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Showing contexts for: customs act section 137 in Cc No. 143/2015 Cbi vs . Ashok Kohli & Ors. Page No. 1 Of 85 on 31 August, 2015Matching Fragments
6. Based on the above facts, a charge sheet for commission of the offences punishable U/s 120B r/w Section 13(1)(d) & Section 13(2) r/w Section 13(1)(d) of the PC Act and Section 135 of the Customs Act was ultimately prepared and filed against the accused persons in this court. Except A2, who was an official of the Engineering Department of Air India and hence, a public servant, all the other four accused persons are private persons and prior to the filing of the charge sheet, the necessary sanctions required U/s 19(1)(c) of the PC Act for prosecution of A2 and Section 137 of the Customs Act for prosecution of all the accused persons under the said Act were also obtained by the CBI from the competent authorities under the above said Acts. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 6 of 85
18. PW9 Sh. Virender Singh was posted as Commissioner of Customs at the relevant time and he has accorded the sanction Ex. PW9/A, U/s 137 of the Customs Act, for prosecution of all the accused persons for the offence punishable U/s 135 of the Customs Act.
19. PW10 Sh. Badre Alam is an exemployee of one Hotel Azeem (wrongly typed as Azmi in his statement) in Jama Masjid area and he says that A3 and A5 used to visit their hotel, where persons intending to visit abroad and viceversa used to stay. He claims that A3 CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 12 of 85 and A5 used to bring Indian currency and to purchase foreign currency from the guests staying in their hotel and in July 1995, both the above accused bought foreign currency worth about Rs. 4 lacs from the guests of their hotel and even prior to that, they bought foreign currencies in exchange of gold biscuits.
36. A3, A4 and A5 in their almost identical statements have all denied their being part of any criminal conspiracy with A1 or A2, in furtherance of which they allegedly used to contribute or arrange some Indian or foreign currency amounts and to hand it over to A1 for purchase of any gold from abroad by A1, to be smuggled into India illegally, as alleged. They all have stated that the making of the disclosure statement Ex. PW2/1 (D23) by A1 may be a matter of record, but the same was extracted from him forcibly. A3 and A5 have also denied the making of their alleged disclosure statements Ex. PW2/2 (D24) and Ex. PW13/A (D28) respectively while claiming that the same were forcibly extracted from them and nothing in pursuance thereof was ever recovered. They have also specifically denied the pointing of any place, i.e. Hotel Azeem, by PW5 vide the pointing out memo Ex. PW13/B (D29) and they further specifically claimed that they had never visited the above hotel or PW10 Badre Alam for purchase of any foreign currency, by exchange of gold biscuits or otherwise, to be handed over to A1 to facilitate the above smuggling of gold, as alleged, and it is further claimed by A3 and A5 that PW10 Badre Alam has deposed falsely against them as he himself was an accused in FERA cases. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 22 of 85 They all have further claimed that the sanction Ex. PW9/A U/s 137 of the Customs Act for their prosecution was wrongly granted. It is also the case of A4 that he was simply a travel agent by profession and he only used to provide tickets to A1 for consideration and had also received part payments towards the same, but he has nothing to do with his alleged smuggling activities. Though no defence evidence was desired to be led by A3 and A5, but A4 has desired to lead evidence in his defence, likewise A2, though, subsequently, he has also not led any evidence in his defence.
(X)- DEFECTS IN SANCTION
92. Ld defence counsel has also pointed out a material discrepancy and lacunae in the sanction Ex. PW9/A (D30) granted by PW9 Sh. Virender Singh U/s 137 of the Customs Act for prosecution of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 82 of 85 all the accused persons for the offence punishable U/s 135 of the said Act. It is his contention that no sanction of any authority can be termed to be legal if the same is obtained by concealment of some material facts and circumstances from the said authority. He has also pointed out that the above sanction Ex. PW9/A nowhere states that it was granted to any CBI officer for prosecution of the accused persons and the same even nowhere suggests that PW9 was even made aware that the investigation of the case was being conducted by the CBI. As per him, the factum of conduction of investigation by the CBI was concealed from PW9 only because he would not have granted the sanction otherwise as the CBI officials were not competent to undertake any investigation under the said Act. I also find force in the above submission of Ld defence counsel because though the sanction is dated 10.10.1997 and was given more than two years after the commission of the alleged offences, but it nowhere suggests that the above factum of taking over of investigation of the case by the CBI was ever brought to the notice of PW9, who was the authority competent to grant the said sanction. Hence, this sanction obtained against the accused persons can also be termed as vitiated and it has certainly caused prejudice to the accused persons in subjecting them to the present trial, which they might not have been subjected otherwise.