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TMI Blog1985 (10) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... t business with turn-over of more than 15 crores in last three years. He exports all kinds of Indian produce and products. He is also assessed under the Income Tax Act and is a regular Tax Payer. According to him the Customs Authorities are trying to apprehend him under some or other provisions of the Customs Act with sole intention of harassing him. In view of this he filed an application for anticipatory bail under the provisions of the Code of Criminal Procedure and had secured the same. Therefore, today he is on bail of Rs. 2 lakhs with one surety in the like amount. According to the petitioner one Shri Noor Mohammed Yacoob Vazir, also known as Shri Noorbhoy Vazirbhoy, is the proprietor of M/s. Shah Metal Pressing Works and M/s. Shah In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irms on the basis of misrepresentation and fraud and that the party is a genuine one and has exported the entire quantity. This finding recorded by the competent authority under the Imports and Exports (Control) Act, 1947, is binding upon the Customs Department and it is not open to the Customs Department to argue otherwise. Therefore the investigation now carried on in the same matter is not only futile but also amounts to mala fide exercise of powers. So long as the order passed by the Deputy Chief Controller of Imports and Exports holds the field, no offence could be alleged against the petitioner. In support of this contention Shri Gurusahani the learned counsel appearing for the petitioner has placed strong reliance upon the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in the offence punishable under Section 135 of the Customs Act. The investigation reveals that two firms viz. (1) M/s. Shah Metal Pressing Works and (2) M/s. Shah Industrial Company are wholly non-existent and fictitious. The alleged proprietors of these two firms are absconding and are not being traced in spite of the repeated efforts by the Investigating Authorities in Gujarat and Maharashtra. During the course of investigation it is also revealed that it is the petitioner who was dealing with the banks on behalf of the aforesaid two non-existent firms and their alleged proprietors. Further the so called goods imported or exported have never been exported to Dubai nor they reached Dubai. The audio cassettes were sold in the local mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is under this section the order is passed by the Deputy Chief Controller of Imports and Exports which is subject to an appeal under Section 4-M. Admittedly such an appeal has not been filed before the higher forum. Section 4-D and 4-F provide for conferring powers upon the authorities concerned, to seize the imported goods or the material and Section 4-F lays down that the provisions of the Code of Criminal Procedure related to search and seizure, shall, so far as may be, apply to every search and seizure made under the Act. Then comes Section 5 which reads as under : "5. If any person contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act - or any condition of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or penalty to which he may be liable under the provisions of the Customs Act. Therefore, the provisions of the Imports and Exports (Control) Act, 1947 are not given an overriding effect over and above the provisions of the Customs Act, 1962. In this context it can also be not forgotten that as observed by this Court, the orders passed in adjudication proceedings under the provisions of the Imports and Exports (Control) Act, 1947, will not be binding upon the criminal courts. While dealing with the similar contention, this is what the Division Bench has observed in State of Maharashtra v. Rasiklal K. Mehta: "........Besides, the reasons given by the learned Magistrate for staying the proceedings of the Criminal case are also not very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the affidavit filed by the Department, clear averments have been made regarding the active role played by the petitioner and the extent of his liability. As to what is the role played, by him, is a matter of evidence and cannot be decided at this stage. It is well settled that for the purpose of quashing the investigation the allegations put forward, will have to be assumed as true and it will not be fair to throttle the investigation itself at that stage. 7. It is no doubt true that it is contended by Shri Gurusahani that the investigation amounts to harassment and is also mala fide. These allegations are denied by the Respondents. Even otherwise it is not possible for me to come to a definite conclusion that the investigation itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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