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2.Since the accused named in all the above cases are one and the same and the facts are also identical to each other, the present Revisions are disposed of by way of this common order.

3.The brief facts of the prosecution case, which would cover the issues involved in the present five Revisions, are as follows:-

The petitioner herein has been arrayed as the 1st accused in all the above said cases. He is the proprietor of the concern viz., M/s.Majestic Impex, Pudukkottai. The petitioner/A1 entered into a criminal conspiracy with his two brothers-in-law viz., J.Sheik Parith(A2) & J.Basheer Ahmed (A4) for the purpose of evading customs duty and in pursuance to the said conspiracy, the petitioner/A1 executed a Power of Attorney dated 03.06.2010 authorizing the 2nd accused to transact business in the name of the said firm, by handing over Importer-Exporter Code (for short IEC) and Ozone Depleting Substance License (for short 'ODS License') issued by the Assistant Director General of Foreign Trade (in short 'ADGFT'), knowing fully well that those documents are not transferable. It is further alleged by the prosecution that in pursuance of the said conspiracy, the accused 2 & 4 fabricated the original invoices and the original packing lists sent by the exporter viz., M/s.Super Soft Pvt. Ltd., Singapore, in the form of soft copy/electronic form to the e-mail id "[email protected]" of the 2nd accused Sheikh Parith. The 4th accused used to amend the quantity, description and value of the goods in the soft copy/electronic data of the said documents contained in the e-mails received from M/s.Super Soft Pvt Ltd., Singapore, for their convenience and take printouts in the purported blank letter-heads of M/s.Super Soft Pvt Ltd. They forged the signatures of the exporter and affixed the purported rubber stamps in the name of M/s.Super Soft Pvt Ltd. After fabricating the invoices and packing lists, purportedly in the name of M/s.Super Soft Private Ltd, the accused 2 & 4 had given the said forged documents to the Customs House Agent (CHA) viz., one Shri M.Radhakrishnan (A5) to be submitted to Customs Department, Chennai. Knowing fully well that the said documents are forged, the 5th accused Radhakrishnan submitted the said forged documents to the Customs Department and thereby, they evaded the actual Customs Duties due to the Customs Department, Chennai. By adopting the said modus operandi, the accused 1 to 4 had imported various electronic goods viz., O'General Air Conditioners, Sony LCD Televisions, Sanyo Music systems, etc. of different models from M/s.Super Soft Pvt Ltd., Singapore by undervaluing the imported goods; thereby they cheated the Customs Department, Government of India, in the matter of Customs Duty evation to the tune of Rs.11 crores on 84 Bills of Entries of past/already cleared consignments. By the above said acts, the accused persons committed offences punishable under Sections 120B r/w 420, 468 and 468 r/w 471 of IPC and the substantive offences thereof. Hence, the cases have been registered against the accused persons. After the completion of investigation, chargesheets have been filed before the concerned Court. Before the trial Court, the petitioner herein/A1 filed petitions to discharge him from the cases; but, the said discharge petitions were dismissed by the Trial Court by the impugned orders. Aggrieved over the same, the petitioner has filed the present Revisions before this Court.

4.It is the submission of the learned senior counsel appearing for the petitioner that originally the final report was filed by including the customs authorities also and they had been arrayed as A1 & A2, by invoking the provisions of the Prevention of Corruption Act; but on further investigation, their names were dropped as no prosecutable evidence to substantiate the allegation against them(public servants) could be obtained. So far as the petitioner herein/A1 is concerned, he is the proprietor of M/s.Majestic Impex and he has got Import-Export Code (IEC) bearing No.0140010961, dated 22.06.2010 and ODS license bearing No.0450000720 dated 27.04.2010. The accused 2 & 4 are the brothers-in-law of the petitioner herein/A1. The petitioner/A1 had executed a Power of Attorney dated 03.06.2010 in favour of the 2nd accused, his brother-in-law. But, by taking advantage of the said Power of Attorney, the 2nd accused along with the 4th accused conspired and started to import the electronic goods such as Air Conditioners, Music Systems, Pioneer DVD td., from M/S.Super Soft Pvt Ltd., Singapore. The petitioner has only executed a Power of Attorney in favour of the 2nd accused appointing him as his agent for doing lawful business and besides that there is no agreement for doing any criminal act. Hence, for the criminal act committed by the A2 & A4, this petitioner can not be held responsible. In other words, the prosecution is only attempting to create a vicarious criminal liability on the part of the petitioner/A1 for the only reason of his executing the Power of Attorney in favour of the 2nd accused, which could only lead to the creation of civil liabilities, if any, arising on account of such execution of Power of Attorney on his part and certainly it will not put the criminal vicarious liability on the petitioner/A1.

"7.Importer-exporter Code Number- No person shall make any import or export except under an Importer exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General."

The expression "import" occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer who enjoys the 'facility of I.E. Code imports certain goods in the normal course of business on the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal."

i)2002 (2) SCC 135 [Dilawar Balu Kurane Vs. State of Maharashtra]

ii)(2008) 10 SCC 394 [Yogesh Vs. State of Maharashtra].

By relying upon the above said decision, the learned senior counsel for the petitioner submitted that in the instant case, there is no material to proceed against the petitioner; thus, he sought for discharge of the petitioner.

9.Countering the submissions made by the learned senior counsel for the petitioner, the learned Special Public Prosecutor appearing for the respondent-CBI, by filing detailed counters, would contend that there is a prima facie case against the petitioner herein to frame the charges. The circumstance of the execution of Power of Attorney by the petitioner/A1 in favour of the 2nd accused indicates that with a view to keep himself away from the legal complications, the petitioner/A1 executed the Power of Attorney, knowing fully well that with the said Power of Attorney, the accused 2 & 4 would be committing the said offence. The materials produced by the prosecution are sufficient to frame charges against the petitioner herein/A1. The petitioner/A1 and other co-accused had cheated the Customs Department, Government, in the matter of customs duty evasion to the tune of Rs.11 crores. It is further contended by the learned Special Public Prosecutor that the petitioner/A1 had not only given Power of Attorney in favour of his brother-in-law (A2-Sheikh Parith) for using his Importer-Exporter Code number, but also had filed the application before DGFT, New Delhi on 12.07.2010 for issue of license for import of Air Conditioner Split/Window containing HCFC (R-22) of various models. While submitting application, the petitioner has also enclosed Sales Contract dated 02.07.2010 issued by Super Soft Pvt Ltd., Singapore in favour of Majestic Impex, Pudukottai. The payment was done by Electronic Fund Transfer vide BID No.709165508 on 09.07.2010 for Rs.50,000/- through HDFC Bank. The importer has also filed a request for issue of the said license manually on 13.07.2010 in the office of ADGFT, Shastry Bhawan, Chennai and enclosed the E-Com hard copy of the EFT, Profile of the applicant firm details with address as H-II, 39, Poonga Nagar, Railway Station Road, Rajagopalapuram Post, Pudukottai, ANF-2 B, Copy of IEC No.0410010961, Copy of Pan Allotment Letter No.AKZPS1505 M, Copy of VAT No.33254105479 issued by AC-CT/Pudukottai, Copy of Proforma Invoice dated 02.07.2010 of Super Soft Pvt Ltd., Singapore. Director General of Foreign Trade vide letter No.01/53/8/196/AM11/M-17/I C, dated 07.09.2010 conveyed clearance of import of restricted items by Exports Facilitation Committee in its meeting held on 26.08.2010 to the applicant ie., M/s.Majestic Impex for grant of import authorization of import of 7915 numbers of Air Conditioners containing R-22 Gas. Even R-22 Gas licence issued by Foreign Trade Department is not transferable. Knowing fully well that the said licenses are not transferable, the petitioner/A1 has given Power of Attorney to his brother-in-law (A2) in order to facilitate to commit illegal activities.