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TMI Blog2006 (2) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... bill No. 029760, dated 29-12-1997 in the name of M/s. Punit Exports. The accused attached triplicate copies of the said shipping bill. The claim of the duty drawback was sanctioned and a cheque of Rs. 75,342.60 paise was issued. Subsequently, however, the officers of the drawback Section of the Customs visited the port of exports, i.e., ICD, Patparganj and found that in fact the shipping bill pertained to M/s. Rita Garments of New Delhi. Rita Garments had made the export on the shipping bill and had genuinely taken the duty drawback available thereon. Punit Exports and Rita Garments were two entirely different entities. Apparently certain forgeries had been made in the shipping bill of M/s. Rita Garments and the same was used for drawing duty drawback. It was similarly alleged that the accused acting on behalf of M/s. Hindok Exports had forged the shipping bill Nos. 29764, dated 29-12-1997 and 7121, dated 17-4-1998. Similarly, acting on behalf of M/s. O.K. Hosiery four different claims against shipping bill Nos. 21256, 20958, 21212 and 21211, dated 19-9-97, 16-9-97, 13-9-97 and 18-9-97 had been made and duty drawback had been claimed. 2.An application for judicial remand of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to DCP Crime who shall personally investigate the case and insure (sic ensure) that the investigation is not carried out by an officer below the rank of an ACP as huge Government money is involved. DCP Crime is directed to make a report to this court within a week for further direction. DCP Crime be called for 24-8-98. The accused is remanded to J.C. till 24-8-98. In the meantime DCP Crime to appear personally to take custody of the accused for the purpose of investigation. Along with summons copy of this order be sent to DCP Crimes." 4.The Customs in their revision petition reiterates that offence under the Customs Act was made out as a fraudulent duty drawback in violation of the Customs Act and Customs and Central Excise Duties Drawback Rules, 1995 is an offence under the Customs Act. It was further agitated that there was no default on the part of Customs since the investigation was at a very early stage and that on an appropriate enquiry/investigation whoever is found responsible for the embezzlement will be duly dealt with. 5.On the behalf of the accused the principal point taken is that the ACMM having already taken cognizance of the offence could not have directed fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Customs Act. Exportation of such goods will not only attract confiscation and penalty but would also amount to an offence under Section 135 of the Customs Act. 9.In general legal parlance, a fraudulent duty drawback refers to act of over-invoicing of shipping bill or of making untrue statements in the shipping bills so as to compute a higher than the genuine amount of drawback which the exporter is entitled to. What has happened in the present case is not an untrue statement in a shipping bill. What is alleged is an act of forging of a shipping bill itself without there actually being any export whatsoever. It is not a case where the shipping bill contains any incorrect statement. It is a case of duty drawback without there being any actual shipping or export. The judgment cited above does not take care of such a situation. 10.Apart from citing the judgment of this court in the case of Sanjeev Kumar Gupta (supra) no effort has been made by the learned counsel for Customs to explain as to how the alleged offence of forging a shipping bill becomes an offence under Section 135 of Customs Act. Be that as it may, when a larger offence has come to light there is no reason why i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following alternatives : (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police (emphasis supplied). In case the Magistrate after considering3. the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. Where a Magistrate orders investigation by4. the police before taking cognizance under S. 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above." 14.In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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