MOHAMMAD YUSUF Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition is filed under section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India, for quashing the investigation started by the Preventive section of the Customs Department against the petitioner for offence under section 135 read with section 111(o) and section 11 of the Customs Act.

(2.) According to the petitioner he carries on business of export and commission agents under the name and style of M/s. Regent International, as a sole proprietor. He has export business with turn-over of more than 15 crores in last three years. He exports all kinds of Indian procedure 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 lacs 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 Industrial Company, having his office at 3/4/14(2) Vokla Patia, Near Water Tank Bhuj and Opposite Mental Comp. Bhuj, both in Kutch, in Gujarat State, and had necessary import and export licences for Audio Cassettes and Stainless steel hospital wares. These licences were obtained by him from the appropriate competent authorities. Under the said licences he imported goods and also exported them in accordance with the terms and conditions of the said licences. The nephew of the petitioner one Shri Khalid Badshah, had also started a business in the name of M/s. Roosen Exports and he is dealing with the said business of imports and exports on his own. However, according to the Customs Department the petitioner is the real person behind the scene and all these concerns are benami. It is also the Customs Department that the goods imported including audio cassettes, were exported according to the terms and conditions of the said licences and, therefore, the petitioner has committed offence under the Customs Act.

(3.) In support of his contentions that the whole investigation is mala fide, the petitioner has placed strong reliance upon the order passed by the Deputy Chief Controller of Imports and Exports dated 30th June, 1984. It is contended by him that on the allegation made by the Customs Department itself, the Deputy Chief Controller of Imports and Exports enquired into the matter and ultimately came to the conclusion that the licences were not obtained by the said firms 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 and so long as the order passed by the Deputy Chief Controller of Import 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 of the Supreme Court in A.I.R. 1982 S.C. 949 (State of West Bengal and others v. Sanchaita Investments and others) A.I.R. 1977 S.C. 1954 (Dr. Sharad Prasad Sinha-appellants v. State of Bihar-respondents) A.I.R. 1976 S.C. 1947 (Smt. Nagawwa v. Veerana Shivalingappa Konjagi and others)and A.I.R. 1970 S.C. 786 (S.N. Sharma v. Bipen Kumar Tiwari and others)