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22. Ex.P22 is the proceedings of the JSC conducted on 16.03.2016. While the investigating authority is not empowered to conduct an investigation without registering the FIR, the JSC team herein have conducted a mahazar or a panchanama in the form of the proceedings of JSC. They have seized cash and incriminating scribblings from the possession of Pw.1 Sri.Pothu Rajan and also from the premises of Menzies Aviation Bobba Air Cargo Terminal. PW.3 Mr.Naveen at para 5 of his testimony on page 4 has stated that the CBI officers have searched the tables of the customs officials and have also searched the personnel by checking their shirt and pant pockets. He has also deposed regarding the seizure carried out by the CBI. This suggests that it was indeed an investigation carried out by the CBI. The process of search and seizure certainly evolves beyond the scope of preliminary inquiry.

23. Having seized the currency notes and incriminating scribblings, the investigating authority has proceeded to hand them over to PW.3 Mr.Naveen for further verification. This is found at para 5 of the testimony of PW.3 Mr.Naveen. PW.3 has identified the slips collected from Mr.Pothu Rajan as Ex.P1 to Ex.P6 and the currency notes as M.O.1 to M.O.5 before the court. Having received the currency notes and incriminating scribblings, PW.3 has handed them over to the CBI officials on 26.04.2016 that is more than a month after the JSC as per his testimony at para 6 on page 4. This is a procedure unknown to law. Having seized the currency notes and incriminating scribblings,the investigating authority had no power to hand them over to PW.3 either for verification or for safe keeping. If at all these were to be seized, it ought to have been done in accordance with the procedure and law. This itself raises serious doubts regarding Ex.P22 proceedings of JSC.

27. The major piece of evidence relied upon by the prosecution are Ex.P1 to Ex.P6 scribbling in which names of customs officials is allegedly mentioned. Such scribbling cannot be considered as books of accounts maintained in the ordinary course of business to attract section 34 of Indian Evidence Act. it is open to any unscrupulous person to make any entry any time against anybody's name unilaterally on any sheet of paper or computer excel sheet. There being no further corroborative material with respect to the payment, no case is made out so as to direct an investigation, and that too against large number of persons named in the documents. The Hon'ble Supreme Court in the case of Common Cause (A Registered Society) and Others vs. Union of India and Others in Writ Petition Civil Appeal No. 505 of 2015 on Interlocutory Application Nos. 3 And 4 Of 2017 dated 11.01.2017, has observed as under:-

LIST OF DOCUMENTS MARKED FOR PROSECUTION;

Ex.P.1 Bunch of three papers with scribblings dated 16.3.2016 and two small made up pouchers/covers said to be containing the payments made to several customs officials, amounts received from CHAs etc., (5 sheets) Ex.P1(a) Relevant portion in the first page of Ex.P1 Ex.P.2 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.3 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (9 sheets) Ex.P.4 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (8 sheets) Ex.P.5 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.6 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.7 Original order sheets in Crl. Mis. No. 8414/16 (3 sheets) Ex.P7(b) Signature of PW.44 Ex.P.8 Original statement of PW.1 recorded under 164 (1) Cr.P.C., (2 sheets) Ex.P.8(a) Signature of PW.44 Ex.P.9 Letter dt.22.04.2016 of PW.2 addressed to CBI Ex.P9(a) Signature of PW.2 Ex.P.10 San Disc Pen drive Ex.P.11 Certificate under Section 65-B of Indian Evidence Act Ex.P11(a) Signature of PW.2 Ex.P.12 List contains details of denomination of Rs.17,720/-