Bombay High Court
Arvind V. Inamdar vs Assistant Collector Of Customs on 20 July, 1987
Equivalent citations: 1989(20)ECC67, 1988(37)ELT21(BOM)
JUDGMENT Ashok Agarwal, J.
1. By this Petition the original accused No. 3 seeks the quashing of the process issued as against him under Sections 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act and Section 5 of the Control of Imports and Exports Act, 1947.
2. The Respondent No. 1 has filed the present complaint against eight accused for the aforesaid offences on the allegation that the accused No. 1, a resident of Surat was knowing the Petitioner - the accused No. 3 who was a clerk in the State Bank at Surat, as the accused No. 1 was an account holder in that bank. The wife of the accused No. 3 was a partner in Pioneer Construction Company and the accused No. 1 used to give contracts of construction to the said firm in the tune of about Rs. 16 lakhs. The accused No. 1 approached the Petitioner for suggesting some person in whose name the accused No. 1 could carry on business benami. The accused No. 1 was to carry on the business of Import of blank TDK audio cassette tapes manufactured at Japan under Duty Exemption Entitlement Certificate Scheme for the purpose of recording the same and re-exporting them. Under the said scheme payment of duty was exempted. The accused No. 1 stated to the Petitioner that he would carry on the entire business himself and the benami will only have to lend his name and offer his signatures as and when required. The Petitioner knew accused No. 2 as he happened to be a cousin of a co-employee of the Petitioner in the State Bank at Surat. The accused No. 2 is a man of straw working on daily wages in the business of accepting Matka bets. The Petitioner introduced the accused No. 2 to accused No. 1 and the aforesaid business was started in the name of Bittu Cassette Recorders and that was in the name of the accused No. 2.
3. It is the case of the Prosecution that in the course of the said business the two consignments of 250 cartons each were received at Bombay. The Petitioner in the company of the accused No. 1 had on or about the 5th or 6th September 1984 come to Bombay and cleared one of the aforesaid cartons from the Customs at the docks. According to the Prosecution of the said consignment, instead of being transported to Surat, was taken to the godown of accused No. 8 at Kurla and it is their further case that instead of using the said cassette tapes for the purpose of recording and thereafter re-exporting them, they were clandestinely sold in the open market. A show was also made of the said cassette tapes being exported out of Bombay by obtaining false 'N' forms from the Municipal authorities to show that the said consignment was transported to Bittu Cassette Recorders at Surat, when the major portion of the consignment was in fact sold in the local market.
4. Now the case as against the Petitioner - the original accused No. 3 is that he is a party to the aforesaid fraud, whereby the accused had deprived the State of the Customs duty payable on the said cassette tapes. Apart from the material reproduced hereinabove as against the Petitioner, it is further case of the Prosecution that on the evening of the 30th September 1984 the accused No. 1 called the Petitioner on phone to the Surat railway station so as to accompany him to Bombay as there was some trouble regarding the consignments of the cassette tapes imported by accused No. 1 in the name of Bittu Cassette Recorders which stood in the name of the accused No. 2. The Petitioner promptly went to the railway station where he found accused No. 2 also present. The three travelled to Bombay and stayed at Hotel Chateu where the Petitioner, at the instance of accused No. 1, entered false names in the hotel register. On the next day i.e. on the 1st October 1984 at 8.00 a.m. accused No. 7 came to the hotel when there was some hot discussion between him and the accused No. 1. At about 9.30 a.m. the accused Nos. 1, 2, 3 and 7 went to the office of one Advocate Sayyad where there was a discussion regarding the seizure of the cassette tapes. They revisited the office of the said Advocate at about 5.30 p.m. when the discussions progressed further and the Advocate advised them that till such time that they accounted for the missing cassettes nothing could be done. On the 2nd of October 1984 the accused No. 1 and the Petitioner visited the godown of accused No. 8 at Kurla when they were summoned by the Customs Officers and their statements came to be recorded. Three statements of the Petitioner came to be recorded during the investigation, one on the 2nd of October 1984, second on the 22nd of October 1984 and the third on the 23rd of October 1984 and this is the entire material collected by the Prosecution as against the Petitioner.
5. Shri Kotwal, the learned Counsel appearing in support of the Petition, has submitted that the learned trial Magistrate had erred in issuing the process as against the Petitioner. According to him there was no prima facie case or material collected by the Prosecution as against the Petitioner which could justify the issue of that process as against the Petitioner. Even if all the material is accepted at its face value, an order of conviction cannot be passed as against the Petitioner. He, therefore, prayed for quashing the said process. [20th July 1987.]
6. In my judgment, the aforesaid contentions of Shri Kotwal are justified and deserve to be accepted. I have reproduced hereinabove the entire material collected by the Prosecution as against the Petitioner and I am of the view that even if the said material is accepted as against the Petitioner, the same cannot result in an order of conviction for the offences with which he is sought to be prosecuted. Shri Patwardhan, however, strenuously contended that this was a case where there was sufficient material placed before the trying Magistrate so as to justify the issue of process and in any event this was not a case of no evidence at all and consequently this was not a case which warranted interference under Article 227 of the Constitution of India or under Section 482 of the Criminal Procedure Code. He pointed out, placing reliance upon each piece of evidence collected against the Petitioner, that the Petitioner must be held to be a party to the conspiracy to the commission of the offences with which the accused are being prosecuted.
7. In my view there is no substance in the aforesaid contentions of Shri Patwardhan. A perusal of the complaint would show that there is no case made out for a charge of conspiracy. Taking all the facts and material collected against the Petitioner into account, it could at best be a case of there being some suspicion against the Petitioner in regard to his complicity in the crime but that is far too short to justify the issue of a process. It has been held in the case of State of Karnataka v. L. Muniswamy and others that for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said to be reasonably possible. In the instant case there is no material on record on the basis of which any tribunal could reasonably come to the conclusion that the Petitioner was in any manner connected with the offences in question.
8. The Petitioner is a Clerk working in a Bank at Surat. The accused No. 1 being an account holder in that bank had got friendly with the Petitioner. Moreover the accused No. 1 used to give construction contracts to the firm Pioneer Construction Company of which his wife was a partner. The Petitioner knew accused No. 2 as he happened to be a cousin of his co-employee in the bank. Now though accused No. 2 is shown to be a man of straw and working on daily wages for accepting Matka bets, no fault could be found with the Petitioner introducing him to the accused No. 1 when the accused No. 1 desired to do some business benami in the name of some third party. If the Petitioner accompanied the accused No. 1 to Bombay on two occasions one for clearing the cassettes from the Customs and the other when part of that consignment was seized, that cannot lead to the inference that he had the knowledge or that he was a party to the offences which were being committed by the other accused. Shri Patwardhan had emphasized that the Petitioner had entered false names in the hotel register and according to him this was a vital evidence connecting the Petitioner with the crime. Similarly act of the Petitioner going to Advocate Sayyad on two or three occasions to seek legal advice on the issue of the seized cassettes would also show his guilty mind. In my view there is no merit in this contention of Shri Patwardhan. If the Petitioner chose to accompany the accused No. 1 from Surat to Bombay, the same could as well be attributed to his friendly relations with accused No. 1 and that could as well be for the purpose of lending moral support to him when his consignment of cassettes had been seized by the Customs. It could as well be that he might have gathered the details of the acts committed by the accused No. 1 during the discussions with Advocate Sayyad. The fact that the Petitioner had entered false names in the hotel register may raise some doubt against the Petitioner but I am not prepared to hold on the basis of that circumstance alone that the Petitioner was a party to the commission of the offences with the other accused.
9. Shri Patwardhan on placing reliance upon the statements of the Petitioner dated the 22nd October 1984 and 23rd October 1984, submitted that the said statements were confessional statements of the Petitioner and the same could be acted upon, especially when they are corroborated by the confessional statements of accused No. 1. In my view there is no merit in this contention. I have gone through the aforesaid statements of the Petitioner and I do not find them to be confessional statements and hence there can arise no question of seeking corroboration thereto. All that the said statements contain are certain admissions and all those admissions have been set out hereinabove as being the material as against the Petitioner and the same cannot lead to an inference that the Petitioner has committed the offences in question.
10. In this view of the matter, the process issued by the trial Court cannot be sustained and the same shall have to be quashed. Rule absolute.