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2002 DIGILAW 589 (PNJ)

Anil Shoor v. Union Of India -

2002-05-24

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Petitioner, Anil Shoor, in petition filed under Section 438 Cr.P.C. seeks direction to the Arresting Officer to release him on bail forthwith in the event of his arrest, under section 135 of the Customs Act, 1962 (in short the Act) and later on added Sections 467/468/471/472 of the Indian Penal Code. 2. Petitioner is proprietor of M/s Bash International, Jalandhar, which is engaged in the business of Hand Tools and has been exporting the same to Thailand for the last about eight years. M/s Bash International had filed shipping bill No. 2213 dated 30.3.2000 for export of 1510 packages of Drop Forged Hand Tools (spanners made of non-alloy steel) at Container Freight Station (Overseas Warehousing Corporation Ltd), Ludhiana under DEPB Scheme under Product Group Engineering Code (61) against Sr.No. 87 having DEPB credit rate 17 per cent on the FOB value of export through its CHA M/s Qimati Lal Sharma, Ludhiana. The FOB value of the export goods was Rs. 85,36,743/-. On scrutiny of records of the Custodian, namely, Overseas Warehousing Corporation Ltd., Ludhiana, it was found that cargo meant for export under shipping bill No. 2213 dated 30.3.2000 was received in the Warehouse on 3.4.2000 (800 Pkgs.), 4.4.2000 (357 Pkgs) and on 5.4.2000 (353 Pkgs). In this manner, the total packages came to be 1510. The record of the Warehouse revealed that incoming empty containers bearing Nos. TTNU-250804-6 and TTNU-277320-3 were received in the Warehouse on 4.4.2000. After stuffing with export cargo on 5.4.2000, the above-mentioned two containers were moved out of Warehouse on 6.4.2000. It was further found that petitioner managed to get the examination report and got export order endorsed in the shipping bill by mentioning the date as 31.3.2000 whereas the actual export was effected on 5.4.2000. In this manner, the petitioner managed to get Bill of lading No. 39614802 dated 31.3.2000 from the shipping line which was in violation of provisions of para 15.15 of the Hand Book of Procedure, prescribing the manner of shipment and despatch for the purpose of exports. In this manner, the petitioner managed to get Bill of lading No. 39614802 dated 31.3.2000 from the shipping line which was in violation of provisions of para 15.15 of the Hand Book of Procedure, prescribing the manner of shipment and despatch for the purpose of exports. The manipulation of the documents, according to the Custom Authorities, was intentionally made by the petitioner despite the fact that he was aware that his export goods were over-inoviced and by getting endorsement of the examination report bearing the date as 31.3.2000 he was able to get higher DEPB benefits instead of the date of actual export, i.e 5.4.2000 as less DEPB benefits were available to the exporter as on 5.4.2000 due to affixing of value cap of Rs. 90/- per kg. on Hand Tools (Sr. No. 87 of Product Group Engineering Code: 61) of DEPB rate list with effect from 1.4.2000 as per Export Import Policy of the Government. In this manner, petitioner is stated to have defrauded the Government exchequer by manipulating the export documents in order to avail higher DEPB Credit fraudulently to the tune of Rs. 14,51,246/- (i.e. 17 per cent of FOB value Rs. 85,36,743/-) instead of Rs. 5,73,336/- which was admissible against the goods exported. On the basis of above findings, summons dated 22.4.2002 (Annexure P-1) under Section 108 of the Act was issued by the Superintendent, Anti-Smuggling, Customs Commissioner, Amritsar, whereby the petitioner was informed that an enquiry was being made in regard to smuggling/export of Hand Tools against Shipping Bill No. 2213 dated 30.3.2000 through C.F.S. (OWPL) Ludhiana under Bill of lading No. 39614802 dated 31.3.2000 and his presence was required to give evidence and produce documents in his possession. Petitioner did not appear before the said Authority in pursuance to notice issued to him; rather he filed an application for pre-arrest bail in the Court of Sessions Judge, Amritsar, in relation to offence under Section 135 of the Act. His bail application was rejected by the Sessions Judge, Amritsar, as per order dated 11.5.2002. It is thereafter the present petition has been filed. 3. I have heard learned counsel for the petitioner at length. 4. Learned counsel representing the petitioner, while pressing for his pre- arrest bail, mainly contended before me that the petitioner had exported Hand Tools of the value of Rs. It is thereafter the present petition has been filed. 3. I have heard learned counsel for the petitioner at length. 4. Learned counsel representing the petitioner, while pressing for his pre- arrest bail, mainly contended before me that the petitioner had exported Hand Tools of the value of Rs. 85,36,743/- to Thailand against Shipping Bill No. 2213 dated 30.3.2000 being Container Freight Station (Overseas Warehouse Private Limited), Ludhiana, under Bill of Lading No. 39614802 dated 31.3.2000 through his shipping agent Sh. Qimati Lal Sharma and his sub-agent M/s Speed Cargo Logistics Private Limited and the Customs Authorities had passed the goods contained in 1510 packages for shipment and for this, he placed reliance on copy of bill, annexure P-1. According to him, the signatures of the Customs Authorities dated 31.3.2000 bear the seals of the Authorities as token of having checked the goods after its value was appraised on opening of 50 packages at random. He contended that notice in question has been issued to the petitioner in order to humiliate and harass him under the threat of prosecution under Section 135 of the Act. At the same time, he admitted that so far, no case has been registered against the petitioner-accused by the Authorities but according to him, in view of the stand taken by the respondents in the detailed written note of arguments filed in the court of Sessions Judge, Amritsar, copy of which is Annexure P-3, there is allegation against the petitioner that he has manipulated the documents in order to show that he had got the goods cleared on 31.3.2002 whereas the goods were factually exported on 5.4.2000 and thus, the apprehension of the petitioner that he would be arrested after his appearance before the Authorities is well-based and he needs to be protected under the provisions contained in Section 438 Cr.P.C. 5. In order to appreciate the submissions made a notice of Section 108 of the Act has to be taken, which reads as under :- "108. Power to summon persons to give evidence and produce documents. - (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. Power to summon persons to give evidence and produce documents. - (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)." 6. A bare examination of provisions of Section 108 of the Act would show that power has been vested in any gazetted officer of custom to summon any person whose attendance he deems necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. It is also mentioned therein that the person summoned is bound to attend either in person or by an authorised agent as such officer may direct, and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required. The above provisions further reveal that such inquiry has to be deemed as judicial proceeding within the ambit of Sections 193 and 228 of the Indian Penal Code. The above provisions further reveal that such inquiry has to be deemed as judicial proceeding within the ambit of Sections 193 and 228 of the Indian Penal Code. Notice/summons dated 22.4.2002 (Annexure P-1) placed on record by the petitioner itself reveals that the petitioner has been only summoned in connection with an enquiry being conducted by the Superintendent, Anti-smuggling, Customs Commissionerate, Amritsar, in respect of Hand Tools exported by him against shipping bill No. 2213 dated 30.3.2000 being Container Freight Station (OWPL) under Bill of Lading No. 39614802 dated 31.3.2002. It is not even the case of the petitioner that the Authorities have accused him of any offence or from the notice placed on record a conclusion can be drawn that accusations have been made against him for infringing the provisions of the Act. That being the position, the petitioner-accused has not been able to make out a case for extending the benefit of pre-arrest bail within the ambit of Section 438 Cr.P.C. It is well settled that the Authorities acting under the provisions of 108 of the Act cannot be equated to the police officer in terms of provisions of Section 25 of the Indian Evidence Act. Notice dated 22.4.2002 has been sent to the petitioner to explain his position with regard to goods exported by him, as noticed above, which power is vested in the Authority as is clearly made out from the provisions of Section 108 of the Act. During the course of arguments, counsel for the petitioner has admitted that the petitioner has not appeared before the Superintendent (Anti- Smuggling) Customs Commissionerate, Amritsar, on the date fixed. He has also admitted that another notice dated 17.5.2002 was also received by the petitioner whereby he was called upon to appear on 20.5.2002 but in pursuance to that he has not put in appearance. 7. The totality of the circumstances on record noticed above do not warrant concession of pre-arrest bail to the petitioner. Consequently, the petition is dismissed.