Crl.M.C. No. 2345 of 2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 CRL.MC NO. 2345 OF 2021 ``` ``` FOR QUASHING THE PROCEEDINGS AGAINST THE PETITIONERS HEREIN IN C.C.No.2/2015 PENDING BEFORE THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM ``` ## **`PETITIONERS/ACCUSED NO.1 & 2:`** ``` 1S.RAJEEV KUMAR, AGED 63 YEARS, S/O SREEDHARAN NAIR, R/O KAUSTHUBHAM, THIRUPURAM P.O, NAYYATTINKARA, THIRUVANANTHAPURAM-695133. ``` ``` 2C.C.BABY, AGED 55 YEARS, S/O LATE CHACKO, R/O CHEERAKATHOTTATHIL HOUSE, MEKKADAMPU P.O, MUVATTUPUZHA, ERNAKULAM-682316. ``` ``` BY ADVS. P.A.AUGUSTIAN SRI.M.A.BABY ``` ## **`RESPONDENT/COMPLAINANT:`** ``` CENTRAL BUREAU OF INVESTIGATION, ANTICORRUPTION BUREAU (ACB), COCHIN-682036. ``` ``` BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA CGC SRI. SUVIN ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ## **`29.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** ``` Crl.M.C.No.2345 of 2021 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.M.C.No. 2345 of 2021 --------------------------------------------- Dated this the 29[th] day of September , 2022 ## **O R D E R** The petitioners are accused Nos.1 and 2 in C.C.No.2/2015 on the file of the Special Judge (SPE/CBI), Thiruvananthapuram. The petitioners face charges under Section 120B r/w Section 420 of IPC and Sections 7, 12 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The Central Bureau of Investigation on 14.08.2012 registered R.C.No.14(A)/2012/CBI/ ACB/COCHIN against the petitioners and 14 others, who include Customs officials, Clearing Agents and private persons. Petitioner No.1 was the Superintendent of Customs and Department of Revenue and Central Excise. Petitioner No.2, was officiating in the capacity of Inspector of Central Excise and Customs. They along with the other accused were posted at the unaccompanied baggage clearing centre, Air Cargo Complex, International Airport, Thiruvananthapuram, during the period July 2012. During the relevant time, as per the practice in place, NRIs were permitted to despatch their personal consignments to India as unaccompanied ``` Crl.M.C.No.2345 of 2021 ``` ``` 3 ``` baggages, disclosing their address and passport numbers. On arrival of the parcel at the Airport, each consignee was obliged to present himself at the station, fill up the baggage declaration form disclosing the details of each item and its approximate value and then to receive the parcel on payment of requisite fee imposed by the Customs authorities. 2. The prosecution case is that during the relevant period the petitioners and the other accused entered into a criminal conspiracy with certain clearing agents and permitted them to club several baggages, book the entire consignment in the name of a single NRI and agreed to impose nominal fee. Several NRIs who used to send their parcels through their agents utilising this facility could club those parcels under the name of a single NRI. It is alleged that baggages were booked by delivery agents on the pretext of baggage of a single passenger. The Customs Officials pursuant to the conspiracy used to release them without levying the actual customs duty. 3. The CBI conducted joint surprise check in the Air Cargo Complex on 13.07.2012. They found that three consignments were released in violation of law. Based on this proceedings, FIR was registered on 14.08.2012. The CBI found that the three ``` Crl.M.C.No.2345 of 2021 ``` ``` 4 ``` consignments mentioned above were not bonafide baggages. It was further found that the baggages booked in the name of three different passengers contained 20 packets, 42 packets and 35 packets respectively, weighing 1435 Kgs., 1775 Kgs. and 1630 Kgs. respectively. It was further found that those baggages were assessed only for the value of Rs.9,500/-, Rs.24,150/- and Rs.17,900/- respectively and the duty assessed by the Customs authorities was Rs.3,425/-, Rs,8,706/- and Rs.6,453/-, respectively. In the valuation done by the CBI, the three consignments got a valuation of Rs.2,51,526/- and therefore, the tax liable to be paid was fixed at Rs.2,28,615/-. The CBI assessed the tax evasion at Rs.2,10,031/-. In the further investigation, 15 such unaccompanied baggages were found released on earlier occasions by adopting the similar methods. After completing the investigation, sanction for prosecution of the petitioners and the other accused was accorded by the Commissioner of Central Excise and Customs. Thereafter, final report was laid against 16 persons. 4. The petitioners appeared before the Court below in response to the summons. 5. Petitioner No.1 filed Crl.M.C.No.3850/2017 seeking to ``` Crl.M.C.No.2345 of 2021 ``` ``` 5 ``` quash the proceedings. As per order dated 20.07.2017, this Court disposed of the said Crl.M.C. with a direction to the trial Court to expedite the hearing on Crl.M.P. No.9/2016, an application filed by petitioner No.1 under Section 239 of Cr.P.C. seeking discharge. 6. The trial Court dismissed Crl.M.P. No.9/2016 along with another Crl.M.P. No.112/2016, as per order dated 18.11.2017 holding that the petitioners and the other accused were not entitled to discharge. Petitioner No.2/accused No.2 filed Crl.M.C.No.8881/2018 challenging the order dismissing the application filed under Section 239 of Cr.P.C. Accused No.12 also filed Crl.M.C.No.1826/2019 against the order dismissing the application filed under Section 239 of Cr.P.C. This Court heard both the Crl.M.Cs together and as per order dated 10.06.2020 dismissed them. In those Crl.M.Cs, the petitioners (A2 and A12) had raised a contention that the prosecution against them was bad for non-compliance of Section 155(2) of the Customs Act. This Court dispelled the said claim of the petitioners and held that the prosecution cannot be held to be bad for non-compliance of Section 155(2) of the Customs Act. This Court further held that the claim under Section 155(1) of the Customs Act can be raised by the parties before the Court below. Thereafter, petitioner No.2 ``` Crl.M.C.No.2345 of 2021 ``` ``` 6 ``` filed Crl.M.P.No.71/2020 (Annexure H) and sought discharge on the ground that he is entitled to the protection under Section 155(1) of the Customs Act. The Court below held that the question of bonafides and his entitlement to protection under Section 155(1) of the Customs Act could be raised at the trial stage as this Court had taken note of the framing of charge, but refused to set aside the charge while disposing of Crl.M.C.No.8881/2018. 7. Charges were framed against the petitioners and the other accused by the trial Court as per Annexure F order dated 27.11.2019. 8. The petitioners now challenge the final report (Annexure A) and Court charge (Annexure F) in this proceedings. 9. Heard Sri.P.A.Augustian, the learned counsel for the petitioners and Sri. Suvin R.Menon, the learned Central Government Counsel. 10. The learned counsel for the petitioners contended that the Court below had not applied its mind while framing charges against the petitioners as per Annexure F. The learned counsel stressed that the method of valuation adopted by the Investigating Officer to enter into a conclusion that the petitioners acted in such a manner that resulted in evasion of Customs duty ``` Crl.M.C.No.2345 of 2021 ``` ``` 7 ``` is against the settled procedures followed by the department in similar proceedings. It is further submitted that there are no materials to establish the complicity of the petitioners in the alleged crime. 11. The learned Central Government Counsel countered and submitted that in a proceeding under Section 482 Cr.P.C., this Court is not expected to sift the evidence and other related materials to record a finding in one way or another. It is further submitted that the attempt of the petitioners is to protract the matter. The learned Central Government Counsel further contended that as petitioner No.1 had not challenged the order dismissing his application seeking discharge under Section 239 of Cr.P.C. his contentions are not credit worthy. It is also contended that petitioner No.2 had already approached this Court invoking Section 482 Cr.P.C. and challenged the proceedings, including the charges framed against him, which ended in dismissal. The final report filed against the petitioners and the other accused alleges that accused Nos. 1 to 4 and 12 to 16, being public servants while working as Customs Officers at UB clearing centre, Air Cargo Complex, Thiruvananthapuram, were responsible for giving clearance to goods brought from abroad after hatching a criminal ``` Crl.M.C.No.2345 of 2021 ``` ``` 8 ``` conspiracy with accused Nos.5 to 10, who are Customs agents by obtaining illegal gratification and by illegal means in abuse of their official positions, so as to make undue pecuniary advantage. It is alleged that in pursuance to the criminal conspiracy, during the period from 01.01.2012 to 31.12.2012, accused Nos. 1 to 4 and 12 to 16 habitually obtained illegal gratification. 12. According to the prosecution, pursuant to the criminal conspiracy, accused Nos. 1 to 4 and 12 to 16 induced the Customs Department to clear and release goods imported by the other accused by levying lesser duty than the duty payable, if those items were imported as non-bonafide goods. The prosecution alleges that the petitioner and the other accused obtained wrongful gain causing wrongful loss to the Customs Department. 13. The Trial Court framed charges against the petitioners and the other accused as per order dated 27.11.2019 in tune with the allegations in the final report. The challenge of the petitioners is that the incidents narrated by the prosecution is a practice in place in the Customs Department which do not amount to any criminal offence and further that there is no revenue loss to the Customs Department as contended by the prosecution. 14. The learned counsel for the petitioners contended that ``` Crl.M.C.No.2345 of 2021 ``` ``` 9 ``` the method of valuation adopted by the Investigating Agency is not acceptable to enter into a finding that the petitioners and the other accused obtained illegal gratification. It is the contention of the learned counsel for the petitioners that there are no materials to corroborate the allegations levelled by the prosecution. 15. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 of Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or in the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations. ( **State of West Bengal v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370].** 16. In **State of Kerala v. O.C.Kuttan [(1999) 2 SCC 651]** , the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In **State of U.P v. O.P. Sharma [(1996) 7 SCC 705]** a three-Judge Bench of the Apex Court observed that High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and ``` Crl.M.C.No.2345 of 2021 ``` ``` 10 ``` 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another three-Judge Bench of Apex Court in **Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397],** wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the final report or complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, it is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in **Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711).** 17. The petitioners failed to convince this Court that the allegations levelled against them in the prosecution records and the charges do not disclose the ingredients of the offences ``` Crl.M.C.No.2345 of 2021 ``` ``` 11 ``` alleged. The correctness or otherwise of the same is a matter to be decided during the trial. This Court finds no reason to interfere with the order framing charges against the petitioners. The petitioners are at liberty to raise all the contentions during trial. The Crl.M.C. lacks merits and is dismissed. ``` Sd/- K.BABU JUDGE ``` VPK ``` Crl.M.C.No.2345 of 2021 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 2345/2021`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE-ATRUE COPY OF THE FINAL REPORT DATED 30.04.2014. ``` - `ANNEXURE-B TRUE COPY OF ORDER DATED 20.07.2017 IN CRL M.C.NO.3850/2017.` - `ANNEXURE-C TRUE COPY OF THE CHART SUBMITTED BY RESPONDENT.` - `ANNEXURE-D TRUE COPY OF THE ORDER DATED 18.11.17 IN C.C. NO. 2 OF 2015.` - `ANNEXURE-E TRUE COPY OF THE ORDER DATED 01.02.19 IN C.C. NO. 1 OF 2013.` - `ANNEXURE-F CERTIFIED COPY OF CHARGE SHEET DATED 27.11.2019.` - `ANNEXURE-G TRUE COPY OF ORDER DATED 10.06.2020 IN CRL M.C.NO.8881/2018.` - `ANNEXURE-H CERTIFIED COPY OF THE ORDER DATED 22.01.2021 IN CRL M.P.NO.71/2020 IN CC 2/2015.` - `ANNEXURE-I TRUE COPY OF THE JUDGMENT DATED 08.09.2020 IN CRL.APPEAL NO.575/2020.` - `ANNEXURE-J TRUE COPY OF THE LETTER F.NO.VIG/III/09CUS DATED 10.01.11 ISSUED BY THE COMMISSIONER OF CUSTOMS, COCHIN SMT.RAMA MATHEW.`