Madras High Court
Shri. Bharath Bhushan Goyal @ Bharat ... vs State By Inspector Of Police, ... on 1 April, 2004
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. Crl. O.P. No. 20698 of 2003 is a petition filed under Section 482, Cr.P.C. to quash C.C. No. 34 of 1999 on the file of the X Additional Special Judge, C.B.I. Cases, City Civil Court, Chennai. Crl. O.P. No. 20699 of 2003 is a petition filed under Section 482, Cr. P.C. to quash C.C. No. 35 of 1999 on the file of the X Additional Special Judge, C.B.I. Cases, City Civil Court, Chennai. Crl. O.P. No. 4495 of 2004 and Crl. O.P. No. 4498 of 2004 are to quash C.C. Nos. 35 and 34 of 1999 on the file of the same Judge. Crl. R.C. Nos. 618 and 619 are filed by Best Fabrics rep. by its Managing Partner S.Vaidyanathan against the orders framing charges in C.C. Nos. 35 and 34 of 1999 on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai.
2. These Criminal O. Ps. and Criminal R.Cs. are relating to C.C. Nos. 34 and 35 of 1999 on the file of the learned X Additional District Judge, C.B.I. Cases, Chennai.
3. The brief facts of the case are as follows:
In C.C. No. 34 of 1999, the respondent filed a charge sheet against the following persons:
A1 - M/s. Best Fabrics;
A2 - S. Vaidhyanathan, Managing Partner, M/s.Best Fabrics;
A3 - Sri. Bharath Bhusan Goyal @ Bharath Goyal @ B.B.Goyal;
A4 - S. Ramanathan, Assistant Collector (Retired);
A5 - A. Sivaram Kumar, Appraising Officer, Custom House, Chennai;
A6 - Smt. Sashi Balasubramanian;
A7 - V. Rajpriyan, Foreign Trade Development Officer, Former Controller of Imports and Exports, for the alleged offences under Sections 120B, 420, 468, 471, I.P.C. and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 132 and 136 of the Customs Act, 1962.
4. The complaint filed by the respondent is as follows:
A1, M/s.Best Fabrics is a partnership concern, of which A2 S.Vaidyanathan is the Managing Partner. The concern was doing export business in garments. A3 Sri. Bharat Bhushan Goyal @ B.B.Goyal is a partner of M/s. Goyal Dresses. A4 Sri. S. Ramanathan was functioning as Assistant Collector of Customs. A5 Shivarama Kumar was functioning as an Appraiser, Customs House, Chennai. A6 Smt. Sasi Balasubramaniam was functioning as the Deputy Director General of Foreign Trade in the office of the JDGFT. A7 Raj Priyan was functioning as Controller of Imports and Exports in the same office.
5. During 1993, A2, A3, A4, A5, A6 and A7 entered into a criminal conspiracy to cheat the Government of India, and in pursuance of the said conspiracy, A2 to apply for advance licences under Duty Exemption Entitlement Scheme without valid export orders and A3 to forge the said licences and thus with the connivance of A2 to import three consignments of man made fabrics using the forged advance licence with the connivance of A2 and A5, and A6, to abuse her position as a public servant and order for issue of advance licence and A7, to amend the licence as man made cotton fabrics against the provisions of the Import Export Policy, 1992 to 1997, and A3, with the connivance of A2, to forge the D.E.E.C. Certificate by striking out the word "cotton" and A2, with the connivance of A4 and A5, to import the consignments of man made fabrics at the Port of Madras and A4 and A5 to allow the import of man made fabrics by abusing their position as public servants and to make A2 to get the pecuniary advantage for which he was not entitled to and A2, on behalf of the company, to falsely declare in the bill of entry and the customs officials namely A4 and A5 to allow A2 to commit these offences and thereby all the above-said persons committed the above-said offences.
6. In pursuance of the said criminal conspiracy, A2, on behalf of A1 M/s.Best Fabrics, applied for advance licence on 29.1.1993 for import of cotton fabrics and had declared that they will manufacture and export cotton men's ensemblence (shirts and shorts) and enclosed with the application, a statement of export duly certified, declaration regarding central excise and also enclosed a copy of the registration cum membership certificate issued by the Apparel Export Promotion Council, SSI Certificate and Purchase Order. A challan for Rs.3,098/- was also enclosed.
7. On 7.2.1993, A2 submitted an amendment letter to the said office for converting the import item as man made fabrics instead of cotton fabrics. In subsequent letters dated 15.2.1993 and 22.2.1993, A2 requested changes in the width and value in respect of man made fabrics. However, no valid export order for man made fabrics in place of original export order for cotton fabrics was submitted to the said office. Tmt. Sasi Balasubramanian A6, passed order for issuance of Advance Licence based on the amendment request of A2, and A7, subordinate of A6, issued Quantity Based Advance Licence dated 16.4.1993 with details of import item as "Man Made Cotton Fabrics", which is against the provisions of the Import Export Policy, 1992-97. As per the said Advance Licence dated 16.4.1993, the value of import item allowed is Rs.25,15,086/- and the value of export obligation to be completed is Rs.45,43,897/-.
8. A2 and A3 forged the said Advance Licence and the related Duty Exemption Entitlement Certificate by striking out the word "cotton" in the description of import item (man made) cotton fabrics in the licence. The export obligation in respect of the said licence dated 16.4.1993 was fulfilled by A2 by exporting 'Cotton Men's Ensembles'. Knowing fully well that he was eligible for the import of cotton fabrics, A2, with the connivance of A3 and public servants A6 and A7, imported two consignments of man made fabrics at the Port of Madras. A4 Sri. S. Ramanathan, Assistant Collector and A5 A. Sivaram Kumar, Appraising Officer, who are Customs Officials, allowed the import of two consignments of man made fabrics at the Port of Madras under the Bills of Entry dated 2.7.1993 and 12.10.1993. The value of import item was suppressed by A2 by way of submitting false and forged invoices to get more benefit on customs duty. The duty foregone on the above two imports is around Rs.85 lakhs.
9. Similarly, a Bill of Entry No. 3582 dated 23.12.1993 for the import of man made Fabrics (Polyester Suiting) was filed on behalf of A1 at the Port of Cochin, which was submitted along with the said Bill of Entry as well as Advance Licence dated 19.5.1993, to claim duty free imports. Since the value of consignment was suspected to be very low, the Customs Officer at the Port of Cochin seized 55,493 metres of polyester suiting (man made fabrics) for further investigation.
10. In order to get the seized goods returned, A2 applied for Advance Licence by submitting a false export agreement said to have been entered into between A1 and Instyle, Italy. The Quantity Based Advance Licence dated 18.1.1994 was issued to A1 on the basis of the above-said false export order. Since the Advance Licence dated 18.1.1994 was not enough to cover the entire consignment, the forged Advance Licence dated 16.4.1993 was also submitted in the Customs House, Cochin. The Customs Officer of the Port of Cochin released the seized goods on the basis of the Import Licences dated 18.1.1994 and 16.4.1993. However, part of the released consignment was seized by the officers of D.R.I. Chennai, at the factory of A1. The duty foregone in the said import is around Rs.51 lakhs.
11. Thus, the customs duty to the tune of Rs.137 lakhs was evaded by the active connivance of A4 S. Ramanathan and A5 Shivarama Kumar and this was facilitated by the advance licence illegally issued by A6 and A7. Thus, the facts disclose the commission of offences under Sections 120B read with 420, 468, 471 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act and Sections 132 and 135 of the Customs Act.
12. In C.C.No. 35 of 1999, the respondent has filed a complaint against the following persons:
A1 - M/s. Best Fabrics;
A2 - Sri. Bharath Bhusan Goyal @ Bharath Goyal @ B.B. Goyal;
A3 - Sri. S. Vaidhyanathan, Managing Partner, M/s. Goyal Dresses;
A4 - Sri. Rajesh Bansali, Director of M/s.Bansali Garments Pvt. Ltd.;
A5 - Sri. S. Ramanathan, Assistant Collector (Retired); and A6 - Sri. Sivaram Kumar, Appraising Officer.
13. The brief facts of the case are as follows:
A1 M/s. Best Fabrics is a Partnership concern of which A3 is the Managing Partner. A2 Sri. Bharath Bhushan Goyal is the Managing Partner of M/s. Goyal Dresses, Chennai; A4 Sri. Rajesh Bansali is the Director of Bansali Garments Pvt. Ltd., Chennai; A5 Sri.S.Ramanathan was the Assistant Collector, Customs Department, Chennai; and A6 was the Appraising Officer, Customs Department, Chennai.
14. A2, A3 and A4, along with A5 and A6, entered into a criminal conspiracy during 1992-93 at Chennai and other places to cheat the Government of India in the matter of evasion of customs duty, and in furtherance of the said criminal conspiracy, A3 to apply for issue of advance licence for import of cotton fabrics from the office of the Director General of Foreign Trade and to obtain advance licence and to fabricate the said licence into cotton fabrics instead of "man made" with the connivance of A2 and public servants, namely, A5 and A6 to assess the bills of entries knowing fully well that the materials to be imported are not in conformity with the licence issued and A6, by abusing his position as public servant, to facilitate the private party to obtain pecuniary advantage to sign in the invoices which have been fabricated; A2 to take part in the clearance of the goods that were imported by using false and fabricated documents and make endorsement in the D.E.E.C. Book as if the materials imported to be fabrics instead of cotton fabric and A4 and A2 to prepare fax message to be sent to the foreign supplier and to inform the foreign supplier that the invoice and bill of lading should be dated prior to 30.9.1993 and the above-said accused persons had committed the above offence in order to cheat the Government of India by falsely declaring to the Customs Department which had resulted in huge loss of revenue to the Customs Department.
15. A2, the Managing Partner of M/s.Best Fabrics, applied for issue of advance licenses for import of "cotton Fabrics" from the Office of the Joint Director General of Foreign Trade. The Joint Director General of Foreign Trade issued four advance licenses and one more licence of M/s. Reflex International Pvt. Ltd., New Delhi, which was originally in the name of Goyal Dresses, was transferred to Pharma Vijay and from Pharma Vijay, it was transferred to M/s.Best Fabrics. Along with these licenses, they have also issued D.E.E.C. Books. As per the conditions of the licence, the company should import "Cotton Fabrics" and to complete the export obligation, the company should manufacture the cotton garments using the cotton fabrics imported and to export the cotton garments within six months of the import. To fulfil the export obligation, M/s.Best Fabrics imported under various Bills of Entry on different dates and submitted false declaration declaring the item of import as "Fabrics of All Types" falling under Chapter 54, which is for "Man Made Fabrics" instead of "Cotton Fabrics" falling under Chapter 52.
16. The Bills of Entry were assessed by A6 and A5, knowing fully well that the materials imported are not allowable goods and they are not confirmed to the licence issued.
17. M/s.Best Fabrics submitted two types of invoices for the same consignment, one containing the word "Cotton" and the other without mentioning the word "Cotton" and both the invoices were signed by A6. A6 deliberately failed to change the Tariff Head from Chapter 54 to Chapter 52 knowing fully well that Chapter 54 was for "Man Made Fabrics" and Chapter 52 was for "Cotton". By doing so, he has made the importer to obtain pecuniary advantage of several crores. A2, a close friend of A3, had actually taken part in the clearance of all the goods that were imported through Madras Harbour. He had made endorsement in the D.E.E.C. Book and in the licence as well as Bills of Entry that the goods imported are "Fabrics" and deliberately omitted the word "Cotton Fabrics". A4 has prepared the first half of the fax message sent to the foreign supplier dated 26.10.1993 in respect of the advance licence dated 9.7.1992 issued in favour of M/s. Reflex International Pvt. Ltd., New Delhi, which was subsequently transferred to M/s.Best Fabrics. In order to show that the licence is valid and in time, A2, in the fax message, informed the foreign supplier that the Invoice and Bill of Lading should be dated prior to 30.9.1993. A6 allowed the materials without valid licence in December, 1993, knowing fully well that the licence had expired in December, 1993.
18. Thus, all the accused have cheated the Government of India to the tune of Rs.2 crores, which is a legitimate duty leviable on the goods imported and thus the accused have committed the offences under Sections 120B, 420, 471, I.P.C. and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and Section 136 of the Customs Act, 1962.
19. Crl.O.P.No. 20698 of 2003 was filed to quash C.C.No. 34 of 1999 and Crl.O.P.No. 20699 of 2003 was filed to quash C.C.No. 35 of 1999 on the file of the learned X Additional Special Judge for C.B.I. Cases, City Civil Court, Chennai. The contention of the petitioner Bharath Bushan Goyal @ Bharat Goyal in both these cases are as follows:
Based on a search of the petitioner's premises on 14.2.1994, documents were seized and statements were recorded from various persons including the petitioner. Show cause notices were issued to A1, A2 and the petitioner by the Commissioner of Customs (Adjudication), New Customs House, Mumbai. The petitioner sent a reply to the show cause notice and participated in the adjudication proceedings. On several grounds, the petitioner also contended that the petitioner was not the importer and the goods were released by an order of assessment under the Act and the show cause notice itself was without jurisdiction. By virtue of the adjudication orders, demands for duty were either dropped or modified by the Commissioner of Customs, Adjudication, Mumbai. As against the petitioner, the adjudicating authority levied penalty in some cases and did not levy any penalty in other cases.
20. The petitioner filed an appeal against the order of the adjudicating authority, to the Customs, Excise and Gold Control Appellate Tribunal (C.E.G.A.T.). In the year 1998, The Government of India passed Finance (No. 2) Act, 1998, wherein, the Kar Vivad Samadhan Scheme, 1998 came to be introduced for settlement of dispute by the parties concerned in order to give a quietus to all pending disputes and litigations.
21. The salient features of the K.V.S. Scheme is as follows:
(a) 87(j) Indirect tax enactment - means Customs Act 1962 (52 of 1962) the Central Excise Act, 1944 (1 of 1944) or the Customs Tariff Act, 1975 (51 of 1975) or the Central Excise Tariff Act, 1985 the relevant Act and includes the Rules or regulations made under such enactment.
(b) 98(m)(ii)(b) Tax arrears - means the amount of duties (including draw back of duty, credit of duty or any amount representing duty), cesses, interest, fine of penalty, which constitutes the subject matter of a demand notice or a show cause notice issued on or before the 31st day of March, 1998 under that Enactment but remaining unpaid on the date of making a declaration under Section 88.
(c) 90. Time and manner of payment of tax arrears.
(d) 91. Immunity from prosecution and imposition of duty in certain cases. The Designate Authority shall, subject to the conditions provided in Section 90 grant immunity from instituting any proceedings for prosecution for any offence under any direct Tax Enactment or Indirect Tax Enactment, or from the imposition of penalty under any of such enactments, in respect of matters covered in the declaration under Section 88.
(e) 95(iii) Scheme shall not apply in certain cases to any person in respect of whom prosecution for any offence punishable under chapter ix or chapter xvii or the Indian Penal Code (45 of 1960), the Foreign Exchange Regulation Act, 1973, the N.D.P.S. Act, 1985, T.A.D.A., 1987, the Prevention of Corruption Act, 1988 or for the purpose of enforcement of any civil liability has been instituted on or before the filing of the declaration or such person has been convicted of any such offence punishable under any such enactment.
Consequently, by the proceedings initiated by the D.R.I., Chennai, which culminated in the adjudication proceedings came to an end under the scheme. In spite of the petitioner and the importer having opted to settle the dispute in respect of the Bills of Entry referred to in the criminal complaint under the K.V.S. Scheme, 1998, the respondents have chosen to file the charge sheet after a long period of time and therefore, the proceedings now contemplated are opposed to the K.V.S. Scheme, 1998, pursuant to Finance (No. 2), Act, 1998.
22. The petitioner filed a Discharge Petition on 6.4.2000 in Crl.M.P.No. 96 of 2002 before the trial Court in which, the Department filed a counter affidavit. The trial Judge held that K.V.S. Scheme pertains only to the Customs Act and not for other offences under I.P.C. and the Prevention of Corruption Act and therefore, rejected the discharge petition on the ground that the immunity granted under the K.V.S. Scheme is not applicable to the petitioner.
23. This quash petition is filed on the limited aspect that the trial Court has no jurisdiction to entertain the criminal proceedings based on the charge sheet filed under Section 173, Cr.P.C. or to proceed with the matter as per the provisions of the K.V.S. Scheme, 1998. The scheme provides immunity from prosecution if the person concerned has opted to settle the matter before the scheme. In this case, the declarations were filed in December, 1998, and the Designated Authority has also accepted the amount determined in full and final settlement of all the tax arrears. The requisite immunity from prosecution has also been given by the said Authority. The petitioner has paid the penalty to the Designated Authority under the Scheme and a certificate of immunity from prosecution has been given by the Designated Authority. In respect of a Bill of Entry, a show cause notice was issued to the importer, namely, M/s.Best Fabrics and M/s.Best Fabrics filed a declaration under the scheme at the stage of show cause notice itself and the Designated Authority has also accepted the declaration and determined the amount payable by the importer.
24. In this matter there are three types of cases:
(a) Where the petitioner himself paid the penalty as determined by the Designated Authority under the K.V.S. Scheme, 1998 and Certificate of Immunity from prosecution has also been granted by the Designated Authority.
(b) Where the show cause notice was issued to the petitioner and the importer namely, M/s.Best Fabrics and its partner, Shri Vaidyanathan. In these cases, the importer had filed a declaration at the time of show cause notice itself and the Designated Authority had accepted the declaration and determined the amount payable by the importer. After the importers namely, M/s.Best Fabrics paid the amount so determined, the Designated Authority issued an order under Section 90(2) of the Act, 1998 granting immunity from prosecution.
(c) Bill of Entry where the declaration filed by the petitioner was returned on the ground that no amount was due.
25. The following Bills of Entry fall under category (a):
------------------------------------------------------------
S.No. B.E.No. / Date of payment of Date of KVS Order
Date amount determined under Section
& amount 90(2) in respect
of petitioner
------------------------------------------------------------
1. 22885/2.7.93 Rs.1,00,000/- 17.3.1999
13.3.1999
------------------------------------------------------------
26. The following Bill of Entry fall under category (b) wherein the importer is M/s. Best Fabrics on the basis of the show cause notice filed directly under K.V.S. Scheme.
--------------------------------------------------------------------
S.No. B.E.No. / KVS Amount deter- Date of KVS Order
Date mined on importer under Section
/Date 90(2) in respect
of importer
---------------------------------------------------------------------
2 38017/ Rs.26,40,370/- 17.3.1999 12.10.1994 1.2.1999
----------------------------------------------------------------------
27. The following Bill of Entry fall under Category (c):
------------------------------------------------------------
S.No. B.E.No. / Date of declaration Date of
Date under KVS Registration
------------------------------------------------------------
2 3582/
23.12.1993
------------------------------------------------------------
28. As far as the importer covered by the Bills of Entry in category (a) immunity from prosecution has already been granted to the petitioners and hence no prosecution can be launched after the declaration has been accepted and immunity granted.
29. As far as Bill of Entry covered under category (b) is concerned, the co-noticee who has been issued show cause notice along with the petitioner had paid the amount as determined by the Designated Authority. At the stage of show cause notice, there was no demand of duty against the petitioner and penalty was not quantified. Once the proceedings against the importer comes to an end, namely M/s.Best Fabrics, A1, the proceedings against the petitioner Sri. Bharath Bhushan Goyal, A3, will also come to an end. When immunity from prosecution has been granted to the importer, A1, the petitioner cannot be prosecuted. when the prosecution against the importer is not sustainable, the question of conspiracy will cease to exist. When the main accused is entitled to be acquitted or discharged, the petitioner will also be entitled to the same relief.
30. As far as Bill of Entry No. 3582 dated 23.12.1993 covered by category (c) is concerned, the Designated Authority has, by his letter dated 24.12.1998, stated as follows:
" With reference to your declaration in Form IB under Kar Vivad Samadhan Scheme, 1998, filed in respect of order in original No. AP/INT/34/93 SIB/CUS dated 4.6.96 passed by the Commissioner of Customs, Customs House, Cochin-9, it is informed that as there is no arrears pending on the date of making declaration i.e., on 21.12.1998, the case cannot be settled under Kar Vivad Samadhan Scheme, 1998. "
He has not appreciated the facts of the case. In the appeal before the C.E.G.A.T., the Tribunal had directed the petitioner to pre-deposit the entire penalty of Rs.5,00,000/- pending disposal of the appeal. There was no final adjudication in the matter. The amount of Rs.5,00,000/- is still due, till the order of the Commissioner of Customs confirmed by the Tribunal. Hence, the contention that there were no arrears is not sustainable. Further, it is accepted that there is no arrears due from the petitioner, no case is made out against him under law and even on this ground, he is entitled to be discharged.
31. In Crl. O.P. No. 20698 of 2003, the petitioner contends that the demand against the petitioner for a total sum of Rs.1,37,00,000/- has been paid by the importer.
32. The officers of the D.R.I. Department caused a search of the petitioner's premises on 14.2.1994. Documents were seized, statements were recorded from persons including the petitioner. Show cause notices were issued to M/s.Best Fabrics, Sri. Vaidyanathan and the petitioner by the Commissioner of Customs, Adjudication, New Customs House, Mumbai.
33. The petitioner-A3 and importer, M/s.Best Fabrics-A1, therefore, filed declaration in Form 1-B before the Designated Authority under the K.V.S. Scheme. Acknowledgments were issued by the Designated Authority to each of these declarations, covering the Bills of Entry referred to in the complaint. The Designated Authority under the K.V.S. Scheme issued certificates to the petitioner in respect of Bill of Entry No. 22885 dated 2.7.1993 and to the Importer M/s.Best Fabrics, A1, in respect of Bill of Entry No. 38017 dated 12.10.1999 under Section 90(i) of the Finance (No. 2) Act, 1998, determining the amount payable under Section 88(f) of the Finance Act, with a direction to pay the amounts to the Designated Authority within thirty days from the date of the certificates. The petitioner and the importer, on receipt of these certificates, paid the amounts determined by the Designated Authority towards full and final settlement of the tax/penalty arrears. The Designated Authority, thereafter, issued a certificate for full and final settlement of tax arrears under Section 90(2) read with Section 91 of the Finance (No. 2) Act, 1998, under the K.V.S. Scheme. This certificate in Form 3 confirmed the payment of the sum determined by the Designated Authority. The important feature in this certificate is extracted below:
(a) Certifying the receipt of payment from the declarant towards full and final settlement of tax arrears determined in order dated 19.2.1998 on the declaration made by the aforesaid declarant.
(b) Granting immunity, subject to the provisions contained in the scheme, from instituting any proceedings for prosecution for any offence under the said Indirect Tax Enactments, in respect of matters covered in the aforesaid declaration made by the declarant.
Consequently, all proceedings initiated by the D.R.I. Department came to an end under this scheme.
34. In spite of the petitioner and the importer having opted to settle the dispute in respect of the Bills of Entry referred to in the criminal complaint under the K.V.S. Scheme, 1998, the respondents have chosen to file the charge sheet after a long time and therefore, the proceedings now contemplated are without jurisdiction, contrary to law and opposed to the K.V.S. Scheme, 1998, pursuant to Finance (No. 2), Act, 1998.
35. As has been mentioned above, the scheme provides immunity from prosecution if the person concerned has opted to settle the matter before the scheme. In this case, the declarations were filed in December, 1998, and the Designated Authority has also accepted the amount determined in full and final settlement of all the tax arrears. The requisite immunity from prosecution has also been given by the said Authority. Hence, the complainant has no jurisdiction to file the charge sheet or proceed against the petitioner.
36. In respect of Bill of Entry No. 22885 dated 2.7.1993 covered by Licence No. 2296863 dated 16.4.1993, the show cause notice was issued by the D.R.I. Department on A1, A2 and A3, the petitioner herein and consequently, the matter was adjudicated by the Commissioner of Customs, Adjudication, Mumbai, after hearing the parties. By order No. 41/99 dated 21.1.1999, the Commissioner conferred a demand of duty on A1 for a sum of Rs.18,30,458/- as against Rs.33,07,866/- demanded in the show cause notice. In respect of the petitioner, he imposed a penalty of Rs.2,00,000/- and on A1, M/s.Best Fabrics also. As against this order, the petitioner filed a declaration under Section 88 of the K.V.S. Scheme on 29.1.1999, in respect of the penalty levied. By certificate dated 19.2.1999 under Section 90(1) of the Finance (No. 2) Act, 1998, the Designated Authority determined the amount payable by the petitioner under Section 88(f) as Rs.1,00,000/-. The petitioner thereafter paid the said sum of Rs.1,00,000/- on 13.3.1999, which was duly acknowledged and a certificate for full and final settlement to the petitioner was issued under Section 90(2) of the K.V.S. Scheme granting immunity from prosecution.
37. In respect of Bill of Entry No. 380187 dated 12.10.1997, a show cause notice was issued on the importer M/s.Best Fabrics and also on the petitioner in File No. S8/ 170/95, SIB/DRI/30/94. Since the matter was pending adjudication, the importer, M/s.Best Fabrics filed K.V.S. Declaration No. 376/98 and the Designated Authority issued a certificate of intimation under Section 90(1) of the Finance (No. 2) Act, 1998, determining the amount payable by the importer M/s.Best Fabrics, A1 under Section 88(f) of the Act at Rs.26,40,370/- by order dated 1.2.1999. On payment of the above-said amount by the importer, the Designated Authority, by certificate dated 17.3.1999 issued under Section 90(2) of the Act, confirming the payment of the amount determined and granting immunity to the importer. Hence, no proceedings survives as against the petitioner as the matter has been closed by the importer himself.
38. In this matter there are three types of cases:
(a) Where the petitioner himself paid the penalty as determined by the Designated Authority under the K.V.S. Scheme, 1998 and Certificate of Immunity from prosecution has also been granted by the Designated Authority.
(b) Where the show cause notice was issued to the petitioner and the importer namely, M/s.Best Fabrics and its partner, Shri Vaidyanathan. In these cases, the importer had filed a declaration at the time of show cause notice itself and the Designated Authority had accepted the declaration and determined the amount payable by the importer. After the importers namely, M/s.Best Fabrics paid the amount so determined, the Designated Authority issued an order under Section 90(2) of the Act, 1998 granting immunity from prosecution.
(c) Bill of Entry where the declaration filed by the petitioner was returned on the ground that no amount was due.
39. The following Bills of Entry fall under category (a):
------------------------------------------------------------
S.No. B.E.No. / Date of payment of Date of KVS Order
Date amount determined under Section
& amount 90(2) in respect
of petitioner
------------------------------------------------------------
1. 22885/2.7.93 Rs.1,00,000/- 17.3.1999
13.3.1999
------------------------------------------------------------
40. The following Bill of Entry fall under category (b) wherein the importer is M/s.Best Fabrics on the basis of the show cause notice filed directly under K.V.S. Scheme.
------------------------------------------------------------
S.No. B.E.No. / KVS Amount deter- Date of KVS Order
Date mined on importer under Section
/Date 90(2) in respect
of importer
------------------------------------------------------------
2 38017/ Rs.26,40,370/- 17.3.1999
12.10.1994 1.2.1999
------------------------------------------------------------
41. The following Bill of Entry fall under Category (c):
-----------------------------------------------------------
S.No. B.E.No. / Date of declaration Date of
Date under KVS Registration
-----------------------------------------------------------
2 3582/ 23.12.1993
-----------------------------------------------------------
42. As far as the imports covered by the Bills of Entry in category (a) immunity from prosecution has already been granted to the petitioners and hence no prosecution can be launched after the declaration has been accepted and immunity granted.
43. As far as Bill of Entry covered under category (b) is concerned, the co-noticee who has been issued show cause notice along with the petitioner had paid the amount as determined by the Designated Authority. At the stage of show cause notice, there was no demand of duty against the petitioner and penalty was not quantified. Once the proceedings against the importer comes to an end, namely M/s.Best Fabrics, A1, the proceedings against the petitioner Sri. Bharath Bhushan Goyal, A3, will also come to an end. When immunity from prosecution has been granted to the importer, A1, the petitioner cannot be prosecuted. when the prosecution against the importer is not sustainable, the question of conspiracy will cease to exist. When the main accused is entitled to be acquitted or discharged, the petitioner will also be entitled to the same relief.
44. As far as Bill of Entry No. 3582 dated 23.12.1993 covered by category (c) is concerned, the Designated Authority has, by his letter dated 24.12.1998, stated as follows:
" With reference to your declaration in Form IB under Kar Vivad Samadhan Scheme, 1998, filed in respect of order in original No. AP/INT/34/93 SIB/CUS dated 4.6.96 passed by the Commissioner of Customs, Customs House, Cochin-9, it is informed that as there is no arrears pending on the date of making declaration i.e., on 21.12.1998, the case cannot be settled under Kar Vivad Samadhan Scheme, 1998. "
He has not appreciated the facts of the case. In the appeal before the C.E.G.A.T., the Tribunal had directed the petitioner to pre-deposit the entire penalty of Rs.5,00,000/- pending disposal of the appeal. There was no final adjudication in the matter. The amount of Rs.5,00,000/- is still due, till the order of the Commissioner of Customs is confirmed by the Tribunal. Hence, the contention that there were no arrears is not sustainable. Further, it is accepted that there is no arrears due from the petitioner, no case is made out against him under law and even on this ground, he is entitled to be discharged.
45. The Government considered the position of a co-noticee in various trade notices, which were issued from time to time, setting out the Government's stand. The petitioner has filed one such notice. The Government has clarified that no civil proceedings for imposition of fine or penalty shall be proceeded with against the co-noticees and in such cases, the settlement in favour of the declarant under the scheme shall be deemed to be full and final in respect of other persons also, on whom show cause notices were issued on the same matter (Trade Notice No. 36/98 dated 9.12.1998). In respect of the importer M/s.Best Fabrics, the K.V.S. declaration in respect of the Bill of Entry No. 3582 dated 23.12.1993, which is the subject matter of the Order in Original AP/INT/34/93-SIB/CUS dated 4.6.1996. The immunity granted in respect of the importer will also apply to the co-noticee, the petitioner herein. The importer co-accused has also filed a petition to quash the proceedings and the same has been admitted by this Court.
46. A1 and A2 in C.C.No. 35 of 1999 have contended in Crl.R.C.No. 618 of 2003 as follows:
The proceedings are liable to be quashed on the major aspects such as, firstly, in connection with the imports made, the petitioner has been granted immunity from prosecution under any direct or indirect tax legislations passed by the parliament under the Kar Vivad Samadhan Scheme, 1998. Since the offence pertains to or relatable to imports under the Customs Act, the immunity granted to Kar Vivad Samadhan Scheme is complete such that no offence under the Customs Act or any other enactment arising out of transaction under the Customs Act could be launched or prescribed.
47. Second major aspect is that in connection with the imports, adjudication proceedings under the Customs Act based solely on the very same materials proceedings were initiated and on the whole of the evidence, the adjudication authority had no material to levy any personal penalty upon the petitioner. Since no penalty was imposed in the adjudication proceedings under the Customs Act, a prosecution on the same set of facts is not maintainable.
48. The third major aspect is that the petitioner was only a holder of a transferable licence which licence was utilised by Accused 3 and others for importation of goods by them utilising the D.E.E.C. Scheme. Since the petitioner is not involved in actual importation of any of the goods,he cannot be prosecuted for any offence connected therewith.
49. The Customs Department initiated proceedings against the petitioner and others in RR.13/94 on the basis that attempt to import of goods under D.E.E.C. Scheme on the strength of the licence was not justified and there was an attempted evasion of import duty on the goods attempted to be imported. It is in connection with the same set of facts, investigation was done by the Customs Authorities, statements were recorded from various parties including the petitioner. Since certain officials of the Director General of Foreign Trade were involved, the matter was entrusted to the respondent later.
50. In the meanwhile, K.V.S.S., 1998, was passed and came into effect from 1.9.1988. The said scheme provided immunity from prosecution and imposition of penalty in certain cases. Where the person invokes this K.V.S.S. (Kar Vivad Samadhan Scheme) and if he fulfills the norms prescribed under the Scheme, then a certificate of immunity is granted to him under Section 94 of the Act. According to the petitioner, in connection with each and every import, the petitioner had applied for under the K.V.S.S. Scheme and he had been granted certificate of immunity from prosecuting or continuing the prosecution for the offence under any direct or indirect legislature of the Parliament.
51. The trial Court failed to see that where immunity is granted under Kar Vivad Samadhan Scheme (K.V.S.S. for short), there could not be a prosecution or even evidence let in on any aspect of the alleged violation of the Customs Act. If so, there could not be any prosecution under any other law where it is inextricably connected with the offence under the Customs Act.
52. The trial Court failed to see that this grant of immunity is a complete answer and in view of such a certificate of immunity, this prosecution does not lie and it requires to be quashed.
53. The trial Court failed to see that any immunity Scheme like K.V.S.S., must receive an interpretation that would further the objects of the K.V.S.S. Scheme and would effectuate the immunity granted under the Act. Such a grant of immunity must also result in disposal of entirety of the case. It is further submitted that prosecution is also under offence under I.P.C., or on certain officials under Foreign Trade Regulation Act have been implicated, could not make any difference. The main transaction is relating to import of goods falling under the Customs Act. The offence under I.P.C. are dependent upon the contravention of the Customs Act. If there is immunity from prosecuting the offence under the Customs Act, there cannot be an independent or separate prosecution under any other enactment like I.P.C. or the Prevention of Corruption Act.
54. The trial Court failed to see that the learned Chief Metropolitan Magistrate, E.O.-I had passed an order on 17.8.1999 after hearing the counsel for the Customs Department also closing the prosecution case initiated on the same set of facts and on the same evidence for offence under the Customs Act in view of the certificate of immunity granted under K.V.S. Scheme. It is submitted that different consideration may not arise for an offence under I.P.C. or any other enactment based on the same set of facts.
55. the trial Court failed to see that apart from the immunity under Kar Vivad Samadhan Scheme on another basis also this prosecution is not maintainable. It is on the ground that in respect of the 12 imports in the adjudication proceedings, there have been no imposition of penalty at all against the second petitioner. The orders of adjudication are also enclosed in the typed set of documents. Thus, it will be seen that there has not been an imposition of penalty in the adjudication proceedings in respect of the imports which are subject matter of the complaint before this Court.
56. The trial Court failed to see that where in the adjudication proceedings there is no imposition of penalty on the same set of facts, there cannot be a prosecution in a criminal Court appears to be well settled. None of the offences, viz., 120-B, 420, 471, I.P.C. and 13(2) read with 13(1)(d) of the Prevention of Corruption Act read with Section 136 of the Customs Act can be attributed to the petitioner, as the petitioner even according to this statement and materials on record, the charging Section 471, I.P.C. is not attracted. The petitioner is not shown to have made any pecuniary benefit on the imports made Hence, the offence under Section 120-B or 420, I.P.C. cannot arise.
57. In Crl.R.C.No. 619 of 2003, similar grounds have been raised by the petitioner.
58. In Crl.O.P.No. 4495 of 2004 which is against C.C.No. 35 of 1999 on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai, the petitioner has been added as A5. According to him, the charges have been filed falsely against him which cannot withstand the judicial scrutiny and that the charges levelled against him are not commensurate with the duties and responsibilities cast on him.
59. When an importer's imported goods have arrived at the Port of calling, the importer, through their Customs House Agent, would file the Bill of Entry along with the connected documents like Import-Export Code No. , Bill of Lading, Invoice, Packing List, Purchase Order, Order of confirmation, LC, Country or Origin, Import Licence, Import Duty Exemption Entitlement Certificate, Import Books relating to Duty Exemption Entitlement Scheme, before the Import Department of the Customs Department, who will assign a Bill of Entry No. and date. Thereafter, the Customs House Agent will take it to the Appraising Department. The Appraising Department consists of Appraising Officers and is headed by an Assistant Collector, now renamed as Assistant Commissioner. In the Appraising Department, the Appraising Officer will register the documents presented by the Customs House Agent by affixing the official seal of the Customs Department and place them before the Appraisers, who are in the rank of Group-B Gazetted Officers. The Appraisers will thoroughly scrutinize the documents on their merits. One who appraises the value of the goods is designated as Appraiser. They will appraise the value of the goods and confirm the duty payable and send it to the Assistant Collector of Customs for counter-signature. The appraisers would also prepare necessary instructions for opening and examining the goods by the Docks Department after the counter-signature on the face of the original bill of entry is complied with. Then the same will be put up to the concurrent Audit Appraiser for audit purpose. In the instant case, the imported goods are eligible for duty exemption. They do not probe into the nomenclature of the goods imported by any importer, but they go by the documents presented before them. Once the Appraisers have perused, scrutinized and verified the documents with reference to the contents and narration therein and have satisfied themselves that the goods have been imported in accordance with the advance licence, they would sign the documents and place them before the Assistant Collector, now renamed as Assistant Commissioner for counter-signature of the documents and those documents are returned back to the Custom House Agent after the concurrent audit is completed by the Concurrent Audit Appraiser. The duties of the Assistant Collector/Commissioner end there. It was clearly an administrative duty discharged by the petitioner. The petitioner herein performed and discharged such kind of duties during the relevant point of time. The Appraising Department is like a tapal section in any office where its Clerk would register the documents before it. Only documents are scrutinized in the group.
60. On the petitioner affixing his counter-signature on the documents and after the concurrent audit is completed, the Customs House Agent would then collect the scrutinized documents and present them before the Docks Department.
61. The Docks Department is also made up of Clerks, Appraisers/Examiners and headed by an Assistant Collector, now renamed as Assistant Commissioner. The imported goods are stocked in the docks. It is these Appraisers/Examiners who would physically verify the imported goods and ensure that they are in conformity with the advance licence and the Duty Exemption Entitlement Scheme. If they have any doubt between the goods imported and those specifically mentioned in the aforesaid documents, they are empowered to draw samples and have them chemically examined. The Docks Department, after observing all the rules and regulations governing imports, would order for release of the goods.
62. The Bill of Entry is a cluster of documents and it is usually available in quadruplicate. An Appraiser will scrutinize the above-said documents and will thereafter sign on the face of the original and duplicate copies only and put his initials on the triplicate and quadruplicate copies. The Appraiser will also append his initials on the invoice pasted on the reverse of the Bill of Entry. Thereafter, the Appraiser will put up the documents to the petitioner. The petitioner would then tally the Bill of Entry with the invoice entries pasted on the reverse of the original bill of entry, advance licence and Duty Exemption Entitlement Books and on finding the entries to be correct, he will counter-sign on the face of the original Bill of Entry. The petitioner need not sign on the other copies of the Bills of Entry. Then, the Customs House Agent will collect the documents and present them to the Concurrent Audit and then to the Docks Department, where its Appraisers and the Assistant Collector/Commissioner will once again verify the documents and physically check the goods. Thereafter, they will sign at the appropriate column, namely "Passed out of Customs charge", on the reverse of the duplicate Bill of Entry.
63. The imported goods are allowed clearance on the basis of the advance licence and duty exemption entitlement certificate.
64. The statements of the witnesses on the basis of which the charges have been framed against the petitioner have not whispered anything adverse against the petitioner. It is not the case of the respondent herein that the petitioner showed or extended undue favour to anyone. There are no materials whatsoever to sustain any part of the charge. The Advance Licence and the amended Advance Licence were all issued on the basis of the application made by the importer before the Director General of Foreign Trade, specifically mentioning the nature of goods sought to be imported. The petitioner is not aware either about the Advance Licence or the amended Advance Licence sought for from the Director General of Foreign Trade by the importer. The goods, namely, man made fabrics, sought to be imported by the importer, fell within the purview of duty exemption and all the formalities were finalised by that Department only, viz., the Director General of Foreign Trade. When the Director General of Foreign Trade is fully satisfied with the application of the importer and their request for duty exemption, the Customs Department has the least say in the matter. Therefore, when once the documents have been found to be in order, the petitioner had no other option but to process the documents placed before him in accordance with the established procedures and it is not the case of the respondent herein that the petitioner has belittled them. The petitioner has acted in good faith in the discharge of his official duty. No accusing finger can be pointed out against him. Unless the petitioner has actively involved himself with the importer right from the stage of submission of application before the Director General of Foreign Trade, no malafides can be attributed to him. It is also not the case of the respondent herein that the petitioner has played any part in these aspects.
65. Long before the charges were levelled against the petitioner, the importers, who are the real accused in the episode, have paid the customs duty. The importers have not paid the duty under protest. Even at that time, they have not attributed any motive on the petitioner. Thus, there is no loss of revenue to the Government, as alleged in the charge sheet.
66. In Crl.O.P.No. 4498 of 2004, which is against C.C.No. 34 of 1999 on the file of the Additional Special Judge for C.B.I. Cases, Chennai, where the petitioner is added as A4, has raised the same contentions as raised in Crl.O.P.No. 4495 of 2004.
67. The contention of A1, A2 and A3, i.e., M/s.Best Fabrics, Sri. Bharath Bhushan Goyal @ Bharat Goyal @ B.B.Goyal and S.Vaidyanathan in all these Criminal Original Petitions and Criminal Revision Cases is that a scheme called "Kar Vivad Samadhan Scheme", which was notified as Finance No. 21/98 Act, was evolved by the Government of India and was in force between September, 1998 and December, 1998. Section 87(m)(b) sets out what the "tax arrears" is in relation to indirect taxation. Section 88 sets out the amount of tax arrears payable. The person who wants to avail of the benefit of the Scheme should make a declaration from 1.9.1998 and on or before 31.12.1998 to the Designated Authority in accordance with the provisions of Section 89 in respect of tax arrears. If he does so, he would be governed by the Scheme. The rates have been set out in Section 88(f). Section 88 deals with both direct and indirect tax arrears which are payable under this Act. Section 88(f)(i) deals with cases where tax arrears comprise of fine, penalty or interest but does not include duties. Section 88(f)(ii) deals with duty. In the first case, the rate fixed for settlement was 50% of amount of fine, penalty or interest due or payable as on the date of declaration. In the second case, it will be 50% of the amount of duty due or payable on the date of making a declaration. Under Section 89, a declaration to the Designated Authority shall be in such form and verified in such manner as may be prescribed. Section 90 states that within sixty days from the date of receipt of the declaration under Section 88, the Designated Authority shall, by order, determine the amount payable by the declarant in accordance with the provisions of this Scheme and grant a certificate in such form as may be prescribed to the declarant setting forth therein the particulars of the tax arrears and the sum payable after such determination towards full and final settlement of tax arrears. The proviso sets out that if any material particulars furnished in the declaration is found to be false, by the Designated Authority at any stage, it shall be presumed as if the declaration was never made and all the consequences under the direct tax enactment or indirect tax enactment under which the proceedings against the declarant are or were pending shall be deemed to have been revived. Under Section 90(2), the declarant shall pay the sum determined by the Designated Authority within thirty days of passing of an order by the Designated Authority and intimate the fact of such payment to the Designated Authority along with proof thereof and the Designated Authority shall thereupon issue the certificate to the declarant. Under Section 90(3), it is stated that every order passed under sub section (1), determining the sum payable under this Scheme shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any other proceeding under the direct tax enactment or indirect tax enactment or under any other law for the time being in force.
68. Section 91 provides for immunity from prosecution and imposition of penalty. Section 91 sets out that the Designated Authority shall, subject to the conditions provided in Section 90, grant immunity from instituting any proceeding for prosecution of any offence under any direct tax enactment or indirect tax enactment, or from the imposition of penalty under any of such enactments, in respect of matters covered in the declaration under Section 88.
69. Section 95 sets out the cases in which the scheme will not apply. In this regard the attention of this Court is invited to Section 95(iii). It states that the provision of this Scheme shall not apply to any person in respect of whom prosecution for any offence, punishable under Chapter IX or Chapter XVII of the Indian Penal Code (45 of 1860), the Foreign Exchange Regulation Act, 1973 (46 of 1973), the Narcotic Drugs and Psychotropic Substances Act, 1985, the Terrorists and Disruptive Activities (Prevention) Act, 1987, the Prevention of Corruption Act, 1988 (49 of 1988) or for the purpose of enforcement of any civil liability has been instituted on or before the filing of the declaration or such person has been convicted of any such offence punishable under any such enactment.
70. In view of the K.V.S. Scheme, 1998, the accused and co-accused Sri. Vaidhyanathan of M/s.Best Fabrics and Bharat Goyal opted for settlement of the cases under the Scheme. Hence, on the basis of the show cause notices issued and the order of adjudication passed by the Commissioner of Customs, the accused and co-noticee M/s.Best Fabrics, represented Sri. Vaidhyanathan filed declaration under Section 88 of the Finance Act No. 2/98 opting to settle the cases under the K.V.S. Scheme, 1988, in respect of all the Bills of Entry referred to in the two charge sheets filed in C.C.No. 34 of 1999 and C.C.No. 35 of 1999. The accused and co-noticee filed K.V.S. Declarations before 31.12.1998 and immunities were granted subsequently. The prosecution in these cases were instituted on 12.4.1999. The Department accepted the declaration under Section 88 in each of the cases and granted immunity in terms of Section 90(2) of the Finance Act No. 2/98. The relevant declaration and certificates granting immunity have been filed as separate volumes II. The above-said document have also been filed before the trial Court.
71. In this matter in respect of C.C.No. 35 of 1999, there are two types of cases:
(a) Where the accused himself paid the penalty as determined by the Designated Authority under the K.V.S. Scheme, 1998 and certificate of immunity from prosecution has been granted by the Designated Authority.
(b) Where the show cause notice was issued to the accused and the importer namely M/s.Best Fabrics and its Partner, Sri. Vaidyanathan (A3). In these cases, importer A1 had filed a declaration that under the K.V.S. Scheme, 1998 at the stage of the show cause notice itself and the Designated Authority had accepted the declaration and determined the amount payable by the importer. After the importers namely M/s.Best Fabrics paid the amount so determined the Designated Authority issued an order under Section 90(2) of the Act, 1998, granting immunity from prosecution.
72. The following Bills of Entry fall under Category (a):
------------------------------------------------------------
S.No. Bill of Date of Date of Page Volume
in C.C. Entry payment of KVS Order
No/Date amount under
determined Section
and amount 90(2) in
respect of accused
------------------------------------------------------------
1. 3507/ 12.3.1999 16.3.1999 35 II
27.1.1994 Rs.1,00,000/-
4. 24599/ 12.3.1999 17.3.1999 97 II
17.7.1993 Rs.2,50,000/-
5. 17945/ 12.3.1999 17.3.1999 133 II
26.5.1995 Rs.2,50,000/-
6. 6406/ 12.3.1999 15.3.1999 167 II
24.2.1993 Rs.2,50,000/-
9. 17948/ 12.3.1999 17.3.1999 213 II
18.3.1993 Rs.1,00,000/-
10. 18687/ 12.3.1999 17.3.1999 245 II
31.5.1993 Rs.50,000/-
------------------------------------------------------------
73. The following Bills of Entry fall under category (b) wherein the importer is M/s.Best Fabrics on the basis of show cause notice filed declaration under K.V.S. Scheme.
------------------------------------------------------------
S.No. Bill of Date of Date of Page Volume
in C.C. Entry payment of KVS Order
No/Date amount under
determined Section
and amount 90(2) in
respect of
accused
------------------------------------------------------------
2. 5418/ All charges
8.2.1994 dropped 54 II
3. 18934/ 24.2.1999 -
3.6.1993 Rs.2,67,136/- 6.4.1999 61 II
7. 9226/ 24.2.1999 -
18.3.1993 Rs.7,70,145/- 6.4.1999 175 II
8. 9223/ 24.2.1999 -
18.3.1993 Rs.7,49,046/- 6.4.1999 181 II
------------------------------------------------------------
74. As far as the imports covered by the Bills of Entry in category (a) immunity from prosecution has already been granted to the accused and hence, no prosecution can be launched after the declaration has been accepted and immunity granted. As far as Bills of Entry covered under category (b) are concerned, it is submitted that the co-noticee who has been issued show cause notice along with the accused had paid the amount as determined by the Designated Authority. At the state of show cause notice, there was no demand of duty against the accused and penalty was not quantified. Once the proceedings against importer namely M/s.Best Fabrics, A1, comes to an end, the proceedings against the accused Sri. Bharath Bhushan Goyal, A2, will also come to an end. When immunity from prosecution has been granted to the importer, A1, the accused cannot be prosecuted. When the prosecution against the importer is not sustainable, the case of conspiracy cannot be sustained. When the main accused is entitled to immunity from prosecution, the accused will also be entitled to the same relief.
75. Where the show cause notices were issued to the accused and the importer namely M/s.Best Fabrics and its Partner Sri. Vaidyanathan, the importer had filed a declaration under the K.V.S. Scheme, 1998 and the Designated Authority had accepted the declaration and determined the amount payable by the importer. After the importer namely, M/s.Best Fabrics paid the amount so determined, the Designated Authority issued an order under Section 90(2) of the Act, 1998, granting immunity from prosecution.
76. The co-noticee who has been issued show cause notice along with the accused in respect of Bill of Entry No. 38017 dated 12.10.1994 had paid the amount as determined by the Designated Authority. At the stage of show cause notice, there was no demand or duty against the accused and penalty was not quantified. On the proceedings against importer comes to an end namely, M/s.Best Fabrics, A1, the proceedings against the petitioner, Sri. Bharath Bhushan Goyal, A3, will come to an end. When immunity from prosecution has been granted to the importer, A1, the petitioner cannot be prosecuted. When the prosecution against the importer is not sustainable, the question of conspiracy will cease to exist. When the main accused is entitled to be acquitted or discharged, the accused will also be entitled to the same relief.
77. The adjudication order was passed against importer M/s.Best Fabrics on 7.6.1996 pages 1 to 42 Vol.I, confirming a duty demand of Rs.51,82,518/-. Pending appeal before the CEGAT, the importer filed K.V.S. Declaration and the Designated Authority issued a certificate in full and final settlement of tax under Section 90(2) read with Section 91 of the Finance Act No. 2 of 1988 granting immunity at page 3 of the additional typed set. Based on the Immunity Certificate, the case of the petitioner and M/s.Best Fabrics was closed by an order of the CEGAT dated 18.12.2003 at page 5 of the additional typed set. Hence, the case of the petitioner co-noticee and importer M/s.Best Fabrics were closed. All cases, which are the subject matter of both the charge sheets instituted on 12.4.1999, have been settled under the K.V.S. Scheme 1998. There is no dispute about this fact by the respondent. In fact, the stand of the respondent in the counter affidavit dated 16.10.2003 in Crl.O.P.No. 20699 of 2003 in paragraph 4 is that "the authorities under the K.V.S.S. ought to have awaited the result of the investigation before passing any order under K.V.S.S." Hence, it follows that the declarations have been accepted by the competent authority, the duty has been paid and accepted and immunity granted Therefore, the matter has to be treated as closed. The authorities were aware of the whole proceedings, yet the declaration was accepted and immunity granted The allegation of loss of duty does not hold good any longer. The contention of the department that payment of 50% tax does not absolve criminal liability also goes against the purport and intent of K.V.S. Scheme. Once the declaration was made under the K.V.S. Scheme and accepted by the Government, the immunity was granted against prosecution unreservedly.
78. If the prosecution has been instituted prior to the filing of the declaration under Section 88 of the Scheme with respect to offences set out in the Scheme, the K.V.S. Scheme will not be extended and the immunity will not be granted. In other words, if prosecution is not filed on or before the filing of the declaration for the offences under the Acts set out under Section 95(iii), the exclusion does not apply to the applicant and the prosecution cannot be instituted for offences under the Acts mentioned therein. The Acts inter alia, which are mentioned therein will cover offences under Section 120B and 420, I.P.C. and also the Prevention of Corruption Act. It therefore follows that no prosecution under the Act mentioned in Section 95(iii) can be instituted after the filing of the declaration under Section 88 of the K.V.S. Scheme. Consequently, the accused cannot also be prosecuted under Sections 468 and 471 since Section 95(iii) does not deal with these offences. If the purpose of the scheme was to prosecute under the Acts mentioned under Section 95(iii), the exclusion clause would not have specifically mentioned those enactments. It therefore follows that if the prosecution is not instituted prior to the filing of declaration under Section 88, then the prosecution cannot be instituted afterwards and if so filed, will not be maintainable and will be without jurisdiction. As far as the other offences are concerned, there is no exclusion and once the declaration has been filed under the K.V.S. Scheme, there cannot be any prosecution for other offences unless the declaration is rejected. In these cases, it is an admitted fact that the declaration was made in respect of all the cases covered by the two charge sheets before the prosecution was instituted. The declaration was filed before 31.12.1998 and on other dates when the scheme was applicable and it was accepted by the authorities and necessary orders were passed thereon directing the declare out to pay the duty determined and granting immunity from prosecution.
79. After the judgment reported in 2003 AIR SCW 2735, there is no scope for any doubt regarding this. It has been stated at page 2739 paragraph 3 as follows: "On the one hand final settlement was made after determining the tax liability on the premises that the appellants were neither convicted nor criminal proceedings were pending, relating to any offence under Chapter IX or XVII of the I.P.C., yet the criminal proceedings are being prosecuted which is apparently against the very spirit of the Scheme promulgated under the Finance (2) Act of 1998." It has been further held at page 2740 as follows: "The declarant could not be dragged and chased in criminal proceedings after closing the other opening making it a dead end. It is highly unreasonable and arbitrary to do so and initiation and continuance of such proceedings lack bonafides." Further, it has been stated in paragraph 4 at page 2740 as follows: Later on, the declarant could not be continued to be subjected to criminal prosecution to alter the position as it stood on the relevant date of the submission of declaration and get him convicted for such offences in respect of which, if he stood convicted earlier while filing statement he would not have been entitled to seek the benefit under the scheme." In paragraph 5 page 2741 His Lordship Mr. Justice Brijesh Kumar quashed the proceedings under Section 420 read with 120B of the I.P.C.
80. His Lordship Dr. Justice A.R. Lakshmanan has also dealt with the case separately. Reliance was placed on the case reported in Sushila Rani versus Commissioner of Income Tax and others . His Lordship has also set out the various provisions of the K.V.S. Scheme at page 2748 and clauses (ii) and (iii) of Section 95 of the K.V.S. Scheme, which excludes the application of the scheme to an applicant against whom prosecutions had been instituted before the filing of the declaration. In paragraph 25 page 2750, His Lordship has stated that Sections 166 to 177 of Chapter IX of the Indian Penal Code deal with offences relating to public servants. Likewise, Sections 378 to 462 of Chapter XVII of the Indian Penal Code deal with offences against property. Thus immunity is granted to the persons in respect of whom the offence is punishable under Chapter IX or Chapter XVII of the Indian Penal Code.
81. In paragraph 29 (page 2751) His Lordship has stated as follows:
" Moreover, as per the Kar Vivad Samadhan Scheme, 1998, whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence for evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable. "
82. In paragraph 32 (page 2753), it is stated as follows:
" On a reading of the judgment in the case of Sushila Rani (supra), it is clear to us that if an assessee takes the option under this Scheme, he obtains immediate immunity under any proceeding under any and all laws in force. As such the present proceedings initiated under Section 120B read with Section 420 of the Indian Penal Code are bad and have to be quashed with immediate effect."
83. In paragraph 34, Their Lordships have clearly held that "if the disputed demand is settled by the Authority and pending proceedings are withdrawn by an importer, the balance demand against an importer shall be dropped and the importer shall be immuned from penal proceedings under any law in force".
84. Hence, it follows from the above that it includes any law in respect of which prosecution is initiated and not only the Customs Act as contended by the prosecution. The judgment is definite that no penal proceedings under any law could be sustained. The only exception is in cases where the prosecution is instituted prior to the filing of the declaration is in respect of Acts mentioned in Section 95(iii) the Scheme will not apply. It therefore follows that if the prosecution is not instituted prior to the date of declaration the prosecution instituted after the filing of declaration will not be maintainable and is without jurisdiction. Admittedly, the declaration in the petitioner's case and that of M/s.Best Fabrics was prior to the date of institution of the prosecution. His Lordship, in 2003 AIR SCW 2735 states in paragraph 35 page 2754 as follows: "the true fact and impact of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said scheme is availed of and all the formalities complied with including the payment of the duty, the immunity granted under the provisions of the Customs Act, 1962 also extends to such offences that may prima facie be made out on identical allegations i.e., of evasion of customs duty and violation of any notification issued under the said Act." His Lordship agreeing with His Lordship Mr. Justice Brijesh Kumar, quashed the proceedings. His Lordship has once again reiterated at page 45 (page 2757), that the persons who have availed the benefit of the Scheme are absolved from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. Hence, on the basis of the judgment of the Hon'ble Apex Court extracted above, the proceedings before the trial Court will have to be quashed.
85. The gravemen of the charge is that there was evasion of duty. Once the declaration made under the K.V.S. Scheme is accepted and the duty determined is paid, there is no question of evasion of duty thereafter and if the case cannot be dealt with under the provisions of the Customs Act, then it equally cannot be dealt with under any other enactment because the basic ingredients to establish the case of the prosecution is evasion of duty or cheating the Government of its duty. The duty has already been paid under the K.V.S. Scheme and accepted by the Government, which gives immunity to the person who files the declaration. Hence, even on this ground, the charge of evasion of duty cannot be sustained and the whole case will have to fail. The contention of the prosecution that the question of forgery of documents will have to be gone into during trial does not have any basis, for in the trial proceedings the issue which will have to be gone into is whether any such acts were committed and whether any loss of duty was caused thereby. The allegation in charge sheet is evasion of duty. When once the evasion of duty has been settled under the scheme, all other issues become redundant.
86. In Criminal O.P.Nos.20698 and 20699 of 2003, the respondent has filed counter affidavits dated 5.8.2003 and 16.10.2003 and 23.3.2004. One of the contentions raised by the respondent is that the F.I.R. in this case was registered on 2.3.1995 and the investigation was going on. It is further stated that the offence alleged against the accused, which included public servants, viz., the officials of the Customs Department were under Sections 120-B, 420, 468, 471, I.P.C. and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 132 and 136 of the Customs Act. That public servants are also tried along with the private persons and therefore, it is submitted that the prosecution is exempted from the application of K.V.S. Scheme as per Section 95(iii). In paragraph 4 of the counter affidavit in Crl.O.P.No. 20699 of 2003, it is stated that "in cases involving an offence of criminal misconduct by a public servant, abusing his official position as such, public servant criminal proceedings are instituted by filing of complaint and registering of F.I.R. It is investigated and the charge sheet is filed." "In this case, the investigation was in progress and the authorities under K.V.S. Scheme ought to have awaited for the result of the investigation before passing any order under the K.V.S. Scheme." From the above it is clear that the authorities have totally misread the provisions of Section 95(iii) of the K.V.S. Scheme. Firstly, as per Section 95(iii) of the K.V.S. Scheme, it is clear that the K.V.S. Scheme will not be applicable, only in a case where prosecution has been instituted on or before filing of the declaration. It is an admitted fact that the prosecution in this case was instituted on 12.4.1999 long after the K.V.S. Declarations were filed. Secondly, the charge of evasion of duty will not be available as the duty claim has been settled by the Designated Authority under the K.V.S. Scheme. Thirdly, the Designated Authority has granted immunity after accepting the declaration.
87. The other contentions of the Department are that the F.I.R. was registered in March, 1995 but the K.V.S. Scheme came into effect in the year 1998 when the declaration came to be filed and immunity was granted in the year 1999. Even though the charge sheet was filed in April, 1999, the date of filing the F.I.R. will be the relevant date. Hence, according to the department, prosecution was instituted when F.I.R. was lodged in 1995. In this connection, the petitioners have drawn the attention of this Court to the decision of the Hon'ble Supreme Court in the case of Narsingh Das Tapadia versus Goverdhan Das Partain and another, , the relevant paragraphs of the judgment are set out in paragraphs 8 to 10, which are extracted for better appreciation of the case.
" "Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence, it must be shown that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of Narayandas Bhagwal V. State of West Bengal. and Gopal Das Sindhi V. State of Assam and Anr. AIR 1961 SC 986. "
88. This Court, in NIRMALJI SINGH HOOM V. THE STATE OF WEST BENGAL , observed:
" Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can, under Section 200, take cognizance of the offence made out therein and has then to examine the complaint and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a Magistrate subordinate to him or by a Police Officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint, if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment 'no sufficient ground for proceeding'. "
89. Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later, and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Again this Court, in D.LAKSHMINARAYANA REDDY & OTHERS V. V.NARAYANA REDDY & OTHERS , dealt with the issue and observed:
" What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. "
90. This clearly establishes that mere filing of an F.I.R. will not amount to institution of the prosecution. The presumption drawn by the Department is therefore not sustainable in law. The date when the Court takes cognizance will be the date of institution of the prosecution. Sections 190, 191, 192 and 197, etc., of Cr.P.C. will be relevant on this issue. Hence, in this case, the prosecution was instituted in April 1999, and the declaration was earlier. Hence, Section 95(iii) will not be applicable and the immunity granted will be a bar for proceedings in C.C.Nos.34 and 35 of 1999.
91. Even as per the counter affidavit when they have clearly stated that the authorities should have awaited the result of the investigation before passing an order under K.V.S. Scheme will go to establish that the prosecution was not instituted on the date when the K.V.S. Scheme declaration was accepted. Once the authorities under the statutes have accepted the declaration and granted the immunity, the prosecution instituted by the respondent on 12.4.1999 before the trial Court will be without jurisdiction and will amount to sitting in judgment over the order of immunity granted by the appropriate authority under the K.V.S. Scheme. Another factor which has to be considered is that even as per the Charge Sheet loss has been caused to the Customs Department by way of evasion of duty. If that be so, the authorities ought not to have settled the matter under the Scheme and granted the immunity. Once the declaration is accepted and immunity granted, the respondent cannot once again reopen the issue of evasion of duty under the provisions of the Customs Act, as has been done in this case. If there is no evasion of duty and if the provisions of the Customs Act are not applicable to the petitioners/accused, then all the other allied acts will have no relevance and the prosecution will be totally unwarranted, besides, it will be an abuse of the judicial process as held by the Hon'ble Apex Court in the case of HARILAL HARI, BAGWATI Versus C.B.I., New Delhi. The fact that in similar circumstances the Hon'ble Supreme Court has quashed the F.I.R. itself will go to show that once the matter is settled under the K.V.S. Scheme, there is no purpose in prosecuting the persons concerned under any law for the time being in force.
92. Since all the imports were governed by the K.V.S. Scheme, the prosecution in respect of the same is not maintainable. It is pertinent to note that the Customs Department has accepted the immunity granted under the K.V.S. Scheme and that is why, in their presence, after hearing them, the proceedings under the Customs Act filed in R.R.No. 13 of 1994 relating to the petitioners and others was closed by the Additional Chief Metropolitan Magistrate, E.O-1 by order dated 17.8.1999. None of the charges can be considered without considering the violation of the Customs Act.
93. In AIR 1987 SC 1448 (GURU BIPIN SINGH V. CHONGTHAM) the Supreme Court has held that where the principal allegations and the offence found on them fail, the consequential offence cannot be tried. In this case, the principal offence is evasion of customs duty and contravention of the Customs Act therefor. If the principal offence could not be tried, the offence of forgery one under the Prevention of Corruption Act also cannot be tried being consequential offence.
94. Under the K.V.S. Scheme, there is in effect a compromise between the Central Government and the petitioners such that the Central Government has agreed to receive 50% down payment of duty imposed by it and waive the rest. In DUNCANS AGRO INDUSTRIES case , it is laid down by the Supreme Court that even a compromise between the parties outside the criminal Court amounts to compounding of the offence. If there is no element of cheating and if evidence cannot be let in on this aspect, the whole of other charges will have no basis at all.
95. By applying under the K.V.S. Scheme, the petitioners have given up their right to challenge the order imposing duty. After recovering monies under the scheme, the person cannot at all be directed to face prosecution on the same set of facts. It will not subserve the object of the K.V.S. Scheme and to encourage the litigants to pursue the settlement provisions mentioned under the scheme.
96. As regards A-4 in C.C.No. 34 of 1999 and A5 in C.C.No. 35 of 1999, Assistant collector of Customs, the contention is that he had no means to have personal knowledge of the change in the description of the goods to evade duty. When the petitioner countersigned the Bills of Entry, the description of the goods was only as "cotton Fabrics" and after his countersignature, the petitioner had no occasion to deal with the delivery of the goods officially. The petitioner had no occasion to physically verify the goods at the time of countersignature. According to the petitioner he will go only by the documents presented to before him and he will not physically check the goods imported by the importer. He has to only see that the description of goods mentioned in the Import Licence, Duty Exemption Entitlement Certificate tally with the descriptions stated on the Bill of Entry and relative invoice. If everything is tallied then he will put his countersignature only on the front page of the original Bill of Entry and that too only after the above said documents are properly verified, scrutinised and assessed by the Appraisers working under him. In these cases description of goods mentioned in the Bill of Entry and Invoice tallied with those described in the Import Licence and Duty Exemption Entitlement Certificate. He need not physically check the goods since the job of physically checking of the imported goods and allowing clearance of such imported gods out of Customs Control is done by the different set of officers i.e., Appraisers and Assistant Collector of Customs in charge of Docks or authorised Customs Warehouse Station where the imported goods are stocked.
97. According to the petitioner he has a limited duty to do cursory check of the Bill of Entry and the connected documents which has been thoroughly scrutinised by his appraiser. The petitioner is not the proper officer to allow clearance of goods in question out of Customs control. Therefore it is not correct to state that the petitioner had allowed the dutiable goods without Customs Duty.
98. Out of the Nine charges, charges 1, 8 and 9 are against the petitioner. The first charge is for the alleged offence of conspiracy, the 8th charge is for the alleged criminal misconduct under the Prevention of Corruption Act 1988 and the 9th charge is for the alleged connivance punishable under Section 136 of the Customs Act, 1962. There is no specific charge for alleged offences under Section 420, 467, 468, 471 r/w. 468 of IPC against this petitioner. Under these circumstances the offence U/2.120B of IPC 13(2) r/w 13(1) (d) of Prevention of Corruption Act and Section 136 of Customs Act would not come into play as simplicitor because the entire alleged episode has taken place by producing forged documents. The alleged conspiracy cannot be inferred from the solitary instance of mere countersignature. There is no material to show that where the conspiracy has been hatched. A perusal of the records would show that at the time of countersigning done by the petitioner, the descriptions of invoice and declarations on the Bill of Entry tallied with those descriptions stated in the Licence and Duty Exemption Certificate. If any fabrication or manipulations of documents which had been done in the documents after the same had left from the petitioner's table, he cannot beheld responsible and liable.
99. The learned counsel for the petitioner would contend that the countersignature of the Assistant Collector is merely a token of a check exercised by him, and it cannot be said that this check makes the assessment order as that of the Assistant Collector as found in Standing OrderNo. 101/71 Customs House, Madras dated 20.9.1971 and Public Notice No. 178/71, dated 20.9.1971.
100. It is the admitted case of the respondent also that this petitioner has countersigned only on the front page for import of cotton fabrics. If the fabrication and manipulation of documents had been done on the duplicate Bill of Entry and allied documents after the above documents have been taken away from the petitioner's table he cannot be held responsible and liable. According to the Notification No. 204/92, Cus.dt.19.5.1992 issued by the Government of India, Ministry of Finance, New Delhi relating to the Clearance of imported goods through customs under DEEC Scheme, the said licence and the said certificate are produced before the proper officer of Customs at the time of clearance of imported goods out of Customs Control. The materials both oral and documentary do not disclose any dishonest intention on the part of the petitioner to establish criminal misconduct punishable under the Prevention of Corruption Act. The statement of witnesses examined during investigation do not whisper a word to indicate any corrupt or illegal means on the part of the petitioner to facilitate the other accused to gain any pecuniary advantage.
101. According to the petitioner there is no direct and specific charge against him for offences under sections 420, 467, 468, 471 read with 468 IPC and in these circumstances, the offence U/s. 120B IPC 13(2) r/w 13(1)(d) of the Prevention of Corruption Act would not come to play as simplicitor, because the entire episode has taken place by producing forged documents. When there is no specific charges for these offences under Sections 420, 467, 468, 471 r/w 468 IPC., the consequent offences under Section 120 IPC and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act cannot be framed against the petitioner. It is the admitted case of the respondent that it was the Appraiser and other officials concerned with the Customs House who had the duty to physically verify the goods before and at the time of clearing the goods. Standing Order No. 101/71 Customs House, Madras dated 20.9.1971 issued in pursuance of Instruction No. 13 of 1971 by the Central Board of Excises and Customs states as follows:-
"As the Appraisers make the assessment and the countersignature of the Assistant collector is merely a token of a check exercised by him, it cannot be said that this check makes the assessment order that of the Assistant Collector."
102. The Public Notice No. 178 of 1971, dated 20.9.1971 also states as follows:-
" It is hereby notified for the information of the Trade that where assessment on bills of entry and shipping bills are made by Appraisers, the countersignature of the Assistant Collector is normally done only in a token of a check exercised by him, and that this check does not automatically make the assessment order as that of the Assistant Collector."
103. The above mentioned Standing Order and the Public Notice clearly show that it is the duty of the Appraiser to make the assessment of the Bill of Entry and Shipping Bills and the the countersignature of the Assistant Collector is only a token of check exercised by him.
104. In practice also, it is not the duty of the Assistant Collector to physically verify the goods imported or exported. Even if the available materials are taken as a whole, it will not lead to the conviction of the petitioner and in such circumstances it will be an exercise of futility to go through the trial to its logical end and will amount to abuse of process of law. The petitioner is also retired from service several years ago. The material available on record will establish that the petitioner has only discharged his official duty and there is no reason to come to any other inference of conspiracy to be drawn from the mere countersignature of the petitioner. Therefore, the charges against the petitioner are necessarily to be quashed.
In the result, Crl.O.P.Nos.20698 and 20699 of 2003 filed by Mr. Bharath Bhushan Goyal @ B.B. Goyal, who is an accused in C.C.Nos.34 and 35 of 1999 on the file of the learned X Additional Special Judge, C.B.I. Cases, City Civil Court, Chennai, Crl.O.P.Nos.4495 and 4498 of 2004 filed by Mr. S. Ramanathan, who is an accused in the above-said two cases on the file of learned X Additional Special Judge, C.B.I. Cases, City Civil Court, Chennai and Crl.R.C.Nos.618 and 619 of 2003 filed by M/s.Best Fabrics rep. by its Managing Partner S. Vaidyanathan and S. Vaidyanathan, who are the accused in the above-said two cases pending on the file of learned X Additional Special Judge, C.B.I. Cases, City Civil Court, Chennai, are allowed and the charges filed against them are hereby quashed. Consequently, Crl.M.P.Nos. 5899 and 5901 of 2003 and 1290 and 1295 of 2004 are closed.