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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 ..... . Saili Dhuru,. For the Respondent-State : Mr. S. A. Karmakar, APP. JUDGMENT : 1. Since common issues are involved, these matters are being disposed of by a common order with the consent of the parties. 2. Heard learned senior advocate Shri Shrish Gupte appearing for the petitioner in WP/3724/2013, Mr. Dharmadhikari, learned counsel appearing for the applicant in REVN/76/2013, Mr. N.D. George for the petitioner in WP/3841/2013 and learned counsel Shri Kuldeep Patil, for CBI. 3. The challenge in these matters is to an order dated 19/01/2013 passed by learned Special Judge, CBI, ACB, Mumbai below Exhibit 23 in Special Case No. 73 of 2008 arising out of RC No. BAI/2007/A0030 registered with the respondent no. 1 for the offence punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, the applicant- Virendrakumar Agarwal was working as the Additional Collector of Customs, Jawaharlal Nehru Customs House, Sp. Intelligence & Investigation Branch (Export). The complaint was investigated. Charge-sheet was filed against the accused. The applicants filed the aforesaid application for discharge. 6. The trial Court rejected the application for discharge for the following reasons. "14 Perused the documents filed by the prosecution, also perused statements of various witnesses recorded during investigation and the provisions contained in Customs Act. It is to be noted that as regards role of the accused and procedure for work of the accused has elaborately come in the version of PW-3 Dandapai Behera and PW-4 Harish Dharni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Supreme Court in Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra (2008) 10 Supreme Court Cases 394. It is submitted that the trial Court failed to apply the broad test whether the materials on record, if unrebutted, make a conviction reasonably possible. It is submitted that the trial Court has not at all considered the materials on record which overwhelmingly led to the only conclusion that a conviction in the present case was just not possible. Learned senior advocate submitted that the goods to be exported were not prohibited goods. It is contended that the proper officer has passed an order provisionally releasing the goods. It is submitted that in fact there was no loss caused to the government as a result of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to the affidavit-in-reply filed by the respondent no. 2. It is submitted that the impugned order does not warrant any interference. 10. I have heard learned counsel for the parties. The Supreme Court in Yogesh alias Sachin Jagdish Joshi while stipulating the broad test to be applied in considering an application under section 227 of the CrPC has held thus: "15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the trial Court has not considered whether the materials on record if unrebutted make a conviction reasonably possible. The trial Court undoubtedly has a 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. At the relevant time, the applicant/ accused no. 1 -Virendrakumar Agarwal was the Additional Collector of Customs at Jawaharlal Nehru Customs House, Sp. Intelligence & Investigation Branch (Export). It is the allegation that he misused his official position and allowed the export of a consignment of fabric by M/s. Radhika Exports under shipping bill no. 43615819 dated 21/09/2006 by permitting provisional export of the consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwal released the consignment provisionally and did not direct the exporter to execute a bond nor did he confiscate the consignment. The accusation is that by abusing his position as a public servant, applicant -Virendrakumar Agarwal obtained pecuniary gain in order to release the consignment and thereby he benefited by illegal means and caused wrongful 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. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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