Calcutta High Court (Appellete Side)
Ashok Kumar Singh vs State Of West Bengal & Anr on 19 May, 2016
Author: R. K. Bag
Bench: Ranjit Kumar Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
Hon'ble Justice Ranjit Kumar Bag,
CRR No.4062 of 2009 [Reportable]
Ashok Kumar Singh
V.
State of West Bengal & Anr.
For the Petitioner : Mr. Sekhar Kumar Basu,
Mr. Abhisek Sinha,
For the C. B. I. : Mr. Asraf Ali,
Mr. Sankar Banerjee,
Heard on : 20.04.2016 & 27.04.2016
Judgment on : 19.05.2016
R. K. Bag, J.
The petitioner has prayed for quashing of the criminal proceedings of Special Case No.1 of 2004 arising out of Crime No.RC-7/E/96- Calcutta dated August 1, 1996 under Section 120B read with Sections 420/511/468/471 of the Indian Penal Code and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 by filing this revision under Section 482 of the Code of Criminal Procedure.
2. The petitioner was working as Examining Officer, Customs House, Calcutta when the Central Bureau of Investigation initiated criminal proceeding against the petitioner and other co-accused persons. The Superintendent of Police, CBI, EOW, Calcutta registered FIR being Crime No.RC-7/E/96-Calcutta dated August 1, 1996 on the basis of reliable information which is as follows: One Pramod Kumar Kishorepuria promoted M/s Annapurna Yarn Fabrics and M/s Blumenfeld Ltd. for indulging in evasion of customs duty by making false import/export documents supported with false certification issued by the officials of Customs, Calcutta and Silk Board, Bhagalpur by adopting dubious methods. On February 17, 1995 Pramod Kumar Kishorepuria obtained quantity based advance licence No.P/K/02283861/C dated February 17, 1995 from the office of Joint Director General of Foreign Trade, Calcutta for import of 21,000 kgs. of duty free 100% Mulberry Raw Silk with cost insurance and freight (CIF) value of Rs.1,53,73,815/-. The licensee was under the obligation to export 17,500 kgs. of 100% Mulberry Raw Silk made- ups other than dupion yarn at F.O.B. value of Rs.2,07,54,650/-. He had also applied for another licence for similar items under advance licence file No.02/79/040/0020/AM/96 dated April 20, 1995 for import of Mulberry Raw Silk for Rs.82,36,176/- in favour of M/s Blumenfeld Ltd.
3. On April 18, 1995 Pramod Kumar Kishorepuria and other associates of M/s Blumenfeld Ltd. applied for a quantum based advance licence under licence file No.2/79/040/00013/AM/96 dated April 18, 1995 for duty free import of 52,440 kgs. of 100% Mulberry Raw Silk other than dupion yarn for CIF value of Rs.3,71,14,351/- with proposed export obligation of 43,700 kgs. of 100% Mulberry Raw Silk made- ups other than dupion yarn at F.O.B value of Rs.5,01,71,875/-. Having entitled to import 21,000 kgs. of 100% Mulberry Raw Silk by M/s Annapurna Yarn Fabrics, Shri Kishorepuria had imported 13,000 kgs. of Mulberry Raw Silk duly cleared by Customs Authority of Calcutta. Shri Kishorepuria and others of the above two firms in collusion with the present petitioner and one B. D. Biswal, Examining Officer of EIB, one K. C. Ganapati, Prevention Officer of Calcutta Customs and one P. K. Kapoor, Inspector, Central Silk Board stuffed cotton blankets and old silk clothes made into scarves for exporting in the containers which were taken from M/s Shaw Wallace & Co., Kolkata on April 28, 1995 and April 29, 1995, although the above named officials had given authenticity of the contents of the containers on April 27, 1995. The Shipping Bills filed by Pramod Kumar Kishorepuria indicates that the same were prepared ahead of actual packing and certification in collusion with the above officials.
4. On May 2, 1995 the officials of Calcutta Customs received information that the materials sought to be exported against various shipping bills dated April 26, 1995 filed by Shri Kishorepuria were not Silk Fabric as declared. The consignment already loaded in the vessel "M. V. Slavnoe" were detained, unloaded and re-examined by the Special Investigation Branch of Calcutta Customs on May 3, 1995. On re-examination of the containers it was detected that laminated jute rolls of cotton blanket, synthetic sarees and cloth materials of polythene were found whose valuation will be not more than Rs.5,00,000/- in place of declared and certified articles in the containers as made-up of 100% pure Silk valued at Rs.8,00,00,000/- which was duly certified by the Customs Officer of Calcutta and Inspector of Silk Board, Bhagalpur. The present petitioner along with the other officials of Calcutta customs were involved in giving false certificate that the cargo was containing Mulberry Raw Silk scarves duly packed in the containers procured from M/s Shaw Wallace & Co., Calcutta on April 28, 1995. The officials of Calcutta Customs prepared detailed inventory of the articles found in the containers in presence of authorised clearing agent of the aforesaid exporters. These goods were packed in the containers for consignment to M/s Artwai Trading Ltd., P.O. Box. No.8595, Dubai, UAE vide contact no.80/Cal/95 dated March 23, 1995 and M/s Omran Sayed Trading, P.O. Box. No. 53538, Dubai, UAE. Shri Pramod Kumar Kishorepuria being the proprietor of M/s Annapurna Yarn Fabrics and Director of M/s Blumenfeld Ltd. hatched deep rooted conspiracy with the officials of Calcutta Customs including the present petitioner and the officials of Silk Board, Bhagalpur for making bogus export by making false declaration and preparing false documents and thereby cheated Government of India by evading custom duty to the tune of Rs.29,63,889/-.
5. On May 4, 1995 Shri Kishorepuria in connivance with the officials of Calcutta Customs filed a complaint before the Officer-in-charge of Jorasanko Police Station to cover up the fraud and misdeed detected by the Customs officials. Similarly, on May 11, 1995 Shri Kishorepuria in connivance with the officials of Calcutta Customs filed another complaint before the Officer-in-charge of Metiabruz Police Station to cover up fraud and misdeeds detected by Customs officials. On the basis of the said information FIR was registered under Sections 420/511/468/471/120B of the Indian Penal Code against Shri Pramod Kumar Kishorepuria and others including the present petitioner.
6. The CBI investigated the said criminal case and ultimately submitted chargesheet against Shri Pramod Kumar Kishorepuria and officials of Calcutta Customs including the present petitioner on January 27, 2004 before the Special Court (CBI) at Alipore being forwarded by the Superintendent of Police, CBI, EOW, Kolkata. The Court took cognizance of the offence and issued process against the accused persons. One of the accused persons filed one revisional application before the High Court at Calcutta challenging the entire proceeding and as such the hearing of the case before the trial court was delayed inordinately. Ultimately, the application filed by the accused persons including the present petitioner under Section 239 of the Code of Criminal Procedure was rejected by Learned Judge of the trial court. With the above factual matrix the present petitioner has prayed for quashing of the criminal proceeding.
7. Mr. Abhisek Sinha, Learned Counsel for the petitioner contends that the chargesheet submitted by the Inspector of Police was not forwarded by the Superintendent of Police as Officer-in-charge of the police station under Section 173(2) of the Code of Criminal Procedure. He further submits that the sanctioning authority has granted sanction for prosecution of the petitioner under Section 19 of the Prevention of Corruption Act without considering the documents and statement of witnesses collected during investigation of the criminal case and thereby sanction for prosecution is bad in law. By referring to the provisions of Section 155 of the Customs Act, 1962, Mr. Sinha argues that initiation of this criminal proceeding against the present petitioner is barred by Section 155(2) of the Customs Act, 1962. By taking analogy from Section 40(2) of the Central Excise Act, 1944, Mr. Sinha has urged this court to consider the decision of the Supreme Court in "Public Prosecutor, Madras V. R. Raju" reported in (1972) 2 SCC 410 by which the Supreme Court quashed the criminal proceeding for violation of the provisions of Section 40(2) of the Central Excise Act, 1944, which is in pari materia with Section 155(2) of the Customs Act, 1962. Mr. Sinha has also cited unreported decision of Punjab & Haryana High Court in "Sunil Kumar V. Central Bureau of Investigation" (CRR No.250 of 2015 with CRR No.677 of 2015 with CRR No.649 of 2015 with CRR No.1228 of 2015 with CRR No.1556 of 2015 with CRR No.4040 of 2015 decided on February 11, 2016) by which Learned Single Judge of Punjab & Haryana High Court quashed the criminal proceeding for violation of the provisions of Section 155(2) of the Customs Act, 1962. He has also relied on the decision of our High Court in "Ganesh Dutt Sharma V. Central Bureau of Investigation" reported in (2012) 2 C.Cr.LR(Cal) 678 in support of his above contention.
8. Mr. Asraf Ali, Learned Counsel for the Central Bureau of Investigation contends that the Inspector of Police who investigated the case under Delhi Special Police Establishment, has submitted chargesheet, which was forwarded by the Superintendent of Police as Officer-in- charge of the police station under Section 173(2) of the Code of Criminal Procedure. He further submits that the sanctioning authority has considered the entire allegation reflected in the statement of witnesses and the documents collected by the Investigating agency and formed opinion for granting sanction of prosecution of the present petitioner under Section 19 of the Prevention of Corruption Act. Relying on the decision of the Supreme Court in "Assistant Collector of Central Excise, Guntur V. Ramdev Tobacco Company" reported in (1991) 2 SCC 119 Mr. Ali submits that the bar enshrined in Section 40(2) of the Central Excise Act, 1944 is not applicable to criminal prosecution and this decision was not taken into consideration by Learned Single Judge of Punjab & Haryana High Court in "Sunil Kumar V. Central Bureau of Investigation" (CRR No.250 of 2015 decided on February 11, 2016) and as such the said decision of the Punjab and Haryana High Court will be considered as per incuriam without having binding precedent.
9. It appears from the chargesheet that one C. R. Dash, Inspector of Police, Central Bureau of Investigation has submitted chargesheet against the petitioner and other co-accused persons for committing the offence punishable under Section 120B read with Sections 420/511/468/471 of the Indian Penal Code and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. 1988. The investigation is carried out by the Inspector of Police under Delhi Special Police Establishment and as such the investigation is done as per provision of Section 17(a) of the Prevention of Corruption Act, 1988. On consideration of the copy of the chargesheet filed before Learned Judge, 1st Special Court (CBI) at Alipore on January 28, 2004, I find that the said chargesheet is duly forwarded by one Amit Garg, Superintendent of Police, CBI as per provision of Section 173(2) of the Code of Criminal Procedure. The petitioner was working as Examining Officer of Customs, Calcutta at the time of commission of the offence under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and as such sanction is required under Section 19 of the Prevention of Corruption Act for prosecution of the petitioner. It is contended on behalf of the petitioner that the sanctioning authority did not consider the materials collected by the Investigating Agency for granting sanction of prosecution under Section 19 of the Prevention of Corruption Act, 1988. In "Ganesh Dutt Sharma V. Central Bureau of Investigation" reported in (2012) 2 C.Cr.LR (Cal) 678 Learned Single Judge of this court quashed the criminal proceeding against the petitioner on the ground that no offence was made out against the petitioner under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. Learned Single Judge made a scrutiny of the entire office note where officials of different ranks gave their views and the opinion for issuing work order was the opinion of a committee consisting of the petitioner and other officials and as such Learned Single Judge was of the view that no offence was made out against the petitioner. However, in this report Learned Single Judge also observed that the order of granting sanction for prosecution was passed without application of mind as it was not clear whether sanctioning authority had considered the office notes where views have been expressed by the officials of different sections about floating of tender and issuance of work order. In the present case it appears from the sanction order of the Commissioner of Customs, Customs House, Calcutta dated August 29, 2003 that the sanctioning authority has duly considered the allegations reflected in the statement of witnesses and the documents collected during investigation. It appears from the said sanction order that the sanctioning authority found that the present petitioner and one Bansidhar Biswal did not go to the godown of M/s Annapurna Yarn Fabrics and M/s Blumenfeld Ltd. on April 27, 1995 for inspection of five containers, but issued certificates that the said containers contain Silk Fabrics worth Rs.7,95,77,408/-, whereas on re-checking of those containers it was detected that those containers contained jute bag and waste cotton blanket worth Rs.2,46,235/-. On consideration of the entire sanction order for prosecution of the present petitioner and other public servants, I find that the sanctioning authority has duly considered all materials and documents and relevant papers for formation of opinion to prosecute the petitioner and other public servants for the offence punishable under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. Accordingly, I am unable to accept the contention made on behalf of the petitioner that the Commissioner of Customs, Calcutta being the sanctioning authority under Section 19 of the Prevention of Corruption Act granted sanction order mechanically without application of mind. The ratio of "Ganesh Dutt Sharma V. Central Bureau of Investigation" cannot have any application in the facts of the present case.
10. It appears from the FIR registered under Crime No.RC-7/E/96- Calcutta dated August 1, 1996 that on May 2, 1995 the officials of Calcutta Customs received information that one Pramod Kumar Kishorepuria was exporting laminated jute rolls of cotton blanket and cloth materials of polythene under various shipping bills in the containers loaded in the vessel "M. V. Slavnoe" in place of 100% pure Mulberry Raw Silk in collusion with the officers of the customs at Calcutta and Inspector of Silk Board, Bhagalpur. However, the FIR was registered on August 1, 1996 by the Superintendent of Police of CBI. So the prosecution was initiated against the petitioner after lapse of almost 14 months from accrual of cause of action. The question which calls for determination of the court is whether the prosecution against the petitioner is barred under Section 155(2) of the Customs Act, 1962. It is relevant to quote the provision of Section 155 of the Customs Act, 1962, which is as follows:
"155. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.
(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause."
11. In "Public Prosecutor V. R. Raju" reported in (1972) 2 SCC 410 the Supreme Court considered the provision of Section 40(2) of the Central Excise and Salt Act, 1944 and came to the conclusion that the prosecution was barred by the said provision of Section 40(2) of the said Act. In this report the respondents were prosecuted for violation of Rules 9, 53, 64, 67, 68, 70, 71, 66 and 226 of the Central Excise Rules punishable under Section 9(b) and (d) of the said Act and also under Section 420 read with Section 511 and under Section 109 of the Indian Penal Code. Section 40(2) of the Central Excise and Salt Act, 1944 lays down as follows before its amendment on September 1, 1973:
"40(2). No suit, prosecution, or other legal proceeding shall be instituted for anything done or order to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the Act or order complained of."
In the report the cause of action arose in the month of July, 1964 and the prosecution was initiated in the month of May, 1965 i.e. after expiry of six months from the accrual of cause of action. The supreme Court affirmed the order of the High Court which concluded that the prosecution was barred by the provisions of Section 40(2) of the Central Excise and Salt Act, 1944. By taking analogy from the definition of the word "Act" in the General Clauses Act, 1897 the Supreme Court held in paragraph 22 of the report that the words "anything done or ordered to be done under this Act" in Section 40(2) of the Central Excise and Salt Act, 1944 would extend to illegal omissions and infractions of the requirement of the said Act. Thus, non-compliance with the provisions of the statute by omitting to do what the Act enjoins will be "anything done or ordered to be done under this Act."
12. Section 40 of the Central Excise Act, 1944 was amended with effect from September 1, 1973 and the amended provision of Section 40 of the said Act is as follows:
"40. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder.
(2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made thereunder, without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause."
Mr. Sinha, Learned Counsel for the petitioner contends that the provision of Section 40 of the Central Excise Act, 1944 is in pari materia with the provision of Section 155 of the Customs Act, 1962. In "Sunil Kumar V. Central Bureau of Investigation" (unreported decision in CRR 250 of 2015 decided on February 11, 2016) Learned Single Judge of Punjab and Haryana High Court quashed the criminal proceeding against some customs officers for non- compliance of the provision of Section 155(2) of the Customs Act, 1962. Learned Single Judge of Punjab and Haryana High Court relied on the decision of the Supreme Court in "Public Prosecutor V. R. Raju" reported in (1972) 2 SCC 410 (supra). Mr. Ali, Learned Counsel for Central Bureau of Investigation submits that limitation prescribed under Section 155(2) of the Customs Act, 1962 cannot be made applicable in criminal prosecution. He has put forward this argument relying on the decision of the Supreme Court in "Assistant Collector of Central Excise, Guntur V. Ramdev Tobacco Co." reported in (1991) 2 SCC 119. In this report the Supreme Court has clarified that the expression "other illegal proceeding" in Section 40(2) of the Central Excise and Salt Act, 1944 before its amendment in 1973 does not include the adjudication and penalty proceeding under the said Act and as such the penalty proceeding initiated under the Central Excise and Salt Act, 1944 cannot be barred by limitation prescribed in Section 40(2) of the said Act. This report does not lay down the proposition that the criminal prosecution initiated against the officers of the Central Government will not be barred by limitation prescribed in Section 40(2) of the Central Excise and Salt Act, 1944 and as such the ratio of this report cannot be made applicable in the facts of the present case.
13. The petitioner was an Examining Officer of Customs House, Calcutta on the date of commission of the offence for which the criminal proceeding is initiated by Central Bureau of Investigation. The cause of action to prosecute the petitioner and other co-accused persons arose on May 2, 1995 when the containers for export under specific shipping bills were detained in the vessel "M. V. Slavnoe" and cotton blanket and cloth materials of polythene were found in those containers in place of 100% Mulberry Raw Silk scarves which were supposed to be exported by Pramod Kumar Kishorepuria. The role played by the present petitioner is that he omitted to make inspection of the containers at the time of loading of the same and thereby he aided and assisted Pramod Kumar Kishorepuria for making bogus export by making false declaration and preparing false documents and thereby abetted commission of the offence by Pramod Kumar Kishorepuria who cheated the government by evading customs duty to the tune of Rs.29,63,889/-. On scrutiny of the materials available in the case diary I have found that the Commissioner of Customs initiated proceeding under Section 114 of the Customs Act, 1962 against Pramod Kumar Kishorepuria and his two firms - M/s Annapurna Yarn Fabrics and M/s Blumenfeld Ltd. and their manager Shri Ashok Sharma and imposed penalty of Rs.1,50,000/- and Rs.2,35,000/- on Pramod Kumar Kishorepuria as proprietor of M/s Annapurna Yarn Fabrics and Rs.9,94,000/- on Pramod Kumar Kishorepuria as Director and authorised signatory of M/s Blumenfeld Ltd. On October 16, 2003 the Commissioner of Customs (Port), Customs House, Calcutta had intimated the Superintendent of Police, Central Bureau of Investigation, Economic Offences Wing, Kolkata vide no.S-45-32/95/SIB Part-III dated October 16, 2003 that there was no loss of revenue to the Government of India due to fraudulent exports by Pramod Kumar Kishorepuria as the penalty was realised from him. There is specific provision in Section 114 of the Customs Act, 1962 for imposition of penalty for an attempt to export goods improperly from India. The present petitioner as an Examining Officer of the Customs aided and abetted the principal accused Pramod Kumar Kishorepuria in making an attempt to export goods improperly from India and for which the principal accused has paid the penalty imposed on him under Section 114 of the Customs Act, 1962.
14. The petitioner as an Examining Officer of the Customs omitted to perform duty in order to assist the principal accused Pramod Kumar Kishorepuria in his attempt to export goods improperly from India. The provision of Section 155(2) of the Customs Act, 1962 which is in pari materia with the provision of Section 40(2) of the Central Excise Act, 1944 lays down that an officer of the Government cannot be prosecuted after expiry of three months from the date of accrual of cause of action and without giving previous notice in writing of one month for anything purporting to be done in pursuance of the said Act. The word "Act" as defined in the General Clauses Act, 1897 shall include even illegal omissions. Accordingly, the words "anything purporting to be done in pursuance of this Act" in Section 155(2) of the Customs Act, 1962 will extend to illegal omissions and infractions of the requirement of the said Act. The action or omission on the part of the present petitioner as Examining Officer of the Customs for assisting the principal accused Pramod Kumar Kishorepuria for which penalty was imposed on him and paid by him under Section 114 of the Customs Act, 1962 will come within the ambit of "anything purporting to be done in pursuance of this Act" appearing in Section 155(2) of the Customs Act, 1962. As a result, the criminal prosecution against the present petitioner will be barred after expiry of three months from the date of accrual of cause of action and without giving notice in writing of one month as laid down in Section 155(2) of the Customs Act, 1962. The present criminal proceeding initiated against the petitioner after about 14 months from the date of accrual of cause of action is, thus, barred under Section 155(2) of the Customs Act, 1962. Since the criminal proceeding against the petitioner is barred by limitation, the continuation of the said criminal proceeding against the petitioner will be an abuse of the process of the court. So, I invoke my power under Section 482 of the Code of Criminal Procedure for quashing the said criminal proceeding against the petitioner.
15. In view of my above observations, the Special Case No.1 of 2004 arising out of Crime No.RC-7/E/96-Calcutta dated August 1, 1996 under Section 120B read with Sections 420/511/468/471 of the Indian Penal Code and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 pending before the Court of Learned Judge, Special Court (CBI), Alipore is quashed so far as the present petitioner is concerned. Learned Judge of Special Court (CBI), Alipore is directed to proceed with the hearing of Special Case No.1 of 2004 so far as the other accused persons are concerned and to dispose of the same as early as possible. Criminal revision is, thus, allowed.
Let a copy of this judgment and order be sent down to the Learned Court below for favour of information and necessary action. The urgent photostat certified copy of the judgement and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)