PAWAN KUMAR Vs. DIRECTORATE OF REVENUE INTELLIGENCE

JUDGEMENT

(1.) Sh. S.K. Mishra, Intelligence Officer in the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi, is the complainant, who has filed complaint against six accused persons alleging that they have committed certain acts, which are offences punishable under Sections 132 and 135(1)(a) of the Customs Act. The allegations, stated in nutshell, against these accused persons are that they, which include, accused No. 5 A.K. Saxena, who is a customs officer, have floated various firms in false and fictitious names and some of the firms are not even existing at the given address. Under these assumed names they have allegedly exported readymade garments and claimed duty drawback amount to the tune of Rs. 1,04,62,596/-. Names of these firms and the manner in which they allegedly drew these duty drawbacks illegally by showing fictitious exports is mentioned in para 72 of the complaint. It is alleged that A.K. Saxena verified the feasibility report of factory stuff of export goods in respect of non-existing firms, namely, Dig Dig Creations, Anu Exports, Amico International, Zebra Inc and Prayas Enterprises. The allegations against him specifically are that he connived with other accused for fraudulent export of inferior quality of readymade garments, which had been over invoiced. Some of the other accused persons, namely, Pawan Kumar, Govind Jha, Radhey Lal and Gurcharan Singh in their statements under Section 8 of the Customs Act have also corroborated this fact. It is stated in the complaint that A.K. Saxena was supposed to draw representative samples from the consignments of exported goods but, in fact, he has not drawn the samples from the containers, which were to be exported but arranged samples from open market from Faridabad. According to the allegations made in the complaint, samples of exported goods received from Dubai authorities through Consulate General of India were old, used and torn rags only. It is, on this basis, alleged that these firms made exports of these inferior quality garments and in fact, used and torn rags giving false description and in this manner, claimed fraudulently duty drawback of more than a crore of rupees. The learned ACMM took cognizance of the compliant and issued summons to all the accused persons vide order dated 16.4.2003. After receiving the summons, four accused persons, namely, Pawan Kumar, Gurcharan Singh, Govind Jha and A.K. Saxena filed application for their discharge. This application has been dismissed by the learned ACMM vide impugned order dated 1.10.2003 and challenging this order, present petition has been filed.

(2.) The submissions made at the time of arguments were the same, which were canvassed before the trial court. It would, therefore, be prudent to scan through the orders of the trial court to find out as to what these submissions were and how they are dealt with.

(3.) The petitioners raised two arguments. First submission was that in so far as Sh. A.K. Saxena is concerned, he was wrongly implicated and made accused in the proceedings under Section 135 of the Customs Act inasmuch as there was specific provision in the form of Section 136 of the Act for prosecuting a Customs Officer. The argument was that under Section 104 of the Customs Act, there was no power to arrest such officers and in order to arrest Sh. A.K. Saxena, the complainant had resorted to Section 135 and not Section 136 of the Act. It was also claimed that the Customs Officer does not fall within the term "any person" as occurring in Section 135.