9911796707
TMI Blog2017 (8) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... nst public servants. The mind of the Sanctioning Authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. While law is thus settled, on the facts of the present case, the impugned sanction that has been given by the authority on the same material, which was available before the authority on the earlier occasion, when the refusal was made, cannot stand. The Sanctioning Authority having taken a lenient view earlier of declining to grant sanction has changed its opinion without any fresh materials and granted sanction, which cannot be allowed to stand. It is not permissible for the Sanctioning Authority to review or reconsider the matter on the same materials again. Petition allowed - decided in favor of petitioner. - W.P.No.210 of 2016 and W.M.P.Nos.113 and 114 of 2016 - - - Dated:- 11-8-2017 - M. Duraiswamy, J. For the Petitioner : Mr.V.T.Gopalan, Senior Counsel for Mr.J.Srinivasa Mohan F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of import policy and computation of duty on the declared goods and is invariably subject to the verification of the description of declared description by the Examination Shed Officers. After assessment, a copy of the Bill of Entry is printed in the EDI service centre. (iv)According to the petitioner, he as an Appraising Officer in-charge of assessment of imported goods, in the year 2011, one of the import consignments that he had appraised was under the Bill of Entry dated 02.09.2011, which was filed electronically by the importer and the declared description of the goods made it abundantly clear with brand name, model number and specifications that it consisted of an item viz., indoor units of Air-conditioners that was not un-understandable in any way and was regularly imported across the country, including Chennai Port for years. The complete description hardly left any scope for any doubt on his part in understanding the declaration, obviating the need for seeking any clarification from the importer. The details, duly affirmed by the importer had been transferred electronically as per the procedure and assessment done was also under the EDI system. Later, based on an investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no need to seek any clarification by raising any query. (vii)According to the petitioner, as a matter of fact, there are thousands of identical Bill of Entry for import of identical goods, both by the same importer as well as by others have been accepted and assessed by various empowered authorities, all over India, in the very same manner under the very same CTH. Based on the pen drive recovered by the DRI, citing the sole reason of the interpretation of the classification adopted by the petitioner, the 2nd respondent took a stand that there was criminal conspiracy in the referred single import assessed by him. However, later, realizing that it was a purely interpretative and highly technical matter of classification of the goods, similar lack of suspicion based on classification of the petitioner's predecessors (investigated under 5 different FIRs) were referred to the 1st respondent by the 2nd respondent for necessary further action, without invoking criminal culpability on the part of any of his predecessors. In respect of import of identical goods under 83 other Bills of Entry investigated by the 2nd respondent, including those by the same importer under the same CTH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity also sent a detailed justification to the Director General of Vigilance, by letter dated 13.08.2013 for this being an unfit case for grant of sanction for prosecution of the petitioner. (x)According to the petitioner, the Central Vigilance Commission, without relying upon the report of the Competent Disciplinary/Sanctioning Authority, advised the prosecution by its letter dated 30.08.2013. While the matter was still under consideration with the 1st respondent, through a letter dated 25.10.2013, the Director General of Vigilance, CBEC, sought for status of sanction against the petitioner to enable compliance with CVC advice. Immediately after the receipt of the said letter, the 1st respondent, after referring to the advice of the CVC, having refused to sanction prosecution earlier, granted the same under Section 19 of the Prevention of Corruption Act on 31.10.2013. The criminal case is pending before the VIII Additional City Civil Court, Chennai in C.C.No.1/2014 and the petitioner has been arrayed as A2 in the said case. The Sanction Order passed by the 1st respondent is verbatim the report of the CBI, which she herself over-looked and rejected on a point by point basis, add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner caused revenue loss of ₹ 42,05,597/-. The lapse on the part of the petitioner does not appear prima facie to be bonafide, warranting protection under Section 155 of the Customs Act and prima facie there is a case for sanction for prosecution under Section 120 B read with Sections 420, 468 and 481 IPC read with Section 13(2)(1)(d) of the Prevention of Corruption Act, 1988 and in view of the above, sanction for prosecution was granted. (v)The additional materials were considered while granting sanction and the Disciplinary Authority independently applied its mind, which is also evident. In these circumstances, the 1st respondent prayed for dismissal of the Writ Petition. 4.Heard Mr.V.T.Gopalan, learned Senior Counsel appearing for the petitioner and Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the 1st respondent. 5.Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner submitted that when the sanction was refused at the first point, sanction was later granted without any fresh material from the Investigating Agency, solely at the behest of the CVC. According to the learned senior counsel, the materials referred by CBEC to CV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing on record to show that this incident did not occur. The facts do not support the contention that Shri Nishant Sareen was falsely implicated. In the circumstances, I am of the opinion that the prosecution sanction be granted in the instant case and accordingly do so. ... 12.It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een stated in respect of the materials, which are relied upon. (ii)The impugned sanction order has been passed at the instance of the Central Bureau Investigation and Central Vigilance Commission, who have furnished their views to the Sanctioning Authority and due to that extraneous considerations, the Bank being the Sanctioning Authority had to change its earlier stand and therefore, it cannot be said to be an independent view based on fresh materials. (iii)Even in the impugned order, the Sanctioning Authority has not chosen to state anything about the previous orders declining sanction of prosecution dated 30.12.2008 and 18.05.2009 and that shows the non application of mind on the part of the Sanctioning Authority. (iv)There is nothing about the new materials stated to have been brought to the notice of the Sanctioning Authority, which were not available earlier on 30.12.2008 and 18.05.2009. (v)The reliance placed by the learned Judge on the letter dated 03.09.2009 and the decision arrived at by the learned Judge based on such letter, which is inter-departmental in nature and has not been revealed to the appellant, is a denial of the principles of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Sanctioning Authority has no jurisdiction to review the order and grant sanction on the same materials, she has chosen to come to a conclusion that there are new materials available. On fact, we do not see any new materials which were either placed by the CBI or CVC before the Sanctioning Authority for the purpose of enabling the Sanctioning Authority to come to a different conclusion. 36.In respect of the alleged conduct during the year 2001-2002, the impugned sanction order came to be passed in the year 2005 and there has been a substantial delay of three years and in such circumstance, we do not want to fasten the responsibility on the petitioner for belatedly approaching this Court by filing the writ petition in the year 2010. 37.For all these reasons, the order of the learned single Judge stands set aside. Consequently, the orders of the Sanctioning Authority, which are impugned in the writ petitions, are quashed and resultantly, the writ petition as well as the writ appeal stand allowed. No costs. Consequently, the connected miscellaneous petitions are closed. 6.Countering the submissions made by the learned senior counsel for the petitioner, Mr.G.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The State of Punjab, 1962 Supp (3) SCR 713 : SIR 1963 SC 395, the Constitution Bench of this Court has held that the business of the State is a complicated one and has necessarily to be conducted through the agency of large number of officials and authorities. 10.In Jasbir Singh Chhabra v. State of Punjab, (2010) 4 SCC 192, this Court held as under: - 35.It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b)no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c)no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. 14.Having gone through the copy of note-sheets relating to sanction in question placed before us as part of rejoinder affidavit, it is evident that there had been proper application of mind on the part of the competent authority before the sanction was accorded. Our perusal of the said record does not indicate that any decision was taken by the competent authority, at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. (iii)(2010) 14 Supreme Court Cases 527 [State of Himachal Pradesh Vs. Nnishant Sareen] wherein the Apex Court held as follows: ... 12.It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under statutory power. But at the same time, it is held that even the power once exercised can be excised once again, but while reconsidering the matter, fresh materials must have been collected by the investigating agency subsequent to the earlier order and it should have been placed before the Sanctioning Authority. In the decision cited supra, the earlier decision of the Honourable Supreme Court reported in Gopikant Choudhary Vs. State of Bihar and others, 2000 (9) SCC 53, is referred. As per the facts of the said case, initially the concerned Minister refused to accord sanction to prosecute the Public Servant, but subsequently the Chief Minister granted the sanction for prosecution, but the said order was set aside by the Honourable Supreme Court on the ground that the investigating agency has not collected any fresh materials requiring a fresh look at the earlier order. One another decision of the Honourable Supreme Court reported in State of Punjab and another Vs. Mohammed Iqbal Bhatti, 2010 (4) CTC 458 (SC) : 2010 AIR SCW 1186, also is referred in the decision cited supra. As per the facts available in the said case, originally the Honourable Minister refused to grant san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Commissioner of Income Tax (CCA), Chennai, who accorded sanction by order dated 06.09.2010, and the said sanction order is also illegal and invalid for the reasons stated above. 7.On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, it could be seen that based on an investigation initiated by the DRI, Chennai in respect of another importer under another Bill of Entry, large scale racket of smuggling with fraudulent Bills were unearthed. During that drive, one Bill passed by the petitioner was also included in the investigation. The 2nd respondent claimed criminal conspiracy as full Air-conditioners were imported instead of indoor units. The petitioner has assessed the goods imported and electronically declared as indoor units. The petitioner has levied duty as per the recorded customs data of previous imports and denied the notification benefit claimed by the importer. As per procedure and rules, the petitioner has ordered that ransom check of goods by Customs Examination officials prior to the grant of out of charge ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Competent Disciplinary Authority and even had taken the same into consideration while refusing to sanction for prosecution on 13.08.2013. While denying sanction for prosecution on 13.08.2013, the Disciplinary Authority had discussed about the RMS instructions, which are advisory guidelines for assessment. The RMS instructions cannot be considered as fresh materials for reversing the decision taken earlier by the Competent Disciplinary Authority. The Disciplinary Authority already took into consideration the CVD and MRP while denying the sanction for prosecution in its order dated 13.08.2013. Therefore, the CVD and MRP referred to in the sanction order cannot be considered as fresh materials for reversing the earlier order. 10.As rightly contended by the learned senior counsel Mr.V.T.Gopalan appearing for the petitioner, the petitioner is not challenging the order of sanction on merits and what has been challenged in the Writ Petition is the action of the Competent Authority in reviewing her own order due to external pressure from CVC and not based on any new materials subsequently unearthed by the Investigating Agency. 11.It is legally settled that the power of review ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
