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TMI Blog2018 (5) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... tted air-conditioner, but declared as part of air-conditioner and Imported into India through Chennai Port, thereby committing revenue loss to the exchequer of Customs Department. 3. It is an admitted fact that the petition to discharge the petitioner is pending before the trial Court. The learned counsel for the petitioner would submit that he does not know the fate of the discharge petition, however, he canvasses this writ petition on a different ground. 4. The learned Special Public Prosecutor appearing for the 2nd respondent stated that the discharge petition has already been dismissed. In any event, the present writ petition seeking Certiorari is based on the short point that the sanctioning Authority to prosecute the petitioner here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no grounds survive for quashing the prosecution. 6. It is submitted by the learned counsel for the petitioner that in the earlier writ petition in W.P.No.210 of 2016, one Sanjay Kakkar, the co-accused of this case challenged the very same sanction order and this Court has allowed the writ petition by an order dated 11.08.2017, in which the facts are in pari materia to that of this petitioner. Therefore, following the judgment passed in W.P.No.210 of 2016 dated 11.08.2017, this petition is to be allowed. 7. This submission is strongly opposed by the learned counsel appearing for the first respondent pointing out the factual difference between the case of the petitioner, who is the examiner and the case of the petitioner in W.P.No.210 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the first communication from the Competent Authority viz., the Commissioner of Customs dated 30.08.2013, discuss about the facts of the case and had formed a opinion as below:- "7.The main ingredient for the criminal conspiracy is to establish that there was an agreement between the parties for doing an unlawful Act. To draw an inference of conspiracy the acts or conduct of parties should clearly reveal their concurrence. Even if there is no direct evidence available, circumstantial evidence in the form of a chain of events is required in order to alleged conspiracy. In the instant case, not even circumstantial evidence is available to prove the involvement of the officers with the importer in the conspiracy. In the subject case wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ser (Retired) as they had observed that the goods presented for examination were Air conditioners, but failed to return the Bill of Entry to the Group for re-assessment/Adjudication and have definitely been responsible for the revenue loss of Rs. 42,05,597/- and merit action for Major Penalty under CCS(CCA) Rules. In the absence of any prima facie evidence relating to criminal conspiracy, abuse of official position and receipt of illegal gratification, prosecution is not warranted. 10.Further, Section 155 of Customs Act, 1962, extends protection from suit, proseuction or other legal proceedings to any Government officer for anything which is done or intended to be done in good faith. In the present case, the assessing officers viz., Shri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been referred to above would clearly indicate that what was expressed by the Commissioner of Customs vide his letter dated 13.08.2013 is not an order but only an opinion. Nowhere it is stated that he had applied his mind and arrived at a conclusive decision for not according sanction or refusal to accord sanction. Whereas in the subsequent communication dated 30.08.2013, this Court could see that the competent authority has stated after applying his mind, consider that prima facie case has been made out against the petitioner to accord sanction to prosecute. This expression is conspicuously absent in the earlier communication dated 13.08.2013. 15. Hence, this Court hold that on the factual matrix, there is no two sanction orders p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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