Telangana High Court
State A.P., Rep By Cbi , vs V.V.Srikanth Dev on 25 January, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL REVISION CASE Nos.28 of 2009, 1942, 1947, 1948, 1949 and 1681,1701,1702,1703 and 1704 of 2008 COMMON ORDER:
Crl.R.C.Nos.1942, 1947, 1948, 1949 of 2008 and 28 of 2009 have been filed by the State represented by Central Bureau of Investigation against the common order, dated 16.10.2008, passed in Crl.M.P.Nos.1215 of 2005, 311 of 2006, 950 of 2006 and 628 of 2007 in C.C.No.21 of 2005 on the file of Special Judge for CBI Cases, Hyderabad, whereby the learned Judge allowed the said petitions by discharging respondents/A1 to A9.
2. Crl.R.C.Nos.1681, 1701, 1702, 1703 and 1704 of 2008 have been filed by the State represented by Central Bureau of Investigation against the common order, dated 14.08.2008, passed in Crl.M.P.Nos.1213 of 2005, 1214 of 2005, 949 of 2006 and 627 of 2007 in C.C.No.19 of 2005 on the file of Special Judge for CBI Cases, Criminal Courts Complex, Red Hills, Nampally, Hyderabad, whereby the learned Judge allowed the said petitions by discharging respondents/A1 to A6 for the allegations mentioned in the charge sheet.
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3. Since the parties in all these revisions are common and the point involved in these revisions is also one and the same, all these Criminal Revision Cases are being disposed of by this common order.
4. For convenience, the facts in Criminal Revision Case No.28 of 2009 disclosed hereunder:
5. Rajiv Kumar Agarwal (A1), while working as Deputy Commissioner at Internal Container Depot (ICD), Sanatnagar, Hyderabad allowed the consignments which were booked by M/s Ganesh Yarntex Exports Pvt. Ltd(A-0) vide Shipping Bills Nos.136 to 141, dated 06-01-2001 and the consignments booked by M/s.Aadee Exports and Imports vide shipping bills nos 142 to 1.46 dated 06-01-2001.
6. A2, who was working as Superintendent, and A3, A4 and A5, who were working Inspectors at the said ICD at that point of time handled the consignments, examined the goods and a rubber stamp was put that examined 2 % of the goods as per the laid down procedure and also endorsed the shipping bills though the consignment was found to be of poor quality and not in 3 confirmity with the description of the goods indicated in the shipping bills.
7. Further when A3 to A5 (Inspectors) brought the said matter to the knowledge of A2 that goods under shipping bills 136 to 146 dated 06-0i-2001 are described as "Dyed and Printed Night Wears (Maxies) in Assorted Style", he brought the same to the knowledge of his Deputy Commissioner i.e., A1, who in turn has told A2 that these are Value Cap items and the examination in this case need not pertain to the value of the Goods, but only to the description and quantity. Thereby he asked his subordinates i.e., A2 to A5 to go ahead with the examination.
8. M/s Ganesh Yarntex Exports Pvt. Ltd. (A6) and M/s Aadee Exports and imports (A7) have exported goods which does not match the description shown in the Shipping Bill and that they were exporting undervalued goods to draw the Duty Entitlement Pass Book (DEPB) benefit.
9. Further on 24-01-2001 the Department of Revenue Intelligence (D.R.I), Chennai on receipt of reliable information that M/s Ganesh Yarntex Exports Pvt. Ltd. (A6) and M/s Aadee 4 Exports and Imports have exported goods which does not match the description shown in the Shipping Bill and that they were exporting undervalued goods to draw the DEPB benefit, intercepted the container No. POCU-0200504 which contained consignment booked and cleared from Internal Container Depot, Hyderabad Shipping Bills Nos.136 to 146 dated 06-01-2001. The DRI found that the consignment goods were declared as "Dyed Printed Nightwears (Maxies) in various sizes colours made from PL Woven Fabric. The total quantity was 91,260 pieces and value declared per piece is 6.40 US Dollars. The total value of the consignment i.e., FOB Value is 5.84.00 US Dollars i.e., around Rs. 2.72 Crores.
10. On opening the consignment DRI found that the items inside did not match the descriptions mentioned, and did not tally with shipping bills. The goods found were only partially stitched clothes with very low quality and nowhere near the described items. As such said goods were seized by the DRI and registered a case and the said matter is under investigation by them. But for the intervention of the DRI the said firms i.e., A6 and A7 would 5 have drawn total credit under DEPB benefit to the tune of Rs.41 lakhs.
11. The Public Servants A1 to A5 while working in the said capacity entered into a Criminal Conspiracy with A6 and A7 represented by Sachin Juhnjunwala and Deepak Jhunjunwala respectively and cleared goods of the said firm which did not match the description on the shipping bills in order to give the benefit of the DEPB Credit Scheme to a tune of Rs. 40 lakhs to A6 and A7.
12. Thus Al to A5 have entered into a Criminal Conspiracy with A6 and A7 and abused their positions as Public Servants and allowed substandard material to be exported and allowed the Private parties i.e., A6 and A7 to draw the DEPB benefit and thereby cause wrongful gain to the private parties A6 and A7 and to themselves and corresponding wrongful Loss to the Customs Department. Thereby A1 to A5 committed the criminal misconduct under Section 13(2) r/w 13(1) (d) of P.C. Act, 1988. Further A6 and A7 cheated the Customs Authorities by exporting substandard material sporting and over invoicing the same in 6 order to draw the DEB benefit. Therefore, the acts of A1 to A7 amounts to offences punishable under Section 120-B r/w 420 IPC and 13(2) r/w 13 (1) (d) of PC Act, 1988. Hence, a case is registered under Section 120-B r/w. 420 IPC and Section 13 (2) r/w. 13 (1) (d) of PC Act, 1988 against A1 to A7 as per the orders of SP/CBI/HYD.
13. Basing on the above points, charge sheet was filed against Accused Nos.1 to 9. All the accused filed discharge petitions. The trail Court considering the arguments of both sides, allowed the same. Aggrieved by the said order, the present criminal revision cases are filed.
14. Learned counsel for petitioner mainly contended that the order of discharge passed by the learned Special Judge is against law, improper and incorrect. The learned Special judge erred in evaluating the material available in the case and indulged in appreciation of the documentary evidence as well as the probable evidence that is likely to be adduced by the witnesses in the case even at the stage of framing of the charges and erred in holding that the Court constituted under the Prevention of Corruption Act 7 has no jurisdiction to take cognizance of the offences. The trial Court erred in discharging the respondents herein who did not even file application to discharge them and as such the order is liable to be set aside. Respondents herein i.e., A6 to A9 are liable to be prosecuted along with other public servants and the Court ought not to have discharged the accused. There is ample evidence gathered by the Investigating Agency to substantiate the charges leveled against the accused and mere suspicion is sufficient to frame the charge. At the stage of framing the charges, the Court has to consider the allegations in the charge sheet. Now, it is for this Court to see whether there is a prima facie case against the accused and the Court is not entitled to weight and evaluate the materials placed before the Court and further stated that for prosecuting the accused for the provisions under Indian Penal Code (IPC), as well as under the Prevention of Corruption Act, no notice as contemplated under section 155 of Customs Act is necessary. The provisions of Section 461 of Criminal Procedure Code are not applicable to the facts of the present case. Therefore, requests this Court to set aside the order of the trail Court.
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15. Heard arguments on both sides. Perused the record.
16. The brief facts of the case are that during the period 2000- 2001, the accused A1 to A8 entered into criminal conspiracy among themselves to cheat the Customs Department at Inland Container Deport, Sanathnagar, Hyderabad, in the matter if export of cheat and very small garments of uneven size and shape, which are unfit for use by any age group and have negligible value, in the guise of "Dyed/printed night-wears (maxies) in various style/size/design/colours made from P/L, Woven Fab valued at Rs.300 per piece under Duty Entitlement Pass Book (DEPB) scheme and attempted to export two consignments to Dubai from ICD, Sanathnagar, Hyderabad on 06.01.2001 in the name of M/s.Ganesh Yarntex Exports Pvt Ltd and M/s Aadee Exports and Imports by way of bogus documents.
17. In perusal of the criminal conspiracy A7 and A8 filed export documents including the shipping details bearing No.136 to 146, dt.06.01.2001 in ICD, Sanathnagar. On the basis of the orders of A1, A3 to A5 to examine the cargo covered under SB Nos.136, 143, 144 and 146. A4 examined the cargo covered under SB 9 Nos.137, 138 139 and 145. A3 examined the cargo covered under SB Nos.140, 141 and 142 and all of them made false observations on the shipping bills and examined 2% of the cargo at random for description and quantity and found the goods said to be Dyed/printed night wears (maxis) and inspected the rest. On the basis of these entries, A2 endorsed 'allowed for shipment and let export' on all the shipping bills. Thus, the accused custom officials being public servants abused the official position as public servants with an intention to obtain pecuniary advantage to A6 and A7 and corresponding loss to the Customs Department, Government of India and cleared the said 11 shipping bills. A1 and A2 scrutinized the SBS, did not pass any order to draw sample on any of the shipping bills. The value of the goods is Rs.2,71,88,357/- and on specific information, the Directorate of Revenue Intelligence, Regional Unit, Chennai intercepted the container on 24.01.2001 and examined the Cargo. On examination of cargo, the consignment did not tally with the description given in shipping bills. Representative samples of the said goods were taken in the presence of two independent witnesses. The panchanama drawn during the 10 interception and the statements given by the accused and other witnesses under Section 108 of Customs Act, 1962, before Officer, Directorate of Revenue Intelligence revealed that the accused had violated sections 132 and 135 (1) (a) & (b) (ii) of Customs Act, 1962. Thus, the accused A6 & A7 intended to cheat the Customs Department to claim DEPB credit fraudulently in connivance with the Customs Officials A1 to A5 and the Customs House Agent (A8). A6n and A7 did not furnish any invoices indicating the details of purchase of garments and the export documents were not checked properly by A1 to A5 to verify the aspect.
18. Though the shipping bills were filed in the names of two firms and it was only A7, who actually procured the substandard material and completed false documentation on behalf of both the firms. The statements of A1 to A8 were recorded by the Officers of DRI, Hyderabad and Chennai under Section 108 of Customs Act, 1962 which reveal their involvement in the fraud.
19. A7 created fake purchase bills and also the payments made to the firms through cheques. The sanction was accorded to 11 remove A1 from service and the sanction order was enclosed. There was a competent authority to remove A2 to A5 and the sanction was accorded under Section 19(1) (c) of PC Act, 1988 and 137 (2) (b) of Customs Act, 1962 and the sanction order was also enclosed by the Commissioner, Customs and Central Excise, Hyderabad. A3 was removed from service by the competent authority and sanction order was enclosed by the Commissioner, Customs and Central Excise, Guntur. A6 to A9 was removed from service by the competent authority for prosecution of accused and sanction order was enclosed by the Commissioner, Customs and Central Excise, Hyderabad-II Commissionerate, Hyderabad.
20. Crl.M.P.No.1215 of 2005 is filed by A1, Crl.M.P.No.311 of 2006 is filed by A2, Crl.M.P.No.950 of 2006 is filed by A3 and A5 and Crl.M.P.No.628 of 2007 is filed by A4. The trial Court framed the points whether the said Court has got jurisdiction to try the offences under Customs Act and whether there is any sufficient material to frame charges against the accused officers or to discharge them. The main allegation against the accused is misconduct of investigation and accused Nos.6 to 9 to give false 12 declaration which is punishable under Section 132 and 135 of Customs Act and committed offence under Section 13 of Prevent of Corruption Act.
21. The main contention of the learned counsel for Accused Nos.1 to 5 is that Special Judge for CBI cases, Hyderabad has no jurisdiction to try the offences under Customs Act and relied on certain decisions and also they referred the proviso of Section 11 of Cr.P.C.
22. The State contended that they have examined 38 witnesses and 77 documents. Giving a false information or declaration in respect of the exporting material is an offence punishable under Section 132 of Customs Act and if any duty evades, it is also punishable under Customs Act.
23. It is further submitted that the Commissioner, Central Excise and Customs, Hyderabad confiscated the garments which are found in the containers by conducting panchanama on 24.01.2001 and confiscated the goods from the godown which belongs to A6 to A9. Aggrieved by the same, an appeal No.C/660-662/2004 is filed before the CESTAT, West Zone Bench, 13 Mumbai and orders were pronounced on 17.09.2004 holding that confiscation by the Commissioner of Central Excise, Hyderabad is not proper as the Department has failed to prove the export goods were overvalued. In the absence of any expert opinion regarding the value of export goods or their use and confiscation of the goods was set aside. The said decision was given by the tribunal basing on the same set of facts, which is a fact finding body. The same is reported in 2005 (183) E.L.T. 60 (Tri.Mumbai).
24. The contention of the learned counsel for accused is that the Special Judge for Economic Offences got exclusive jurisdiction in respect of the offences under Customs Act and the said Court is competent to try the connected offences under IPC or Prevention of Corruption Act along with the offences under Customs Act and thus the CBI Court has no jurisdiction.
25. As per the proviso Section 11 of Cr.P.C, no other Court can try other than the specified Court. In this case the offence is under Customs Act i.e., 132 and 135 of Central Excise Act. The A1 to A5 andA6 to A9 may constitute offences under IPC and PC 14 Act, 1988. When the main offence is under Customs Act, only the Court specially established for dealing with offences under Customs act got exclusive jurisdiction to try the cases. Thus, the Special Court for economic offences is appropriate court to deal with the cases under Customs Act and mainly contended that the prosecutions not followed the mandatory provision under Section 155 of Customs Act.
26. As per Section 155 of Customs Act, no proceedings other than the Suit shall be initiated against the Central Government or any officers unless a one month's prior notice in writing intended to proceed has to be given and after expiry of three months from the accrual of such cause, the prosecution cannot be launched. As per Section 108 of Customs Act, as Customs Office is empowered to record the statements including the witnesses and accused and they are substantive piece of evidence and they can be used in respect of the offences punishable under Customs Act, but not in respect of other offences as there is a prohibition under Section 138-B of Customs Act of using such statements for the other Acts. As such, the statements of accused and 15 witnesses regarding the offences under Section Prevention of Corruption Act and offence under IPC are prohibited and cannot be relied upon.
27. The trial Court considering all the facts held that there shall be prima facie material to frame charges either under Section 420 or under Section 120-B, but such material is not found and as such A1 to A5 are discharged including A6 to A9 as the prime offence alleged to be committed by them is under Customs Act and the Court has no jurisdiction to try the offences under Section 132 and 135.
28. Learned counsel for accused Nos.6 to 9 mainly contended that the order of the trial Court is not appropriate and the Special Court for Economic Offences i.e., CBI Court has no jurisdiction to try the cases and also the mandatory provisions of giving show cause notice was not complied with and further the tribunal already held that the expert opinion was not obtained regarding value of the goods.
29. The trial Court rightly considered all the aspects in detail and rightly discharged the accused officers and as such, this 16 Court finds no reason to interfere with the common orders passed by the trial Court.
30. In the result, these Criminal Revision Cases are dismissed confirming the common orders dated 16.10.2008 and 14.08.2008, passed in Crl.M.P.Nos.1215 of 2005, 311 of 2006, 950 of 2006 and 628 of 2007 in C.C.No.21 of 2005 on the file of Special Judge for CBI Cases, Hyderabad and Crl.M.P.Nos.1213 of 2005, 1214 of 2005, 949 of 2006 and 627 of 2007 in C.C.No.19 of 2005 on the file of Special Judge for CBI Cases, Criminal Courts Complex, Red Hills, Nampally, Hyderabad. No order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
______________ P. SREE SUDHA, J Date: 25.01.2024 CHS 2672 17 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL REVISION CASE Nos.28 of 2009, 1942, 1947, 1948, 1949 and 1681,1701,1702,1703 and 1704 of 2008 DATED: 25.01.2024 CHS