By TIOL News Service

CHANDIGARH, FEB 18, 2016: IT is alleged that during the year 2008-09, at Ludhiana, accused Parminder Kumar and Amandeep Singh by entering into a criminal conspiracy with accused KK Sharma and other customs officers, floated non-existent firms namely M/s SM International, M/s Aastha Trading and M/s A.S. International on the basis of forged and fictitious documents viz. forged Import Code (IEC) number, forged identity proof to open bank accounts and forged 213 shipping bills and claimed duty drawbacks to the tune of crores of rupees.

Accused Parminder Kumar also forged identity papers of one Sushil Mishra by forging his signatures. Accused customs officers had dishonestly and fraudulently transferred passwords and login ID to the private persons illegally engaged by them to work in the office in order to facilitate dishonest and illegal duty drawbacks by Amandeep Singh and Parminder Kumar .

The custom officers had also not physically verified the exporting of goods and their stuffing into the containers for extraneous reasons, committed criminal misconduct as public servants. The FIR No.19 dated 10.06.2009 was lodged. The accused namely Jagdeep Singh , who is petitioner No.3 was working as Inspector and other accused persons/petitioners herein were working in their respective posts as Inspectors, whereas Maninder Pal Singh -petitioner No.6 was working as Examiner, Customs and they remained posted at ICDCONCOR/KCMCFS, Ludhiana for certain period.

After completion of investigation, charge sheet under Section 173 Cr.P.C. was presented against the accused under Sections 120-B, 420, 467, 468, 201 IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

Undisputedly, no notice as required under Section 155(1) of the Customs Act, 1962 had been issued by the Central Government to the accused/customs officers before launching prosecution against them.

Criminal Revisions have been filed before the High Court for setting aside the orders whereby applications moved under Section 155(2) of the Customs Act, 1962 and the application under Section 227 Cr PC filed by the petitioners have been dismissed and charges under Sections 120-B, 420, 467, 468, 471, 201 IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 have been ordered to be framed.

The Counsel for the petitioners argued that under Section 155(2) of the Customs Act there is a mandatory requirement of issuance of prior notice and, that having not been done, the present action has to be quashed.

The petitioners relied upon the following judgments to buttress their submission viz. J.L. Batra vs. DharamDev and others, 1981 C.L.R. 126, D.T. Virupakshappa vs. C. Subash, passed in Criminal Appeal No.722 of 2015, decided on 27.04.2015;Om Prakash and others vs. State of Jharkhand and another, (2012) 12 Supreme Court Cases 72; SankaranMoitra vs. Sadhna Das and another, (2006) 4 Supreme Court Cases 584&Public Prosecutor, Madras vs. R. Raju and another, etc.,-2002-TIOL-359-SC-CX-LB .

The Counsel for the respondent CBI argued that in the present case the petitioners have been charged with serious offences under the Prevention of Corruption Act and sanction was duly taken before proceeding against them and in these circumstances the insistence of compliance of the provision of Section 155(2) of the Customs Act can not be accepted. Inasmuch as the actions of the petitioners were completely outside the purview of their official duties and the protection of Section 155 cannot be insisted upon by them.

The counsel for the respondent relied upon the judgment of the Supreme Court in the matter of P.P. Unnikrishnan vs. PuttiyottilAlikutty, 2000(4) R.C.R. (Criminal) 25, wherein it is held that beating of a person within police custody would not fall within official duties of the police officer and hence such officer would not get the benefit of Section 64(3) of the Kerala Police Act which fixed a period of six months from the date of commission of an offence for taking cognizance.

The High Court observed -

++ This Court is bound by the decision of J.L. Batra's case (supra) and R.Raju's case (supra). Consequently, it has to be held that the prosecution in violation of Section 155(2) of the Customs Act is not valid.

++ The Division Bench judgment in Anur Kumar's case ( 2012(7) R.C.R (Criminal) 2836 ) held that a petition under Section 482 Cr.P.C. can be entertained in exceptional circumstances viz. where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice.

++ However, the issue will turn on the fact that this Court has come to the conclusion that in the absence of notice the prosecution is illegal. Once that is held, it would not be in the interest of justice to subject the petitioners to a trial which will ultimately be still-born. For this purpose, recourse can be taken to the provisions of Section 482 Cr PC, more so since the said section has been invoked in these petitions.

All the Criminal Revisions were allowed and the impugned orders were set aside. The criminal miscellaneous petition was also allowed.

In passing: Section 155 of the Customs Act reads -

SECTION 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.

(See 2016-TIOL-295-HC-P&H-CUS)