P R BIRDI Vs. KULVINDER SINGH BAJAJ

JUDGEMENT

(1.) The two revision petitions arise from the order dated 22.8.1998 passed by Ms.Sangita Dhingra Sehgal, Addl. Chief Metropolitan Magistrate (in short ACMM'), New Delhi on an application by the Inspector of Customs (hereinafter- referred to as 'Customs') for extension of judicial remand of Kulvinder Singh Bajaj (hereinafter referred to as' the accused) for an offence under Sections 132 and 135(l)(a) of the Customs Act, 1962. Criminal Revision Petition No.330/98 is presented by the Customs whereas the Criminal Revision Petition No.459/98 is presented by the accused. The allegations against the accused, as disclosed by the learned ACMM and which are relevant for the present revision petitions are as follows: The accused is an authorised agent of M/s. Punit Exports, Ludhiana. He was also acting as an agent for M/s. O.K. Hosiery Mills Ltd. and M/s.Hindok Exports. On 12.5.1998 the accused filed a claim for duty drawback against shipping 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 accused who was arrested by Shri P.R.Birdi, Inspector of Customs was opposed by the accused. The principal argument advanced by the accused was that he had not committed any offence under Sections 132 & 135(l)(a) of the Customs Act and accordingly he could not have been arrested or remanded to judicial custody for any such offence. The learned ACMM then proceeded to examine the question as to whether any offence under the Customs Act was at all made out.

(3.) The learned ACMM found that for a duty drawback claim there should have been some export of goods whereas the allegations against the accused shows no such export. The learned ACMM observed that no offence under Sections 135 or 132 of the Customs Act was at all made out against the accused on the basis of such allegations. Further the learned ACMM took serious note of the omissions made in the investigation. In the first place, the role of proprietors/partners of these firms had not been looked into. Secondly how the claims of Punit Exports and the other two firms were cleared against the shipping bills of other firms and how the forgery and discrepancy escaped the notice of the officers of the customs had also escaped the attention of the investigation. It was noted by the learned ACMM that the total amount embezzled was to the tune of Rs.1 crore. The claim papers of Punit Exports had been duly verified and cleared by customs officers while some rubber stamps and signatures of customs officers may have been forged. In this view, the ACMM instead of remanding the accused for an offence under Sections 132 & 135 of Customs Act remanded him to judicial custody for an offence of forgery and cheating. She passed the following order: