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(iii) Except the appellant in Crl.A.Nos.102 to 104 of 2003, all other accused are Exporters and clearing Agents. The exporters export finished leather to foreign countries as per the orders of the buyers. In this case, the exporters after packing the leather consignments and preparing the packing list, invoice and declarations, process declaration and duty drawback declaration signed by the appellant in Crl.A.No.792 of 2003 and other accused viz. M/S. Triumph Leathers and M/S.B.V.Leathers on behalf of other exporters submitted the documents to their Customs House Agent namely, M/S.Mubin and Co by P.W.12. The export documents such as Shipping bills were prepared by the typist of P.W.12 and since P.W.12 is a clearing agent, they obtained signature by P.W.16 in the shipping bills and P.W.10 submitted, the export documents such as shipping bills, Invoices, Packing lists and declarations to the Export documentation Centre, Customs House, Chennai, for export of consignments relating to Exs.P25, P28, P31 and P43 for the assessment by the Customs Authorities (P.W.9 and 15) and the said documents were assessed by P.W.9 and open order of relevant bundles were passed by P.W.15 and returned the export documents to P.W.10 for further necessary action at the Docks. P.W.10 in turn handed over the said export documents to P.W.11 for examination of bundles in the consignment at Docks by Appraiser Ramkumar in these cases. The said documents were verified by P.W.8 and placed before Ramkumar for open and examination of bundles and passing "Let Export" order in the reverse side of the shipping bills. The case of the prosecution is that Ramkumar demanded Rs.3,000/- per shipping bill for passing "Let Export" order as the leathers were not finished due to the absence of protective coat and dyeing and did not pass the "Let Export" order and informed the same to P.W.11-Ramaiah, who in turn informed P.W.12 over phone about non-passing of "Let Export" order. P.W.12 came to the docks and met Ramkumar, Appraiser and obtained "Let 'Export" order in the shipping bills.

10.As per the evidence of P.W.10, P.W.11 and P.W.12, after following the procedure, P.W.11 obtained permission for examination of the leather bundles from A.O. in 'O' yard at Chennai Port and obtained an order for open examination. He handed over the same to the appellant/Ramkumar, is an Appraiser, who inspected the products. But he has not immediately issued "Let Export" order. Hence P.W.11 intimated the same to P.W.12. Then only P.W.12 has obtained an order of "Let Export" from the appellant/Ramkumar. Admittedly, P.W.11-Ramaiah was treated as hostile witness. Even though P.W.12 has not deposed about the payment and receipt of the amount other than legal remuneration, he was not treated as hostile witness. It is well settled principle of law, the evidence of hostile witness can be looked into. On perusal of the evidence of P.W.10, P.W.11 and P.W.12, it has proved that there is a conspiracy for passing an illegal order "Let Export" by the accused Ramkumar with exporters and clearing agents.

23. The learned Special Public Prosecutor for C.B.I. cases would rely upon the judgment reported in A.I.R. 1963 SC 1116 (M.Narayanan Nambiar v. State of Kerala), in which, it is held as follows:

"The juxtaposition of the word 'otherwise' with the words "corrupt or illegal means", and the dishonestly implicit in the word "abuse" indicate the necessity for a dishonest intention on the part of the public servant to bring him within the meaning of the clause."

24.Considering the citation along with the facts as already stated above, the appellant/Ramkumar as an Appraiser in the Customs Department and so he is a public servant. If the exporters exported the finished leathers, they are entitled to customs duty exemption and duty drawback. To enhance and promote the export, the Government has given customs duty exemption as well as duty drawback to the Exporters. As the appellant is an appraiser, after he gone through the material, even he is well known that the material to be exported is not a finished leather, issued "Let Export" Order. So the evidence of P.W.11 and P.W.12 would clinchingly prove the guilt of the accused beyond reasonable doubt that the appellant/Ramkumar abuses his position and made an order "Let Export". In such circumstances, I am of the view that the appellant/Ramkumar has abused his official position for the benefit of the exporters for pecuniary advantage on customs duty exemption and duty drawback. The learned Special Judge considering the oral evidence of P.W.11 and P.W.12, convicted the accused based on the materials available on record. Hence I do not find any reason warranting interference with the conviction passed by the learned Special Judge for the offence under Section 13(2) r/w 13(1)(d) of P.C.Act. I am of the view that the learned Special Judge has correct in held that the appellant/Ramkumar was found guilty for the offence under Section 13(2) r/w 13(1)(d) of P.C. Act.

26.On perusal of the record, P.W.11 and P.W.12 alone have deposed about the handing over of the relevant documents for obtaining "Let Export" order. But admittedly, P.W.11 and P.W.12 have not deposed that the appellant/Ramkumar herein has demanded money for passing "Let Export" order. It is pertinent to consider the evidence of P.W.20, who recorded the statement of P.W.12 under Section 164(1) Cr.P.C. was marked as Ex.P50, in his evidence, his candid admission is that he recorded the confession of the accused. But P.W.12 is not an accused before the Court and he was not cited as an accused in the charge sheet. So the statement of P.W.12 is only a statement of witness, since he was arrayed as witness in the charge sheet and also examined as witness. Furthermore, it is worthwhile to mention the argument of learned senior counsel for the appellant/Ramkumar that the confession of the co-accused cannot be relied against the co-accused. As per Section 30 of Evidence Act, the confession statement of the co-accused will be admissible or applicable, if the joint trial of both the accused has been ordered. Since P.W.12 is not an accused, I am of the view that the statement recorded by P.W.20 under Ex.P50 is only the statement of witness as per Section 164(5) Cr.P.C. and Ex.P50 is not a substantial piece of evidence and not reliable.