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2016 (2) TMI 578 - HC - CustomsProsecution proceedings against the customs officers - sanction under the Prevention of Corruption Act Claim of duty drawback on the basis of forged Import Code (IEC) number, forged identity proof to open bank accounts and forged 213 shipping bills - 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. Held that - Even the Division Bench judgment in Anur Kumar s case 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, in my opinion, 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.P.C., more so since the said section has been invoked in these petitions. Consequently, the criminal miscellaneous petition is also allowed and the FIR is quashed qua petitioner-Raj Kumar Patial.
Issues Involved:
1. Validity of prosecution without prior notice under Section 155(2) of the Customs Act, 1962. 2. Applicability of sanction under the Prevention of Corruption Act. 3. Maintainability of petition under Section 482 Cr.P.C. 4. Quashing of FIR based on the transfer of petitioner before the scam. Issue-wise Detailed Analysis: 1. Validity of Prosecution Without Prior Notice under Section 155(2) of the Customs Act, 1962: The petitioners argued that the prosecution is invalid due to non-compliance with Section 155(2) of the Customs Act, which mandates prior notice before commencing proceedings. Section 155(2) states, "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." The Court held that the prosecution in violation of Section 155(2) is not valid, relying on the precedent set in J.L. Batra vs. Dharam Dev and others. The Court emphasized that the requirement of prior notice is mandatory and non-compliance renders the prosecution illegal. 2. Applicability of Sanction under the Prevention of Corruption Act: The respondent argued that since the petitioners were charged with serious offences under the Prevention of Corruption Act and sanction was duly taken, the requirement of Section 155(2) of the Customs Act should not apply. The Court, however, concluded that the protections under the Prevention of Corruption Act and the Customs Act are independent. The mere fact that sanction was obtained under the Prevention of Corruption Act does not obviate the need for notice under Section 155 of the Customs Act. The Court supported this by referencing the Supreme Court's decision in Public Prosecutor, Madras vs. R. Raju, which held that non-compliance with a similar provision under the Central Excise and Salt Act, 1944, vitiated the prosecution. 3. Maintainability of Petition under Section 482 Cr.P.C.: The respondent contended that a petition under Section 482 Cr.P.C. is not maintainable at this stage, citing judgments from the Delhi High Court and this Court. However, the Court noted that in exceptional circumstances, such as abuse of the process of the Court or securing the ends of justice, a petition under Section 482 Cr.P.C. can be entertained. Given the conclusion that the prosecution is illegal due to non-compliance with Section 155(2) of the Customs Act, the Court found it justifiable to use Section 482 Cr.P.C. to prevent a trial that would ultimately be invalid. 4. Quashing of FIR Based on Transfer of Petitioner before the Scam: The petitioner argued that he was transferred out before the scam occurred. The Court, having accepted the legal grounds for quashing the prosecution, found it unnecessary to address this argument separately. Consequently, the criminal miscellaneous petition was allowed, and the FIR was quashed concerning the petitioner. Conclusion: The High Court allowed all Criminal Revisions, set aside the impugned orders, and quashed the FIR against the petitioner. The Court emphasized the mandatory nature of prior notice under Section 155(2) of the Customs Act and upheld the independence of protections under different statutes. The judgment underscores the importance of procedural compliance in criminal prosecutions.
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