise of industrial salt in the name of your business concern without having any license to do so from the DGFT and without remitting back the subsidy amount and cheated the Customs authorities by way of mis-
declaration of export goods and also caused wrongful loss to the extent of Rs.38,30,62,237.50 by way of subsidy to the Government of India and corresponding wrongful gain for itself and thereby committed an offence punishable under 132, 135 & 135A of the Customs Act, 1962 ?
5. What order?
15. My answers to the above points are as under:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
18 C.C.No.21463/2012
Point No.5 : As per final order, for
the following reasons :
:REASONS:
16. Points No.1 to 4 : I would kike to take points
No.1 to 4 together for discussion to avoid repetition of facts and evidence.
The learned APP vehemently argued and submitted that, the accused No.1 is proprietor of M/s Zandra Trading Company, he has exported a restrict item MOP on guise of industrial salt by claiming subsidy, as per shipping bills bearing No. 2225605 dated 29.03.2009, No. 2225606 dated 29.03.2009 and No. 2225607 dated 29.03.2009. It is came to notice by the customs officials and initiate proceedings against the accused, write a letter to Chennai to return the containers which was tried to exported by the accused. The said containers opened and took the materials. It is noticed a restricted item MOP and seized the same by preparing mahazar by the customs officials. On the request of customs department, agricultural officer Sri Ramaswamy went to the ICD, Bangalore and he has take the samples from the 6 containers by preparing mahazar and same has been sent to 19 C.C.No.21463/2012 the lab, the lab report issued by the Agricultural department shows that, it is a restricted item as MOP. All these facts are corroborated by the evidence of prosecution witnesses as well as documents.
17. P.W.1 to 3 deposed that, as per application submitted by the accused, they have gone through the same and issued export/import code to the accused. The learned APP further submits that, P.W.4 is important witness in this case. He was working as Assistant Manager in Pacific Sea and Skyline Pvt. Ltd. He has identified the shipping bills as well as other important documents marked through this witness at EX.P.4 to 125. He has prepared all these shipping bills, packing list, SDF and other necessary documents while submitted to the customs department as per instructions of accused. P.W.5 is Managing Director of Pacific Sea and Skyline Pvt. Ltd., he has also identified the papers as well as cargo and support the case of the prosecution. P.W.6 is also deposed that, as the accused was exported a restricted item by misdeclaring as industrial salt.
20 C.C.No.21463/2012
18. P.W.7 deposed that, he has seized 6 containers belong to the M/s Zandra Trading Company as per instructions of Higher Authority. He is also conducted search in the office of Pacific Sea and Skyline Pvt. Ltd. P.W.8 deposed that, he has prepared mahazar at ICD, Bangalore as per instructions of P.W.7 and put the signature on the mahazar. P.W.9 also deposed that, as he has received a letter from the customs department as well as obtained samples and sent to analysis and submitted the report. P.W.10 - Agricultural Officer deposed that, he has take the sample from the 6 containers belongs to the M/s Zandra Trading Company. He has prepared J & K form. He has submitted the same for lab for test and obtained test report and came to know that, the material which was exported by the accused is a restricted item as MOP.
19. P.W.11 deposed that, she is working as Senior executive in SGS India Pvt. Ltd. She has taken samples and sent to the Chennai lab for test report. She has collected the lab report and handed over to the customs officials. P.W.12 deposed that, he used to submit documents to customs office, ICD and arrange gate pass and identified the shipping 21 C.C.No.21463/2012 bills and other documents. P.W.13 Customs officer deposed that, he has produced some shipping bills of M/s Zandra Trading Company which are marked in this case. As per these documents, he has deposed that, the material which was exported by the accused is a restricted item. P.W.14 - Chemical examiner deposed that, she has obtained samples and allotted to the annalists, after testing the samples, she has collected the same and submit the report to P.W.9. As the material which was tested by their department is a restricted item as MOP. P.W.16 also deposed the same facts.
20. P.W.15 and 17 deposed that, they have submitted some of the documents as requested by the I.O. P.W.18 deposed that, he has provided container to the exporter for exporting the goods as to foreign countries. P.W.19 deposed about the documents as submitted by their officials. P.W.20 - Bank Manager deposed about the account of M/s Zandra Trading Company in their bank as well as account opening form and other documents. P.W.21 is the officer of customs department deposed that, as he has gone through the materials and came to know that, there is a prima facie case against the accused to issue a sanction letter, accordingly he 22 C.C.No.21463/2012 issued sanction letter to prosecute the accused. P.W.22 is also deposed about the rate of subsidy as on the relevant point of time. P.W.23 and 24 IOs deposed that, they have recorded the statement of witnesses as well collecting the documents from various authorities and filed charge sheet against the accused. All these witnesses evidence as well as documents marked through these witnesses at Ex.P.1 to 233 are clearly proved the case of the prosecution beyond all reasonable doubts. There are some minor contradictions and omissions in the evidence of prosecution witnesses and these are not materials to discard the entire evidence and documents and hence accused may be convicted in the interest of justice and equity.
21. The learned counsel for the accused vehemently argued and submitted that, the investigation conducted by P.W.24 in this case is not at all investigation in the eyes of law. He has reproduced the investigation as conducted by the customs department by preparing the mahazar as well as taking samples and sent to the laboratory for the test. All the documents furnished by the IO in this case are already collected by the customs department as well as initiated 23 C.C.No.21463/2012 proceedings against the accused. Those documents are collected by the P.W.24 and submitted along with charge sheet. As such, I.O. has not conducted independent investigation and filed charge sheet against the accused. He further submits that, there is no material to show that, the M/s Zandra Trading Company had imported a restricted item as MOP from other countries as well as obtained any subsidy from the Central Government as stated by the prosecution.
22. The learned counsel for the accused further submits that, the prosecution is not able to prove the allegation as stated in the charged sheet, as this accused No.1 has imported a restricted item as well as tried to export the same by obtaining subsidy etc. He further submits that, the customs officer is not a police officer. They have own power to conduct investigation and initiate proceedings against the person who has violated the Rules and Regulations as contemplated under the Customs Act.
23. As per Section 4 of Cr.P.C. -
"All offence under the IPC shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions herein after contained.24 C.C.No.21463/2012
All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigate, inquiring into, trying or otherwise dealing with such offences".
24. As such P.W.24 being CBI Officer has no right to investigate the matter as the offence under Section 132, 135 and 135 A are the offences comes under the Customs Act. Once the alleged offences as stated above, are comes under special enactment, then the customs officer having power to investigate the same and initiate proceedings. He further submits that, before taking the case on hand by the P.W.24, the customs officers are already investigate the matter and proceed against the accused. Such being the case, this P.W.24 has no right to file charge sheet under Customs Act. He further submits that, though the prosecution is able to mark the shipping bills as well as other relevant documents at Ex.P.4 to 125, the customs Commissioner examined as P.W.13, has deposed during course of evidence that, no bill of entry was produced by the prosecution in this case. As well as the documents i.e. shipping bills, packing list, SDF etc are not found the signature of the person who has 25 C.C.No.21463/2012 prepared those documents. As such, prosecution is not able to comply the Section 65(B) of Evidence Act.
25. He further submits that, the prosecution has not examine the person who has execute the shipping bills and not cited as charge sheet witness. The said person is competent person to say about the documents submitted by the accused are genuine or fake. Moreover, the accused has never issued any authorization letter to submit those documents as well as export materials as stated by the prosecution witnesses. As per admissions of the prosecution witnesses, this accused No.1 has never present at the time of submitting documents or exporting the materials as stated by the prosecution witnesses. The prosecution witnesses are categorically admitted that, at the time of preparing mahazar as well as taking samples and seized alleged materials, the accused was not present. The prosecution is not able to examine the LET export officer in this case. The prosecution is not able to examine the persons who are present as a mahszar witness at the time of seizure the containers belongs to M/s Zandra Trading Company as well as drawing the samples from the said containers. The admissions of the 26 C.C.No.21463/2012 prosecution witnesses as well as I.O., it is clearly noticed that, the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt. There are so many lacuna as well as contradictions and omissions in the evidence of prosecution witnesses. As such, accused may be acquitted in the interest of justice and equity.
26. The learned counsel for accused has also submitted written arguments as well as citations.
27. Now, I would like to refer the evidence of prosecution witnesses as well as documents marked in this case. As per the charge sheet allegation, the accused is the proprietor of M/s Zandra Trading Company, which was having business premises at Pondicherry. He has also obtained import/export code No. 2506000879 for doing export business in the name of M/s Zandra Trading Company. But no license for import/export of Potassium Chloride (MOP) has been issued in the name of M/s Zandra Trading Company.
28. On this point, the prosecution evidence P.W.1 to 3 is important to discuss. They have deposed about file 27 C.C.No.21463/2012 containing documents by the accused as well as covering letter import/export code number. The entire evidence of these witnesses noticed that, the competent authority has satisfied the documents submitted by the accused for issuance of import/export code number. On the basis of documents, the competent authority has issued import/export code number. These witnesses are testified by the accused counsel. At that point of time, P.W.1 deposed that, he was not working at the relevant point of time when the import/export code number was issued to the accused. As such, I would like to mention the evidence of this witness is not material to discuss in detail as he has deposed on the basis of documents marked at Ex.P.1. As such, the evidence of this witness is clearly hear say in nature.
29. P.W.2 also deposed during course of evidence that, he has issued import/export code number and license, the same is marked at Ex.P.1(h). In the cross-examination, he deposed that, the documents submitted by the accused is verified by him and submitted the application to the higher authority for sanction of code number. By this contradiction, it is clearly noticed that, P.W.2 is not competent person to 28 C.C.No.21463/2012 issue import/export code number as marked at Ex.P.1(h). The evidence of this witness is also not material to discuss in detail as his evidence discloses that, he has forwarded the documents to the higher authority.
30. P.W.3, though he has deposed that, he has scrutinized documents and issued the certificate at Ex.P.1(b) on 19.03.2009. However, there is a contradiction in the deposition of these witnesses as to who issued the import/export code number. The evidence of these witnesses reveals that, though the competent authority had issued the import/export code number to the accused. However, they were not able to say that, the documents submitted by the accused are false or fabricated and he tried to mislead the authority and obtained license etc. As such, in my opinion, the evidence of P.W.1 to 3 as well as evidence of P.W.24 - I.O. discloses that, the prosecution is not able to made out the case that, the accused has obtained import/export code number by mislead as stated in the charge sheet allegation. As per the deposition of P.W.1 to 3 as extracted in the evidence, merely established the witnesses for identify of signature and marked the documents, itself does not mean 29 C.C.No.21463/2012 that, the accused has violated the Rules and Regulations as mentioned in the license. The evidence of these 3 witnesses clearly noticed that, it is not established the ingredients of the charge sheet allegations as stated by the prosecution.
31. It is further allegation by the prosecution that, during the period from 29.10.2008 to 20.05.2009 accused has attempted to export restricted item in the name of M/s Zandra Trading Company total quantity of 13.425 tonnes of potassium chloride a restricted item without valid license through CHA M/s Shannu Ponnappa with an malafide intention to cheat Government of India in the matter of subsidy already released to the importers.
32. On this point, the prosecution has examined the witnesses P.W.4 to 13. Before going to discuss of the witnesses evidence, I would like to refer the evidence of P.W.4 at this point of time. P.W.4 has deposed that, he was working in Pacific Sea and Skyline Pvt. Ltd. as Assistant Manager. His duty is to receive documents from exporter and after checking the same, he will produce it to CHA. He knows accused No.2 company. Accused No.1 is also used to come to 30 C.C.No.21463/2012 their office for the purpose of export cargos. He further deposed that, for the export of shipment, the exporter has to furnish information like PAN copy, address proof, IEC copy etc. they registered the said document before the customs department. They have to collect export invoice and packing list from the customs department. Thereafter on the basis of said documents, they will prepare check list. Thereafter they will register the check list, invoice and packing list before the customs department. Thereafter they will hand over the documents to CHA. Then the CHA will export cargo. P.W.4 has also identified the shipping bills submitted by the exporters marked in this case at Ex.P.4 to 67. These documents contains check list, Annexure C, Invoice, packing list, Form SDF, analysis report etc. It is no doubt as per the evidence of this witness noticed that, he has received the documents and check the same and produced the same to CHA. After that, he has getting the invoice, packing list and other documents from the customs department and submits to the CHA.
33. This witness is testified by the accused counsel. At that point of time, he deposed that, Pacific Sea and 31 C.C.No.21463/2012 Skyline Pvt. Ltd is not a custom house agent. It is true that, they were giving only logistics support and they were not concerned with the customs work. It is true that, all the documents like shipping bills mentioned in the chief examination are prepared by CHA. It is true that, the best person to speak about the shipping bills is the CHA. It is true that, all the matters relating to filing of shipping bills, presentation before the customs authority, its examination by the customs authority are all know to the CHA. It is true that, he was not entered in the customs notified area and not dealt with anything related to exports. All shipping bills Ex.P4 to 67 and documents were seen by him for the first time in the CBI office when his statement was recorded. He was not aware about the samples taken by the customs officer at the time of examination of the export consignment. Before giving the consignment for export we had obtained test report from SGS as per Ex.P83 to 125. In Ex.P83 to 125 it is not mentioned that testing materials is MOP. Except submitting the document there is no connection to him in this case. They have not received any request from the 32 C.C.No.21463/2012 customs authority to get the materials retested in respect of Ex.P83 to 125.
34. These admissions given by this witness clearly indicates that, he was not actually participated in the writing of shipping bills, invoices, packing list and other documents along with shipment, though, he has deposed about the documents in the chief examination. However, during the course of cross-examination by the accused counsel, he has given admissions is clearly noticed that, he was not proper person to say about the declaration mentioned in the relevant papers are according to specification prescribed under law. At the same time, this witness is not concerned to enter into the specific area of the customs department as well as he was not able to speaks about the genuineness of the documents. Such being the case, merely to identify the documents by the witness itself does not mean that, these documents are established by the prosecution through this witness.
35. As per the admissions of this witness, it is further noticed that, these shipping bills are prepared by CHA, those 33 C.C.No.21463/2012 persons are able to speak about the documents. He further stated that, except submitting documents, there is no connection to him in this case. This evidence does not show any irregularity or mistake done by the exporters. Moreover, he is not able to say that, the item which was mentioned in these shipping bills, packing list are the restricted item. As per documents marked at Ex.P.83 to 128 are the test reports issued by M/s SGS Pvt. Ltd. clearly noticed that, the item which was exported by the exporter is industrial salt.
36. In order to strengthen the evidence of P.W.4, the prosecution examined the owner of M/s Specific Sea and Skyline Pvt. Ltd. as P.W.5. He deposed about the mahazar prepared by superintended of customs on 18.08.2009 at Ex.P.128. He further deposed that, the subordinate officers are prepared the documents. He has identified the accused as well documents marked through P.W.4. He further deposed that, on 18.08.2009 the superintended of Customs have visited their office premises and they have asked him about the documents pertaining to export of cargo by the accused and they have seized the documents and same is marked at Ex.P.128. Further he deposed that, I.O. has 34 C.C.No.21463/2012 requested him to hand over the documents in respect of M/s Zandra Trading Company, accordingly they have handed over those documents which are already marked at Ex.P.127. The certificate of import/export code is marked at Ex.P.130 and 131 etc.
37. This witness is testified by the accused counsel. At that point of time, he admits that, he do not have CHA license. It is true that, his staff has dealt with documents marked in this case as Ex.P.4 to 67, those are prepared by his staff. It is true that, their company is providing only logistics support and handling shipping containers. He was aware Shanu Ponnappa is the license holder of CHA. Their office was handling the documents with Shanu Ponnappa firm. Before 18.08.2009, he has not dealt with documents. It is true that, in routine manner his office used to send the documents, obtain the reports and submit it to the CHA, etc.
38. In the light of cross-examination of P.W.5, the ingredients required to establish. As in established, this Court analyzed the evidence of P.W.4 and 5. It is noticed that, these two persons are not proper persons to depose 35 C.C.No.21463/2012 about the documents relied by the M/s Zandra Trading Company with customs department. Merely they are providing logistic support and handling shipping container as per the information provided by the exporter. At this point of time, the learned counsel for accused draw the attention of this Court. Though the documents marked at Ex.P.128 mahazar conducted by the customs department and some of the independent witnesses are present at that time and they put their signatures on the mahazar, those mahazar witnesses not examined by the prosecution. It is admitted by the prosecution during the course of arguments. This Court is unable to understand on what reason, the prosecution is not going to examine those persons in this case. It is further noticed that, though the customs officer who has conducted the mahazar and obtained signature of the independent witnesses, in spit of it, I.O. has not cited those persons as charge sheet witnesses in this case. It clearly goes to show that, the prosecution is not able to secure independent mahazar witnesses. Moreover, the prosecution examined the person who has prepared the mahazar before the customs officer. Once the prosecution is not able to examine the 36 C.C.No.21463/2012 mahazar witness, it is not possible to hold that, the mahazar is prepared by the customs officer in the presence of mahazar witnesses.
39. In order to establish above facts, the prosecution examined another witness P.W.12. He deposed about the documents submitted to the customs departments. Those are already marked at Ex.P.4 to 67. These shipping bills includes check list, invoice, annexure C, packing list, SDF etc. He was called by the customs officer at the time of drawing samples at Bangalore and he was present and put the signature on the mahazar. It is marked at Ex.P.134 and Ex.P.168. The customs officers have seized the container and draw the mahazar and at that point of time one representative Sri Sathish was also present. Another mahzar prepared by the customs officer at Ex.P.169, it was drawn to take sample from the container and sent it to the lab for the test etc.
40. This witness testified by the accused counsel. At that point of time, he deposed that, on the understanding of Shanu Ponnappa and Pacific Sea and Skylines Pvt. Ltd., he was working in ICD. One Babu and Chengappa are partners 37 C.C.No.21463/2012 of Pacific Sea and Skylines Pvt. Ltd. He has received salary from Pacific Sea and Skylines Pvt. Ltd. The documents sent by Pacific Sea and Skylines Pvt. Ltd. were handed to CHA. He has submitted those documents to customs department and obtained acknowledgment. He further deposed that, at the time of submitting documents as well as drawing the mahazar and seized the materials, the accused was not present. Further he admits that, after verifying the shipping bills, customs officers have put the signature and issued LET export. At any time accused person is not present whenever they submitted documents and LET export issued by customs department. It is true that, in Ex.P.4 to 67 and Ex.P.4 (a) to Ex.P.67 (a) to (f) his signature is not found. He came to know about containers has returned to Bangalore as per the say of CONCOR. It seems that, though he was working in Pacific Sea and Skylines Pvt. Ltd. as employee, but on the understanding of Pacific Sea and Skylines Pvt. Ltd. and Shanu Ponnappa, he was working in ICD, Bangalore. As per evidence of this witness and documents, one thing is noticed that, he was not authorized person to submit any documents on behalf of CHA to the customs 38 C.C.No.21463/2012 department. He was not employee of Shanu ponnappa. Such being the case, he was not aware of the documents as well as materials which was exported by the exporter are restricted item or not.
41. On this point, I would like to mention when the customs officers satisfied the documents, they were issued LET export. In the light of this evidence, The doubt is creates as to whether the accused is authorized to submit these documents to the customs department as well as he was authorized this person to submit the documents on behalf of CHA. The prosecution is not able to examine the customs officer who has assessed the shipping bills and given LET export order. It is admitted by the P.W.24 - I.O. during the course of evidence. In the light of above discussions, I would like to mention that, P.W.4, 5 and 12 are not the proper persons to say about the shipping bills as well as other relevant documents submitted to the customs department are misdeclared by the accused.
42. P.W.24 - I.O. during the course of cross- examination by the accused counsel, he has deposed that, as 39 C.C.No.21463/2012 per Ex.P.4 to 67 all the shipping bills notice the signature of Nandish, Sureh kumar and Banu Srinivas. He has recorded the statements of above persons. However, on perusal of list of the witnesses, it does not noticed that, the I.O. recorded the statements of above persons. It seems that, though the above persons' signatures found on the Ex.P.4 to 67. However, I.O. is not able to record their statements as well as cited them as charge sheet witnesses. It creates doubt about fair investigation conducted by the I.O. The documents which are marked through this witness as well as evidence of the I.O., in my opinion, the persons who are deposed about the documents which are marked at Ex.P.4 to 128, are not relevant to the allegation as stated in the charge sheet. As per these documents, the materials was already exported by the exporter. As per charge sheet allegation, the prosecution has made specific allegation about two shipments. However, these shipping bills and other documents disclosed that, prior to seizure of the materials belongs to M/s Zandra Trading Company. These documents and testimony of the witnesses does not revenant to discuss in detail about the alleged shipping bills as mentioned in the charge sheet. 40 C.C.No.21463/2012
43. It is further case of the prosecution that, the shipping bills were free shipping bills, the consignments were not opened for physical examination by the customs at ICD, Bangalore. The consignments were only inspected by the customs officials as per the instructions give by the system and the mark and number and number of packets as declaration were verified. Since the mark and number of packets were found tallying with the declaration and since the industrial salt was not included in the list of prohibited/restricted goods, the consignment was allowed to be exported by the customs officials. During the period from 08.12.2008 to 05.05.2009 and on the request of accused No.1, the samples of different varieties industrial salt had been sent to M/s SGS India Pvt. Ltd., Bangalore, a private laboratory, for analysis and report. As per analysis reports of M/s SGS India Pvt. Ltd., the industrial salt sent for analysis by the exporter was mainly composed of potassium chloride, a restricted item for export as per DGFT notification No.30/2003 dated 28.01.204. Through these analysis reports had been submitted to the customs officials at ICD, Bangalore along with other export documents, the exporter 41 C.C.No.21463/2012 did not classify the export goods under the correct RITC No.31042000 and deliberately and fraudulently misdeclared the export goods as industrial salt.
44. On this point, I would like to refer the evidence of P.W.11. She deposed that, she was working in M/s SGS India Pvt. Ltd., on different capacities. The said company is doing 3rd party inspections of mineral commodities like coal, coke, iron ore, bulk minerals etc. They have lab at Chennai and if any client submits the sample, they will collect the same and sent it their lab at Chennai. After the examination of the samples, they have received the report and forwarded to the parties. As per the requisition of CBI officers, they have submitted the documents pertaining to M/s Zandra Trading Company and Pacific Sea and Skyliness Pvt. Ltd. Those documents are marked at Ex.P.68 to 126. While handed over the documents, I.O. prepared mahazar at Ex.P.167. As per the report, opinion of analysts is that, percentage of KCI is 99.18%. Like wise other lab reports also show the percentage of KCI above 95%. They have handed over the reports to the clients.
42 C.C.No.21463/2012
45. This witness is testified by the accused counsel. At that time, she deposed that, Chennai office has done the tests and sent the reports. She further admits that, who did the test, nature of test and results of test are only capable of telling by Chennai office. Customs department has not asked test report of M/s SGS India Pvt. Ltd. She has no idea that, customs department has asked to send the samples for third opinion. Except submitting the documents, she has no personal knowledge and the person who did the test in Chennai Office is available to depose about the test. CBI officers have not asked hard copy of the test report as per EX.P.95.
46. At the same time, I would like to refer the evidence of P.W.24 - I.O., though he has deposed about collecting the documents as well as recorded the statements of witnesses. On this allegation, the cross-examination of P.W.24 - I.O. is most important. He has deposed that, he has not recorded the statement of actual person who has conducted the test. It seems that, though the I.O. is having knowledge about the test report submitted by the M/s SGS India Pvt. Ltd., he has fails to record the statement of 43 C.C.No.21463/2012 analysts as well as received independent report from M/s SGS India Pvt. Ltd.
47. At the same time, the entire evidence of P.W.11 discloses that, she was not tested the samples received from M/s Pacific Sea and Skylines Ltd. and M/s Zandra Trading Company. She has merely collected the samples and sent the same to the Chennai office. After testing samples, she has received the report and submitted the same to the concerned party. It seems that, she was not aware of contents of the documents as well as she was not competent person to say that, the test report is based on the method adopted by the analysts is in a proper manner.
48. At the same time, thus this report enclosed by the exporter along with shipping bills, it is submitted to the customs department for examination. Even then the customs department is not able to gone through the report submitted by the exporter. It seems that, the customs department is not properly verified the documents. On examination of Ex.P.68 to 126, it noticed that, M/s Zandra Trading Company is forwarded a letter for examination of the materials as per 44 C.C.No.21463/2012 Ex.P.68 to 77. Analysis report marked at Ex.P.83 to 126. I have gone through the report. It is noticed that, the samples description mentioned as industrial salt technical grade. This test report discloses about the proportions of contents of the materials examined by the analysts. However, the person who has conducted the test and arrived conclusion of the materials is not examined by the prosecution. Mere furnishing the documents by the I.O. from M/s SGS India Pvt. Ltd is not proper way to establish the contents of the documents. As per Evidence Act, the person who examined the materials as well as given analysis report to the department, is the proper person to say about the contents of the materials. P.W.11 received the report from the Chennai office and submitted it to the CBI officers as per their request. It is not proper to ascertain that, P.W.11 is the proper witness to depose the above examination of materials. At the same time, admissions given by the prosecution witnesses as well as other materials, clearly evident on record to show that, the prosecution is not able to establish the above allegations by examining the proper person as well as produce the relevant documents.
45 C.C.No.21463/2012
49. Now, I would like to refer the evidence of P.W.14. She deposed that, she was working as chemical examiner at Chennai. Their office has received the samples from M/s Zandra Trading Company for testing of samples. One Sri T.R. Suresh, testing officer examined the samples under her supervision. After that, she has received test report, same is marked at Ex.P.176. Another test report marked at Ex.P.177. This witness is testified by the accused counsel. At that point of time, she deposed that, she has not personally conducted the test of the material. One Sri Suresh has conducted the test. She has not attached the note made by Sri Suresh along with her report. The sample test materials are not furnished before this Court. She has not submitted the reasons along with the test report. She don't have any personal knowledge in this regard. Sri Suresh is the best person to say about the report.
50. This evidence also indicates that, P.W.14 has not properly explained about the contents and proportions of the materials tested by Suresh. Merely the test report submitted by this witness, itself does not mean that, she is the proper person to depose about the actual contents of the materials 46 C.C.No.21463/2012 examined by one Sri Suresh. Though, the prosecution examined this witness in order to prove the test report. However, the person who has examined the materials is not cited as witness nor examined. It seems that, the evidence of this witness is also hear say evidence.
51. It is further case of the prosecution is that, on the instructions of Sri V. Subramaniany, the Assistant Commissioner of Customs on 29.03.2009, samples were drawn in respect of export goods covered under the shipping bills bearing No.2225605 dated 29.03.2009, No.2225606 dated 29.03.2009 and No.2225607 dated 29.03.2009 of M/s Zandra Trading Company and got them tested from the Geological and Metallurgical Laboratories, Bangalore. The result of the chemical came to know that, the material which was exported by the accused is potassium chloride. On the instructions of customs officials at ICD, Bangalore, the 6 containers covered under shipping bills bearing No.2232182 dated 19.05.2009 and No.2232369 dated 20.05.2009 of M/s Zandra Trading Company were held back at Chennai and later they were called back to Bangalore ICD. After the receipt of 6 containers at ICD and the TR1 and TR2 copies of 47 C.C.No.21463/2012 the shipping bills from M/s Forbes & Company Ltd., the containers were opened and examined by Sri K.T. Pakshirajan, the then Superintendent of Customs, Central Intelligence Unit (CIU), Office of Commissioner of Customs, Bangalore on 05.12.2009. The containers were found containing items declared as industrial salt and the same were seized on the reasonable belief that, the same was Muriate of Potash (MOP) along with the containers under a mahazar on the same day. Subsequently, on 29.12.2009, Sri Vikas R. Gayachari, Inspector, on being deputed by Sri K.T. Pakshirajan, drew representative samples from the seized containers through Sri G. Ramaswamy, Fertilizer Inspector and Agriculture Office, Bangalore in the presence of two independent witnesses and others. The samples so taken were got examined by Sri G. Ramaswamy through the Fertilizer Control Laboratory, Bangalore and the test reports received from Sri G.Ramaswamy indicated that, the item under export was Muriate of Potash (MOP) or potassium chloride, a restricted item. Thereby the accused tried to export a restricted item without having any license to do so from the DGFT and without remitting back the subsidy 48 C.C.No.21463/2012 amount and cheated the customs authorities by way of misdeclaration of export goods and also caused wrongful loss to the Central Government.
52. On this point, the prosecution examined P.W.7, P.W.8, P.W.10, P.W.13, P.W.16, P.W.21 and P.W.24. The P.W.7 - Superintendent of Central Excise deposed that, he has investigated the business transaction of M/s Zandra Trading Company. Thereafter he conducted search at the premises of Pacific Sea and Skylines Pvt. Ltd. and recovered some of the documents in the office and recorded the statement of one Sri Babu and Sri Gopinath under Section 108 of Customs Act. He came to know about the ascertainment done by M/s Zandra Trading Company. He further deposed that, he has searched the house of Manivelu and recorded his statement. He told that, one Uttambhora is supplying all the materials on behalf of M/s Zandra Trading Company represented by the accused. Thereafter, he called Uttambhora, he told that, one Basavaraj from Raichur is helping to supply these materials to M/s Zandra Trading Company. He has identified the letter sent from their office to Pondicherry office, marked at Ex.P.134(1) and he also 49 C.C.No.21463/2012 identified acknowledgements, mahazar, summons, statements of Sri Shanu Ponnappa and other witnesses. He further deposed that, Ex.P.128 - mahazar was prepared by Smt. Arundathi Ram in his presence at the premises of Pacific Sea and Skyliness Pvt. Ltd. As per this mahazar, they have seized the documents pertaining to M/s Zandra Trading Company on various places. He further deposed that, MOP is not available in India, it has to be imported from other countries and it is a restricted item.
53. This witness is testified by the accused counsel. At that point of time, he deposed that, whenever shipping bills filed it has assessed by the proper officer. He has not recorded his statement. 6 containers are affixed with a seal and OTL. It is true that, the record is maintained regarding OTL. His investigation was restricted to this one single in transit export of M/s Zandra Trading Company. Shanu Ponnappa is the CHA of M/s Zandra Trading Company. CHA cannot delegate the work entrusted to him to any other person. He has recorded the statement of Shanu Ponnappa, but he cannot say without seeing the file, whether he has signed on the consignment or not. He has not ascertained 50 C.C.No.21463/2012 who has signed on the consignment. He has not asked any documents from Shanu ponnappa or Specific Sea and Skylines as to who authorized to sign on the concerned documents. He volunteers that, one A. Babu told that, Gopinath is the authorized to sign the records for M/s Zandra Trading Company. He has not recorded the statement of the officer who had permitted for LET export. He has not aware whether any complaint is filed under Section 200 of Cr.P.C. against the accused. He was not aware some of the officials of customs department have been proceeded on departmental side for imposition of major penalty on the accused.
54. This evidence indicates that, though this person has assessed the materials as well as recorded the statements of the some of the witnesses and conducted the mahazar. However, the admissions given by this witness noticed that, he was not properly conducted the mahazar as well as assessed the materials. He has not properly ascertained the person who has assessed the shipping bills submitted by the exporter. He has not properly maintained the OTL numbers when the materials came back to 51 C.C.No.21463/2012 Bangalore and assessed by inspecting as restricted item. He has not kept old OTL numbers and put new OTL numbers to the consignments as per procedure prescribed under the Customs Act. He has not able to record the statement of material witnesses, who are participated in the consignment.
55. The entire evidence of this witness noticed that, though he has conducted investigation as per instructions of V. Subramanian, but he has not properly investigated the matter. At the same time, on going through the mahazar as well as evidence of this witness, it is noticed that, Ex.P.128 - mahazar conducted by this witness, he has obtained signatures of some independent witnesses. Those persons are not cited as witnesses or examined by the prosecution. He further stated that, the shipping bills are signed by the representative of the company, but he has not collected any document by the representative whether M/s Zandra Trading Company has authorized to sign the documents. On the basis of documents, he presumed that, M/s Zandra Trading Company is exported the restricted item.
52 C.C.No.21463/2012
56. The prosecution has also not examined customs officer who has assessed the shipping bills and given LET export orders. The above evidence of prosecution does not establish the ingredients of charge as stated in the charge sheet between 29.02.2008 to 20.05.2009 attempt to export potassium chloride by misdeclaring without having license to cheat Central Government. None of the shipping documents are originals. They are all computer printouts taken out and secondary evidence. Even otherwise this secondary evidence is clearly not setting out all details. This fact is accepted by the witnesses. The concerned persons who have dealt with those shipping bill shave not been examined before this Court. The fact that, there was LET export has not been examined. Hence, misdeclaration or export itself is not established.
57. Nowhere in the deposition of any of the witnesses has there been any person examined from ICD, Bangalore to establish that, an export cargo was brought into ICD, Bangalore. As none of the witnesses examined have revealed this fact, this very fact has stood not proved. On the basis of 53 C.C.No.21463/2012 certain documents marked at EX.P.4 to 67 shipping bills, it is being contended that, there was an export consignment.
58. At the same time, I would like to refer the evidence of P.W.13, though he has deposed that, export can export himself or through CHA and he has to declare the item what he has to export or import. After that, consignment will be examined by the customs officers and customs officer will permit for clearance. It is also clear that, the prosecution has not examined the concerned customs officials related to each of these shipping bills. It is also clear that, the export having been permitted by a specific order known as LET export order. The officer ought to have been examined with respect to the factum of export. The same has not been done. P.W.13 in the cross-examination deposed that, all the shipping bills are relating to exports. These are attested copies. It is not possible to say who has assessed the relevant shipping bills. Original shipping bills are not available in their records. So, he has generated all the shipping bills in their system marked at Ex.P.173. In the light of this evidence, it is noticed that, the prosecution is not able to establish the ingredients of charge as stated in this case. 54 C.C.No.21463/2012
59. At the same time, I would like to refer the evidence of P.W.24 - I.O. He deposed that, one copy of the shipping bills submitted to the HDFC Bank for onward forwarding to RBI is known as exchange control copy. He has not collected the same From RBI. Further he deposed that, he has obtained authorization letter given by the accused to Shanu ponappa to file to customs department. The admissions of this I.O. and in the light of deposition of other witnesses, it is noticed that, these two ingredients of the charge framed by this Court is once again not established.
60. At the same time, I would like to refer the evidence of P.W.8. He deposed that, he has prepared mahazar as per Ex.P.134 in the presence of P.W.7. One Mr. Akhilan and Manjunath R. were present and they put signatures on the mahazar. He has identified the signatures of those persons. As per this mahazar, they have seized 6 containers belongs to M/s Zandra Trading Company. One Sri Ramaswamy, agricultural officer was also present at time of mahazar.
55 C.C.No.21463/2012
61. This witness is testified by the accused counsel. He deposed that, mahazar was prepared for drawing the samples of the materials. On the date of opening the container the OTL's numbers are mentioned in Ex.P.134(5). These OTL's numbers are mentioned after taking the samples from the containers. Ex.P.134(6) is drawn on 05.12.2009 in the presence of P.W.7. At the time of seizing the materials in the container, they have removed the old OTL number and affixed new OTL numbers. He was not aware about the old OTL's number. They are not asked by the CBI officials. The panch witnesses who were present at the time of drawing mahazar marked at Ex.P.134(5) and (6) are different. The witnesses for seizure were not present, when the samples were drawn from the seized container on 29.12.2009.
62. This evidence noticed that, though this person has prepared the mahazar as per instructions of P.W.7 and 10, the independent witnesses are present at the time of preparing two mahazars. Those persons are not cited as witnesses or examined by the prosecution. Merely signature of the independent person obtained on the mahazar, itself does not mean that, the prosecution is able to prove the 56 C.C.No.21463/2012 contents of the mahazar. In every criminal case, whenever prosecution is going to rely upon the mahazar and recovered any material object or documents has as to prepare the mahazar in the presence of independent witnesses and explaining the circumstances why the officer is going to seize those materials to the witnesses, after preparing the same, witnesses are agreed to stand as witness and put signature on the mahazar. Those persons are proper persons to say about mahazar as well as recovery of documents and material object recovered by the I.O. As per the evidence of this witness, one thing is clear that, the prosecution is not able to prove the Ex.P.134 - Mahazar.
63. Now, I would like to refer the evidence of P.W.10. He deposed that, as per requisition of CBI, he has gone to ICD, Bangalore along with customs officials and prepared mahazar on 29.12.2009. He has obtained samples from 6 containers belongs to M/s Zandra Trading Company. The said containers were in the possession of Shanu Ponappa who was the CHA. One Mr. H.R. Ganesh CHA, A.G. Akhilan and Manjunath were also present at that time, they have put signatures on the mahazar. He has drawn 6 samples from 6 57 C.C.No.21463/2012 containers and prepared form J and K, they are marked at Ex.P.144 to 155. All these forms are prepared on the same day. He has submitted the same to the Fertilizer Control Lab for analysis. He has received 6 lab reports from DDA marked at Ex.P.156 to 161. As per analysis report the samples analyzed is MOP. He has also identified the requisition dated 31.12.2009 sbumitting samples for lab, another mahazar prepared by customs officers, letter dated 11.12.2009 and handing over the documents to the CBI. All are marked at Ex.P.162 to 166.
64. This witness is testified by the accused counsel. At that time, he deposed that, at the time of drawing samples in the ICD, Bangalore, accused was not present. As per Ex.P.143, it is not mentioned as to in how many containers samples have been drawn. The person before whom Ex.P.164 was drawn has also signed Ex.P.143. The witnesses are also same. Mahazar EX.P.164 started at 11.00 a.m. and ended by 5.30 p.m. It was similar with Ex.P.143. In Ex.P.164 drawing procedure is not mentioned. As per Ex.P.144, 146, 148, 150, 152, 154 weight and quantity is not mentioned. Witnesses signatures is taken on the samples, but signatures is not 58 C.C.No.21463/2012 found on the documents. He was not dealer of potassium chloride. He has not done specific course to deal with potassium chloride. In Ex.P.46, it is not mentioned as potassium chloride. Except drawing the samples, he has not done anything.
65. The evidence of this witness noticed that, though he has drawn samples and sent to the same to the lab for the test. He is able to say only to the factum of drawing of samples. As the witnesses to these mahazars have not been examined, these samples drawing mahazars have not stood proved in the manner known to Law. Accordingly drawing samples sent for lab for the test, itself does not mean that, this witness is supported the case of the prosecution in order to prove the guilt of the accused.
66. Now, I would like to refer the evidence of P.W.9. He deposed that, he has received the samples and analysis tested the samples in the lab and he submitted the report to the customs on 06.05.2009. The receipt and report are marked at Ex.P.135 to 142. This witness is testified by the accused counsel. At that point of time, he deposed that, 59 C.C.No.21463/2012 based on the lab result, he has issued the test report. CBI has not asked to produce the actual test report done by the analyst. It is marked at Ex.P.136 to 142 these reports does not disclose the methodology adopted by the analyst. He has not actually done the test, but it is done by the analyst. One Mr. Jagan is the analyst, he is not called by the CBI. It is true that, KCL has specific parameters and qualities. There are different grades of KCL. The remnants were not sent to the customs department. Later on CBI or customs has not asked the remnants.
67. This evidence noticed that, this witness deposed on the basis of test conducted by one Sri Jagan. He has not personally conducted the sample test. It seems that, Sri Jagan is the proper person to explain about the contents and proportions of the materials. The evidence of this witness is noticed that, he has simply received the samples and submit the report on the basis of test conducted by Sri Jagan. It seems that, his evidence is hear say evidence.
68. At the same time, I would like to refer the evidence of P.W.16. She deposed that, she has received 60 C.C.No.21463/2012 Ex.P.192 to 195. She speaks about Ex.P.196 to 201. During the course of cross-examination, she deposed that, she has not personally conducted the test. On looking to Ex.P.202, she was not able to say who is the analyst, who has conducted the test. As per instructions of CBI, she was given analysis. The report or values sent by the analyst is not here. Based on that document, she has extracted and put the findings in Ex.P.201 to 207.
69. The evidence of this witness also not proved the case of the prosecution, as this witness is not proper person to say who has conducted the test. In the absence of the manner of test conducted being brought on record nor the person who actually conducted the test being brought and examined, the test certificates Ex.P.190 to 195 and Ex.P.202 to 207 have not been proved. It is no doubt, as per the say of prosecution witnesses as well as customs officers and other officials, noticed that, P.W.10 has drawn the samples in the presence of mahazar witnesses. He has categorically admits that, at the time of preparing mahazar, accused was not present. Moreover, the admissions given by the prosecution witnesses noticed that, the person who has conducted the 61 C.C.No.21463/2012 test is not cited as witness nor examined the said person. There is no impediment on the part of I.O. to examine the analyst who has conducted the test and give his opinion as a MOP. He has not done so. It is admitted by the P.W.24 during the course of evidence. It is further noticed that, the customs officers done part of investigation. Later on, the CBI has suomotto registered the FIR, recorded the statement of witnesses and submitted the charge sheet. On the basis of mahazar and samples, reports of customs officers, it is clearly noticed that, I.O. has not properly conducted the investigation.
70. Now, I would like to refer the evidence of P.W.15. He deposed that, he was working as apprising officer in customs department. He has assisted the commissioner of customs to prepare the file and handover to commissioner and commissioner has passed the orders, it is communicated to the M/s Zandra Trading Company. The said document marked at Ex.P.188. This witness is testified by the accused counsel. At that point of time, he deposed that, He has not been shown the statement of Bhattacharya, Commissioner. Everything made by him is as per instructions of 62 C.C.No.21463/2012 Bhattacharya. Thereafter he has submitted the documents to the CBI. Entire decision making authority is Bhattacharya.
71. The evidence of this witness is not material in discuss, as he was not competent person to say about the facts of the case. He has only assisted the commissioner to prepare the file. He has not having personal knowledge of file as well as sanction order issued by P.W.21. Mere assisting the commissioner, itself does not mean that, this witness is the proper person to depose about the case of the prosecution against the accused. Hence, this evidence of this witness is also not corroborated with other materials and evidence.
72. At the same time, I would like to refer the evidence of P.W.21. He deposed that, he has received the documents and gone through the same and issued sanction for prosecute the accused under Section 137(1) of Customs Act. The sanction order marked at EX.P.228. This witness is testified by the accused counsel. At that point of time, he deposed that, all the documents pertaining to export are submitted by CHA through on line. The CHA authority has 63 C.C.No.21463/2012 obtained the authorization from exporter. It is available in the docket. If that, docket is called for, the availability of the authorization would be known. This indicates that, they were some documents held in the office of customs department, ICD, Bangalore.
73. The I.O. conducted the investigation is not able to secure those documents in order to prove that, the P.W.21 has issued authorization to prosecute the accused. He further deposed that, as per para 8 of the sanction order, adjudication order is dealt with exports. It is true that, as mentioned in para 10 of sanction order, CBI has provided material that for claim of subsidy amount of Rs.38,30,62,237.50 is caused loss to the Central Government. All the documents relating to satisfaction recorded in para 8 of the sanction order have been provided by the CBI. However, these documents are not available before this Court. He further admitted that, the shipping bills Ex.173 does not bear the signature of authorities who had dealt at the relevant point of time. Shipping bills at Ex.P.4 to 67 and the signature of the examiner is not found. Signature of LET export officer is there. He will not recollect whether in 64 C.C.No.21463/2012 each case who so ever was the officer of customs, who have the LET export order, whether his statement was produced before him or not. As per the request of CBI, he has accorded sanction to prosecute the accused under the provisions of Customs Act.
74. This evidence indicates that, though the customs department has already initiate proceeding against the accused inspite of it, P.W.21 has issued authorization to prosecute the accused. It is no doubt, I have already discussed above and come to the conclusion that, once customs department has initiate the proceeding against the accused under the Customs Act, it is not proper to issue authorization to prosecute the accused. On the basis of evidence of above prosecution witnesses as well as relevant documents, one thing is clear that, the prosecution is not able to made out that, the accused is tried to export a restricted item without valid license.
75. The material admissions given by the I.O., clearly noticed that, the accused is not imported the materials, no subsidy was given to him. Import was done by some other 65 C.C.No.21463/2012 person, subsidy was given with that person. The I.O. has not recorded the statement of that person. He has obtained authorization given by accused to subsidy to file the customs department. However, the said authorization not found in the records. All these material admissions as well as documents clearly reveals that, the prosecution is not able to furnish any documentary evidence to show that, the accused has imported a restricted item from other countries. The prosecution witnesses categorically stated that, the restrict item is not available in India. Such being the case, it has to be imported from other countries by the accused or Central Government. It is further noticed that, the prosecution is not able to furnish any documents to show that, the accused has submitted any shipping bills as well as he has claimed subsidy from the Government.
76. In view of the material evidence available on record as well as documents, in my opinion, there are no such documents available on record to show that, this accused authorized the CHA to submit all the necessary documents on his behalf to the customs department and tried to export a restricted item. It is further noticed that, 66 C.C.No.21463/2012 there are no materials on the side of prosecution to show that, this accused was claimed subsidy as stated in the charge sheet. The documents available on record are never disclosed that, this accused has obtained subsidy from the Central Government as well as he has caused loss to the Government of India. Though analysis reports as well as evidence of prosecution witnesses noticed that, the materials which was tested by the analyst is a restrict item. However, the said person is not examined by the prosecution to prove the contents of the test report. Merely, the supervisor submits the report, marked the same in this case, itself does not mean that, it is proved by the prosecution by examined the material witnesses.
77. The prosecution in order to prove the case against the accused, examined some of the circumstantial witnesses as P.W.17 to 22. Now, I would like to refer the evidence of P.W.17. He deposed that, he was working as assistant under the accused. He has handed over the purchase orders to CBI. Those are proforma invoice marked at Ex.P.210. The materials were transported to Malaysia. The agents of Pacific and Sea Skyline Pvt. Ltd. are exporting the materials to 67 C.C.No.21463/2012 Malaysia. He know one Gopinath working in the office of Pacific Sea and Skylines Pvt. Ltd. Seizure memo conducted by Dy.S.P. marked at Ex.P.211, etc.
78. This witness is testified by the accused counsel. At that point of time, he deposed that, he has merely handed over the documents as sought by the CBI. He do not know where the materials was purchased. All the shipping bills was done by shipping agents. He has not gone to ICD any time and he has not signed to any export documents. All the documentation was done by Sri Gopinath. Except providing the documents, he do not have any personal knowledge in this case.
79. This evidence is also not helps to the prosecution to prove the case against the accused. Merely handing over the documents is not sufficient to hold that, the evidence of this witness helped to the prosecution to prove the guilt of the accused.
80. Now, I would like to refer the evidence of P.W.18. He was working as DGM in shipping logistic division of Forbes and Company Ltd, Bangalore. He deposed that, they 68 C.C.No.21463/2012 provided containers to Pacific Sea and Skyliness Pvt. Ltd. After completing the process, they will hand over the containers to them. Then they booked the containers for forward movement by rail or road through CONCOR to gateway Chennai airport. For providing the containers they charge the fee and the forwarder has to pay the said charge. He has received a telephone from Suresh Kumar Superintendent of Customs stating that, they have to hold the container at Chennai port until further instructions. He further deposed that, he called their Chennai office and asked him to tell them to take necessary action of holding the container at Chennai port. Again he received written of communication from Commissioner of customs stating to hold the container at Chennai port until further instructions. They have replied on 28.05.2009 that, they have taken necessary action as instructions of commissioner. One Pakshirajan called him for the purpose of enquiry and to give the statement. He has handed over some documents to the C.B.I. officials as per their request. The same is marked at Ex.P.212.
69 C.C.No.21463/2012
81. This witness is testified by the accused counsel. At that point of time, he deposed that, from 08.12.2008 to 05.05.2009, he has not directly dealt with the documents in respect of M/s Zandra Trading Company. All transactions are between M/s Pacific Sea and Skyliness Pvt. Ltd. and Forbes & Company. What container was used for which customer was known by M/s Pacific Sea and Skylines Pvt. Ltd. The payment transaction was between M/s Pacific Sea and Skyliness Pvt. Ltd and Forbes and Company.
82. This evidences indicates that, there is a letter correspondent between Forbes & Company and Pacific Sea and Skyline Pvt. Ltd. He has never deposed that, the accused involved by taking container as well as exporting the materials. The transaction between Forbes & Company and Pacific Sea and Skyline Pvt. Ltd. Such being the case, it is not proper to discuss in detail about the involvement of the accused in this transaction. It is in between Forbes & Company and Pacific Sea and Skyline Pvt. Ltd. As such, the evidence of this witness is also not possible to hold that, he was actively participated in the alleged commission of offence.
70 C.C.No.21463/2012
83. Now, I would like to refer the evidence of P.W.19. He deposed that, he was worked as superintended in customs Head Quarters, CIU, Bangalore. As per request of CBI officers, he has handed over the documents pertaining to M/s Zandra Trading Company as well letter return by Forbes & Company to the commissioner for release of the seized containers. Those are marked at Ex.P.216. He further deposed that, corresponding letters between Forbes & Company and Pacific Sea and Skyline Pvt. Ltd. as well as customs department Bangalore.
84. This witness is testified by the accused counsel. He deposed that, he was not dealt with seizure in this case. It is true that, from 2008 to 2010 he has not worked in ICD, Bangalore. He has delivered the documents to the CBI as per their request. Except handling over the documents to the CBI, he has not personally dealt with any documents pertaining to this case. All the documents which are exhibited through him are taken from their officer before he joined as superintend of central excise, customs. CBI has not asked to hand over the samples drawn by the customs. 71 C.C.No.21463/2012
85. This evidence clearly noticed that, this witness is not worked in the customs department, ICD Bangalore, at the relevant point of time. He has deposed on the basis of documents available in the office. It seems that, he was not actively participated in the alleged transactions as stated by the prosecution. Merely produce the documents to the CBI, is not enough to prove the contents of the documents. The person who has dealt with the documents is the best person to speak about the contents of the documents. This evidence is also hear say evidence. As such, it is not proper to discuss in detail.
86. Now, I would like to refer the evidence of P.W.20. He deposed that, he was working as Manager in HDFC Bank. He deposed about the current account of M/s Zandra Trading Company and he also furnished the documents as per request of CBI. The account extract of M/s Zandra Trading Company marked at EX.P.224 and 225. He has certified account extract of M/s Zandra Trading Company under Section 2(A) of Bankers book of Evidence Act, marked at Ex.P.226.
72 C.C.No.21463/2012
87. The evidence of Bank Manager is also not helped to the prosecution to prove the guilt of the accused. Merely the examination of Bank Manager is not enough to prove that, the accused has illegally transacted with the bank. There are no materials to show that, the accused has obtained any subsidy through the account extract furnished by the prosecution. It is no doubt that, the accused has opened current account in the HDFC Bank, Pondicherry. The said account is operated by the accused, itself does not mean that, he has fraudulently or intentionly to cheat Government as he has operated the account.
88. Now, I would like to refer the evidence of P.W.22. She deposed that, she was worked as DDA (Fertilizer & Manure) in the commissionarate of Agricuture, Bangalore. As per request of CBI, she has furnished the circulars, details of MRP and subsidy rate of MOP, marked at EX.P.229. She further deposed that, MOP is imported from other countries. Mines are not there in India. This witness is also testified by the accused counsel. At that point of time, she deposed that, CBI officers have not asked subsidy received by M/s Zandra Trading Company. It is true that, at that time what is the 73 C.C.No.21463/2012 subsidy rate available as per circular issued by the Government of India, only asked by the CBI. CBI has not asked whether M/s Zandra Trading Company has manufactured any MOP or received any subsidy at the relevant point of time from the government.
89. This evidence clearly noticed that, the I.O. is not able to secure any document to show that, the accused has import any restricted item as well as he has tried to export the same by obtaining subsidy from the Central Government. It seems that, I.O. who has conducted the investigation is not properly investigating the matter. If really the accused is manufactured any restricted item or he has import the restricted item or he tried to export the same to other countries by obtaining subsidy from the Government, then it is the duty of the I.O. to ascertain, whether this accused has imported the materials from foreign countries. It is not done so. Moreover, this restricted item not available in India as per the evidence of prosecution witnesses. Such being the case, in my opinion, it ought to have been imported by the Government, later on it has to be supplied to registered fertilizer dealers to supply the same to the formers for 74 C.C.No.21463/2012 growing agricultural crops. There must be some record available in the agricultural office to ascertain whether this alleged material was taken out by the accused from the agricultural office or he was purchased somewhere else. It is not ascertain by the I.O. Moreover, I.O. stated during the course of evidence that, he has tried to ascertain whether this alleged material was purchased by the accused. He was also recorded the statements of witnesses. But he is not able to collect the materials to show that, this accused was purchased the restricted item from the registered dealers or he was imported the restricted item from other countries. Such being the case, merely the circular furnished by the prosecution through this witness, itself does not mean that, the accused has obtained subsidy as stated in the charge sheet.
90. Now, I would like to refer the evidence of P.W.23. He deposed that, he was working as inspector in CBI. FIR was registered by DIG and handed over the case file to C.W.33 as per his instructions. The said FIR marked at Ex.P.33. This evidence noticed that, he has received the FIR 75 C.C.No.21463/2012 and handing over the file to other investigating officer. There is no necessary to discuss in detail about this witness.
91. As I have already discussed and come to the conclusion that, though the prosecution has made so many allegations in the charge sheet against the accused. I have gone through these allegations as well evidence and documents relied by the prosecution. The evidence of prosecution witnesses never disclosed that, the I.O. has conducted the mahazar as well as seized the materials and take the samples and tested the same from the Government Lab and received the reports and enclosed it along with charge sheet. It is further noticed that, the I.O. has recorded the statements of witnesses as well as he has written a letter to the concerned department and obtained the documents and submit the same in the charge sheet. He never tried to investigate the matter independently to take samples as well seized the materials and tried to ascertain that, the accused has imported a restricted item and tried to export the same by claiming subsidy. As such, in my opinion, the evidence of this witness will not help to the prosecution to prove the guilt of the accused beyond all reasonable doubt. 76 C.C.No.21463/2012
92. On going through the entire evidence as well as documents and submissions made by both the sides, the allegations which are stated in the charge sheet as well as evidence of the prosecution witnesses noticed that, there are so many contradictions and omissions in the evidence of prosecution witnesses as well as the prosecution is not able to examine the material witnesses in this case, in order to prove the alleged material is a restricted item as well as the alleged material was imported by the accused or he has purchased the same from the registered dealers etc.
93. It is further noticed that, though the prosecution is tried to lead the evidence about the MOP is tried to export by the accused through CHA. The evidence of prosecution witnesses noticed that, there are no materials to show that, the accused has authorized the CHA to export the alleged material from India to foreign countries. Though, the person who has deposed before this Court, he has seized authorization letter issued by the accused in favour of CHA. However, the said document is not available in the records. Moreover, the customs officer who has issued the authorization to prosecute the accused is also not able to 77 C.C.No.21463/2012 ascertain, whether this accused has issued any authorization letter to submit all the documents through CHA.
94. Another interesting point to be noted here that, all the prosecution witnesses admitted that, the Pacific Sea and Skylines Pvt. Ltd. is not having any license to do the business of CHA. The I.O. has examined one Shanu Ponnappa, license holder of the CHA. But he was not cited as witness nor examined to show that, this accused has issued authorization letter to fill all the documents on behalf of M/s Zandra Trading Company and submit to the ICD, Bangalore for export the cargo. Merely, on the say of employee of Pacific Sea and Skylines Pvt. Ltd. as well as CHA employees, it is not possible to ascertain that, the accused has issued the authorization letter to submit all the necessary documents on behalf of M/s Zandra Trading Company.
95. Another interesting point to be noted here that, the customs department has seized the materials as well as asked the agricultural officer to draw the samples and submit it to the laboratory and received the reports that, the materials which was tried to export by the accused is a 78 C.C.No.21463/2012 restricted item as MOP. As per admissions of prosecution witnesses noticed that, the prosecution is not able to examine the person who has tested the alleged material. The supervisor of the laboratory is examined in this case and got marked the test report. She has categorically deposed that, she has not personally conducted the test, on the basis of test report of analyst, she has prepared the report and submit it to the agricultural department. It is hearsay evidence.
96. At the same time, the prosecution has secured the independent witnesses at the time of seizure mahazar as well as drawing the samples. But those independent witnesses are not examined to show that, the prosecution has recorded the mahazar in the presence of independent witnesses. The I.O. who has conducted the investigation and filed the charge sheet against the accused is not able to seize the material as well as take the samples for test. On the basis of partly investigation conducted by the customs department, he has received the documents and submit the charge sheet. It shows that, the I.O. has not properly investigated the case. He has merely obtaining the 79 C.C.No.21463/2012 documents from the customs department and other departments and recorded the statements of witnesses and submit the charge sheet.
97. It is further noticed that, all the prosecution witnesses categorically admitted that, at the time of container was seized by the customs department as well as drawing the samples, accused was not present. It seems that, the customs department has seized the container as well as draw the samples without the knowledge of the accused. There is no impediment on the part of the customs department to issue notice to the accused that, they were going to seize the material, as the said material was restricted item as well as they are going to take samples from the said container. It is not done so. Moreover, the prosecution is not able to furnish any documents to show that, the representative of CHA was present at the time of seized all the materials as well as drawing samples. The evidence of customs officers noticed that, they have not properly conducted the mahazar as well as drawing the samples. It seems that, customs department is also not followed the procedure prescribed under the Customs Act.
80 C.C.No.21463/2012
98. It is further noticed that, the customs department has already initiated proceedings against the accused as well as imposed major penalty. Such being the case, it is not possible to say that, the accused who has already faced trial under the Customs Act, again he was faced trial before this Court for the same offence is attract under Section 300 of Cr.P.C. In general, the person who has faced trial for the specific offence, he cannot face trial for same offence as per Section 300 of Cr.P.C. In the present case, the materials which are available on record as well as oral testimony of the prosecution witnesses and documents, I come to the conclusion that, though the prosecution is able to mark so many documents as Ex.P.1 to 233. However, the material documents marked through the prosecution witnesses does not disclose the signature of the witnesses as well as accused was not authorized any person to submit alleged documents to the competent authority.
99. The gist of the prosecution case is that, the accused without having valid license, tried to export a restricted item to the foreign countries as well as caused loss to the Central Government. The burden lies on the 81 C.C.No.21463/2012 prosecution to prove the allegation beyond all reasonable doubt. If any doubt raised in the mind of the Court about evidence as well as documents by the side of the prosecution, the benefit of doubt has to go to the accused. In the present case, the learned counsel for the accused draw the attention of this Court that, there are no materials by the side of the prosecution in order to show that, the accused has imported the restricted item as well as he has tried to export the same by causing loss to the Government as stated in the charge sheet.
100. Counsel for the accused has relied upon so many decisions. I have gone through those decisions, but some of the decisions are not applicable to the facts of the present case. I would like to refer some important decisions relied by the accused counsel.
AIR 1990 SC 1459, between Vijayee Singh and Others, VS. State of U.P. Wherein it is held as under -
Evidence Act Section 3, 101 to 105 - Case of accused whether comes within exceptions - Burden lies on him to prove - Gets discharge if probability is prove or reasonable doubt about prosecution case is raised.
In general burden of establishing the guilt of accused is always on the prosecution and it never 82 C.C.No.21463/2012 shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case it self or, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities ad the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused.
Another decision reported in ILR 1995 KAR 2266, between Basappa VS. State of Karnataka. Wherein it is held as under -
Non-examination of material witnesses -
HELD - In the absence of examination of vital witnesses prosecution must fail and the benefit of doubt must go to the accused.
Another decision reported in 1972 SCC 258, between Dr. Sl.L. Goswami Vs. State of Madhya Pradesh. Wherein it is held as under-
As per Evidence Act Section 101 - Burden of proof - It is always for the prosecution to prove all the ingredients of an offence.
Criminal trial - Defence - Standard of proof required to prove the defence plea is not the same which is required to prove the prosecution case. 83 C.C.No.21463/2012
It is further held that, -
All the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that, burden does not become any the less.
The standard of proof to prove a defence plea is not the same as that, which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt.
101. The above decisions cited by the accused as well as observation made by the Hon'ble Apex Court as well as High Courts, it is clearly noticed that, the burden of proof always lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt. In the present case on hand, the prosecution is able to furnish the valueness of documents, adduced evidence to prove the guilt of the accused, but entire evidence of prosecution witnesses as well as documents never disclose that, the accused has involved in this case. The prosecution is not able to prove that, the alleged restricted item is tried to exported by the accused. 84 C.C.No.21463/2012
102. As I have already discussed in detail about the evidence of prosecution witnesses as well as documents, as such I come to the conclusion that, the materials which are placed by the prosecution are not sufficient to prove the guilt of the accused beyond all reasonable doubt. At the same time, I would like to mention, the prosecution is not able to establish the ingredients of offence against the accused as stated in the charge sheet. It is further noticed that, there are no materials to show that, the accused had imported the restricted item and tried to export the same. At the same time, the license obtained by the accused marked in this case at Ex.P.2. It is issued by the competent authority on the documents submitted by the accused. The prosecution has made specific allegation that, the accused caused loss to the Central Government to the tune of Rs.38,30,62,237.50. But the material documents as well as evidence of prosecution does not disclose that, the said amount was loss to the government by the act of the accused. Moreover, there are no materials to show that, this accused was procured the alleged materials from the out side of India or he has purchased the same through the registered dealers. Such 85 C.C.No.21463/2012 being the case, in my opinion, the allegations made by the prosecution is not supported the material documents.
103. At the same time, the evidence of I.O. clearly indicates that, he has not properly conducted the investigation. It clearly shows that, the I.O. has not ascertained whether this material was procured by the accused as well as he was not able to record the statement of the person, who has supplied the restricted item to the accused. It is undisputed fact that, the alleged material is not available in India, it has to be purchased by the Central Government from the foreign countries, then it has to be allotted to the registered dealers, thereafter the alleged materials has to supply to the formers. The I.O. has never tried to enquire the registered dealers of the alleged materials. He is not able to secure the documents to show that, this material was purchased by the Central Government on purchase order documents as well as it is allotted to the registered dealers. If the prosecution is able to secure those documents, then the Court has presumed that, this accused has tried to secure the restricted item from the registered dealers and tried to export the same. There are no such 86 C.C.No.21463/2012 materials available on the record. The entire cross- examination of the prosecution witnesses as well as documents, it clearly noticed that, there is a doubt creates about the allegations stated by the prosecution against the accused. At the same time, there is no corroboration and consistence evidence by the side of the prosecution witnesses to show that, this accused committed the alleged offences. There are so many omissions and contradictions in the evidence of prosecution witnesses. As such, in my opinion, the prosecution is not able to prove the guilt of the accused beyond all reasonable doubts. Hence, benefit of doubt given to the accused and I answer the above points No.1 to 4 in the Negative.
104. Point No.5 :- In view of the foregoing reasons and in the result, I proceed to pass the following order.
ORDER
Acting Under Section 248(1) Cr.P.C
accused found not guilty for the offences punishable under Section 420 of Indian Penal Code, under Section 7(1)(a)(ii) of Essential Commodities Act, 1965 r/w Section 25(1) & (2) of Fertilizer Control 87 C.C.No.21463/2012 Order, 1985 and under Section 132, 135 and 135A of Customs Act, 1962 and he is acquitted for the above offences.
The bail bond of the accused and surety bond stands cancelled.
[Dictated to the Stenographer, transcribed by her, transcript corrected, signed and pronounced by me in the open Court, this the 9th day of October, 2015] [SABAPPA] XVII Addl.Chief Metropolitan Magistrate, Bangalore.
-: ANNEXURE :-
I. List of witnesses examined for the prosecution :-
PW 1 : Krishna Kumar C.
PW 2 : Raja Priun
PW 3 : T. Parthasarathy
PW 4 : Gopinath R.
PW 5 : A. Babu
PW 6 : Banu Kumar Jain
PW 7 : K.T. Pakshi Rajan
PW 8 : Vikas R. Gayachari
PW 9 : Dr. R. V. Raghavendra
PW 10 : G. Ramaswamy
PW 11 : Smt. Susheela Narendra
PW 12 : H.R. Ganesh
88 C.C.No.21463/2012
PW 13 : A. Anantha Krishnan
PW 14 : Smt. Saraswathi Chakravarthy
PW 15 : Srinivas
PW 16 : Smt. M.R. Suma
PW 17 : V. Kumaran
PW 18 : Uday S. Bagade
PW 19 : H.L. Srinath
PW 20 : Dharmendran Jain
PW 21 : Sandeep Prakash
PW 22 : Smt. Raja Sulochana
PW 23 : T.V. Joy
PW 24 : K.Y. Guruprasad
II. List of witnesses examined for the defence :-
-NIL-
III. Documents exhibited on behalf of the prosecution:
Ex.P.1 : File pertaining to issue import/export code number of M/s Zandra Trading Company Ex.P.1(a) : Order sheets Ex.P.1(b) : Allotment letter Ex.P.1(c) : Interview Enquiry slip Ex.P.1(d) : Request letter dt. 06.03.2009 Ex.P.1(e) : Application form ANF 2A Form Ex.P.1(f): : Certificate of import/export code along with PAN, Voter ID etc. Ex.P.1(g) : Signature of P.W.2 Ex.P.1(h) : Importer exporter code Ex.P.1(i) : Signature of P.W.2 Ex.P.1(j) : Deficiency letter Ex.P.1(k) : Reply dated 20.12.2006 with pan Ex.P.1(l) : T.R.challan for Rs.1000/-
Ex.P.1(m) : T.R. Challan for Rs.250/- 89 C.C.No.21463/2012 Ex.P.1(n) : Letter of HDFC Bank Ex.P.1(o) : Signature of P.W.3 Ex.P.2 : Notification dated 2801.2004 Ex.P.3 : Covering letter dated 25.11.2011 Ex.P.3(a) : Signature of P.W.1 Ex.P.4 to Ex.P67 : Shipping Bills Ex.P.68 to Ex.P.82 : Covering letter of SGS India Pvt. Ltd., Ex.P.83 to Ex.P.125 : Test Reports (letters, analysis) Ex.P.126 : Summary of invoices fee paid to SGS Ex.P.127 : Seizure memo dated 20.12.2011 Ex.P.128 : Mahazar Ex.P.129 : Statement of P.W.5 Ex.P.130 : Letter dated 17.10.2008 Ex.P.131 : Certificate of import/export code Ex.P.132 : Covering letter to customs officer Ex.P.133 : Covering letter dated 03.09.2009 Ex.P.134(1) : Letter dated 18.05.2010 Ex.P.134(a) : Signature of P.W.7 Ex.P.134(2) : Acknowledgment Ex.P.134(3) : Acknowledgment Ex.P.134(4) : Showcause notice dated 12.05.2010 Ex.P.134(b) : Signature of Bhattacharya Ex.P.134(5) : Mahazar dated 29.12.2009 Ex.P.134(c) : Signature of P.W.8 Ex.P.134(c1) : Witnesses 90 C.C.No.21463/2012 Ex.P.134(6) : Mahazar dated 0512.2009 Ex.P.134(d) : Signature of P.W.7 Ex.P.134(e) : Signature of witness Ex.P.134(f) : Signature of witness in mahazar Ex.P.134(g) : Signature of concor Ex.P.134(g1) : Signature of P.W.8 Ex.P.134(7) : Copy of SS to Ponappa Ex.P.134(h) : Signature of P.W.7 Ex.P.134(8) : Statement of Ponappa Ex.P.134(i) : Signature of P.W.7 Ex.P.134(j) : Signature of Ponappa Ex.P.134(9) : Statement of Uttambhora Ex.P.134(k) : Signature of P.W.7 Ex.P.134(l) : Signature of Uttambhora Ex.P.134(10) : Statement of Manivelu Ex.P.134(m) : Signature of P.W.7 Ex.P.134(n) : Signature of manivelu Ex.P.134(11) : Statement of Gopinath Ex.P.134(o) : Signature of P.W.7 Ex.P.134(p) : Signature of Gopinath Ex.P.134(12) : Statement of Babu Ex.P.134(q) : Signature of P.W.7 Ex.P.134(r) : Signature of Babu Ex.P.134(13) : Original mahazar Ex.P.134(s) : Signature of mahazar
Ex.P.134(14) : Statement of Uday S. Bagade Ex.P.134(t) : Signature of P.W.7 Ex.P.134(u) : Signature of Uday S. Bagade Ex.P.135 : Letter dated 06.05.2009 Ex.P.136 to Ex.P.141 : Test Reports Ex.P.142 : Letter dated 07.05.2009 Ex.P.143 : Mahazar dated 29.12.2009 Ex.P.144 to Ex.P.155 : Forms J and K Ex.P.156 to 91 C.C.No.21463/2012 Ex.P.161 : Lab report Ex.P.162 : Acknowledgment receipt dated 31.12.2009 Ex.P.163 : Requisition dated 31.12.2009 Ex.P.164 : Mahazar dated 29.12.2012 Ex.P.165 : Letter dated 11.12.2009 Ex.P.167 : Seizure memo dated 27.02.2012 Ex.P.168 : Mahazar dated 05.12.2009 Ex.P.169 : Mahazar dated 29.12.2009 Ex.P.169 : Seizure memo dated 16.02.2012 Ex.P.171 : Screening copy of shipping bills movement Ex.P.172 : Certificate u/S.65 of Evidence Act Ex.P.173 : Shipping bill Ex.P.174 to Ex.P.177 : Test memos Ex.P.178 : Sample drawn register copy ICD Ex.P.179 & Ex.P.180 : Circulars Ex.P.181 : Customs manual copy Ex.P.182 : Certificate u/S.65 of Indian Evidence Act Ex.P.183 : Original Shipping bill Ex.P.184 : Invoice Ex.P.185 : Details of shipping bills 92 C.C.No.21463/2012 Ex.P.186 & Ex.P.187 : Covering letters Ex.P.188 : File pertaining to M/s Zandra Trading Company Ex.P.189 : Covering letter dated 09.03.2012 Ex.P190 to Ex.P.195 : Form 'P' Ex.P.196 to Ex.P.201 : Form 'K' Ex.P.202 to Ex.P.207 : Form 'L' Ex.P.208 : Covering letter dated 31.12.2009 Ex.P.209 : Seizure memo by CBI dated 09.03.2012 Ex.P.210 : Purchase order Ex.P.211 : Seizure memo dated 15.03.2012 Ex.P.212 : File contains of ICDE Forbs co., etc Ex.P.213 : Seizure memo dated 09.12.2012 Ex.P.214 : Letter dated 05.11.2009 Ex.P.215 to Ex.P.219 : Letters Ex.P.220 & Ex.P.221 : Shipping bills Ex.P.222 : Show cause notice dated 12.05.2010 Ex.P.223 : Seizure memo Ex.P.224 : Account opening Form 93 C.C.No.21463/2012 Ex.P.225 : Statement of A/c Ex.P.226 : Certificate u/S.165 of Evidence Act Ex.P.227 : Seizure memo dated 27.03.2012 Ex.P.228 : Sanction order Ex.P.229 : Details of MRP & Subsidy Ex.P.230 : Covering letter dated 19.07.2012 Ex.P.231 : Application for registration Ex.P.232 : Monthly value added tax return to C/T dept.
Ex.P.233 : FIR IV. List of documents exhibited for defence :-
- NIL -
V. List of material objects marked for the prosecution:
- NIL -
VI. List of material objects marked for the defence:--
- NIL-
XVII Addl. A.C.M.M., Bangalore.94 C.C.No.21463/2012
27.08.2015.
ORDER ON SENTENCE The Ld. Counsel for the accused vehemently argued and submitted that accused is having wife and two small kids as well as he is residing at Bangalore. He is the sole earning member to maintain the family. If this Court imposed maximum sentence, it will put to greater hardship and injustice to the family members. Therefore, prays to take lenient view and to pass the sentence.
2. Per contra, the Ld. Counsel for the Public Prosecutor vehemently argued and submitted that once the prosecution is able to prove the guilt of the accused beyond all reasonable doubts, the court has to impose maximum sentence to the accused.
3. On going through the facts and circumstances of the case as well as submissions made by the counsels, I would like to mention the prosecution is able to prove the guilt of the accused beyond all reasonable doubts. At the same time, the accused has expressed his inability as well as he is having two small kids as well as family members are 95 C.C.No.21463/2012 depending upon him. On this context, I would like to mention the offence which was committed by the accused is the economic offence and the act of the accused has made loss to the Central Government. The gravity of the offence as well as conduct of the accused clearly noticed that he is not entitled to any leniency or mercy of the Court. For the offences u/Sec. 420 IPC the punishment prescribed is imprisonment for seven years and also fine. I have also perused the Sec. 3 and 4 of the P.O. Act. In my opinion, when the accused is found guilty for the offence punishable under Sections 20 and 20 A r/w Section 4 of Indian Telegraph Act, 1885, under Section 21, 25 (c) of Indian Telegraph Act, 1885, under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, under Section 120 B r/w 420 of Indian Penal code, which are all the offences touching the economy of the State which has to be dealt as provided under Law. In my opinion in such a case, the benefit under P.O. Act cannot be extended.
4. In view of the above discussion as well as considering the arguments canvassed by the counsel, I proceed to pass the following :
96 C.C.No.21463/2012
ORDER
1) Accused is sentenced to pay fine of Rs.1,000/- (Rs.one thousand only) for the offence punishable under Section 20 of Indian Telegraph Act, and in default, he shall undergo S.I. for period of 3 months.
2) Accused is sentenced to pay fine of Rs.1,000/- (Rs.one thousand only) for the offence punishable under Section 20 A of Indian Telegraph Act, and in default, he shall undergo S.I. for the period of 3 months.
3) Accused is sentenced to pay fine of Rs.50/-
(Fifty Rupees only) for the offence punishable under Section 21 of Indian Telegraph Act, and in default, he shall undergo S.I. for the period of 1 day.
4) Accused is sentenced to undergo one year of simple imprisonment for the offence punishable under Section 25 (c) of Indian Telegraph Act, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in default, he shall undergo S.I. for the period of 3 months.
5) Accused is sentenced to pay fine of Rs.100/- (Rs.One hundred only) for the offence punishable under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, and in default, he shall undergo S.I. for the period of 2 days.
6) Accused is sentenced to undergo 6 months of simple imprisonment for the offence punishable under Section 120 B of Indian Penal Code, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in 97 C.C.No.21463/2012 default, he shall undergo S.I. for the period of 3 months.
7) Accused is sentenced to undergo one year of simple imprisonment for the offence punishable under Section 420 of Indian Penal Code, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in default, he shall undergo S.I. for the period of 3 months.
8) All the substantive sentences imposed against the accused for the above said offences shall run concurrently. The accused shall pay a total fine of Rs.5,150/- (Rs.Five Thousand One Hundred and Fifty only] together or shall serve out the sentence as ordered above.
9) Supply a free copy of the conviction judgment and sentence to the accused forthwith.
[Dictated to the Stenographer , transcribed by her, transcript corrected, signed and then pronounced by me in the open Court, this the 27th day of August, 2015.] [SABAPPA] XVII Addl.Chief Metropolitan Magistrate, Bangalore 98 C.C.No.21463/2012 ORDERS ON APPLICATION UNDER SECTION 389 (3) OF Cr.P.C.
The accused counsel filed application under Section 389 (3) of Cr.P.C. and submits that, accused is convicted by this Court. He is having good case to prefer appeal before Hon'ble District and Sessions Court. Therefore, sentence may be suspended till appeal period is over.
2. Heard both the sides.
3. On going through the petition averments as well as records, it is noticed that, accused is on bail as well as he is attending Court on every date of hearing. Moreover, he is having right to prefer an appeal against the judgment passed by this Court. Accused is having two small kids as well as family members. He is the sole earning member to maintain the family. Hence, reasons are satisfied. Accordingly application is allowed. Hence, I proceed to pass the following
-
ORDER The application filed by the accused counsel under Section 389 (3) of Cr.P.C., is hereby allowed.
Sentence passed by this Court is suspended for a period of 30 days.
99 C.C.No.21463/2012Accused is hereby directed to execute personal bond of Rs.20,000/- (Rs.Twenty thousand only) with one surety as well as he shall pay fine amount today itself.
Accused counsel filed surety affidavit along with RTC and other documents.
Surety by name Sri D.K. Siddaraju S/o Kalegowda, R/o Dalimbe village, Sathanur hobli, Kanakapura Raluk, Ramanagara District is present and willing to stand as surety to the accused. Hence, his suretyship is accepted.
Call on XVII A.C.M.M., Bangalore.