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TMI Blog2024 (6) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... l loss to the government by not confiscating the goods. The respondents are relying upon the statements of the witnesses and the documents on record to establish the conspiracy between the various accused. The contention of learned senior advocate that the order of the provisional release having attained finality under the Customs Act has an effect of absolving the petitioners accused of any criminal liability is without any merit. The accusations against the petitioner- Virendrakumar Agarwal is that he obtained pecuniary gain from the co-accused for release of the consignment and thereby he benefited by illegal means and caused wrongful loss to the government by not confiscating the goods. There are thus, prima facie, materials and stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 was filed by the petitioner-accused for discharge from the aforementioned offences. The facts of the case in brief are as under: The Manager of M/s. Radhika Exports while filing shipping bill declared and submitted invoices with higher weight so as to claim the benefit under Duty Free Import Authorization Scheme ("DFIA Scheme", for short). The said invoice bill was investigated by the office of Special Intelligence and Investigation of Branch (Export) ("SIIB", for short), Nhava Sheva, District- Raigad. Thereafter Radhika Exports was allowed to file revised invoice as the discrepancies in the gross weight in the earlier invoice was a typographical mistake and the Gram Per Square Meter ("GSM", for short) was not amended due to oversight. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides for confiscation of goods attempted to be improperly exported and specifically when there is mis-matching of particulars as relation to goods to be exported and documents in connection with it. 15 As has been pointed out earlier the allegations against the accused though prima facie show of passing order of inquiry; provisional assessment and after following the provisions of Customs Act is made on the part of the accused. It is to be noted that as per statements of objections reasons of the Customs Act and preamble of the Customs Act it is clear that Customs Act was passed to consolidate law relating to Customs Act. Thus when there is allegation of ulterior motive in evaluation and compliances of provisions of Customs Act as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority under the Customs Act. It is urged that there cannot be any criminal liability fastened on the petitioner/applicant much less a charge under the PC Act. It is submitted that there is no material to indicate that the applicant-Virendrakumar was paid any monetary consideration by the exporter to get a favourable order. 8. Learned counsel for the applicant Virendrakumar Agarwal was at pains to point out that the only material against the applicant is the statement of the prosecution witness- Ashok Mahadeo Vange recorded under section 164 of the Code of Criminal Procedure ("CrPC", for short) about the applicant-Virendrakumar Agarwal having demanded a bribe from the accused no. 3 - Narayan Tibrewal, the Manager of M/s. Radhika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. 16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brewal, Partner (A-4) both of M/s. Radhika Exports, Mumbai in the packing list/shipping bill. The allegation is that the applicant neither directed the confiscation of the consignment nor did he direct the exporter to execute a bond, which could have been asked for, as per rules, while permitting the provisional release of the consignment. The specific allegation is that the same was done by him for monetary consideration received from the accused no. 3. 12. The case in brief of the respondents is thus that while allowing the provisional release of the consignment, instead of following the procedure of confiscation, consignment is provisionally released for monetary consideration and thereby shown undue favour to the accused nos. 3 and 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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