L.R. MELWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application is directed against the order passed by the Presidency Magistrate, 26th Court, Mazagaon, Bombay, in Case No. 132/W of 3965 rejecting certain prayers made on behalf of the petitioners, who were accused Nos. 1 and 2 in that case. The Assistant Collector of Customs of the Appraising Department, Bombay, filed a complaint against five persons including the petitioners (who will hereafter be referred to as accused Nos. 1 and 2 respectively) under Section 120B, Indian Penal Code, read with Clauses (57), (75), (76) and (81) of Section 167 of the Sea Customs Act, 1878 and Section 5 of the Imports and Exports (Control) Act of 1947 and also under Section 167(57) and Section 167(75) and 167(75) of the Sea Customs Act, 1878. The material facts as disclosed by the complaint may be set out as follows: Four consignments bearing marks (V.I.P.) were imported by accused No. 3 on behalf of the company by name M/s, Champaklal Ananthram which reached Bombay harbour on December 15, 1959. The manifest showed the four eases as containing Nylon Oriental Georgette. Accused No. 3 purported to import Nylon Georgette under the licence granted to him under Export Promotion Scheme. Accused No. 3 opened a letter of credit for the import of the said Nylon Georgette through the Indian Overseas* Bank Ltd., Bombay. M/s. Larmell Enterprises of which accused No. 1 is the proprietor and accused No. 2 the manager guaranteed the letter of credit. The guarantee was signed by accused No. 1, L.R. Melwani as the proprietor of M/s. Larmell Enterprises. The complainant has asserted that though the shippers of the said four consignments were shown as four different parties viz. (1) M/s. Y. Lilaram and Co. (Singapore) Ltd. (2) M/s. New Era Traders, (3) M/s. Meridian International Agency and (4) M/s. Traders Syndicate, they are one and the same persons and in fact they negotiated the import documents in respect of the four consignments, through the same letter of credit. The import documents disclosed the contents of the said four consignments as Nylon Georgette quality 633 and each consignment as being of one case bearing marks (V.I.P.) and containing Nylon Georgette quality 633 of the value of Rs. 1,185. M/s. P. Jamnadas and Co., who are the clearing agents, filed one bill of entry on December 16, 1959, in respect of one case. They purported to act as agents of M/s. Champaklal Ananthram. That case was examined on December 26, 1959, and found to contain Nylon Georgette as per the declaration. The bill of entry presented was in respect of item No. 423, On December 29, 1959, M/s. P. Jamnadas and Co., on behalf of M/s. Champaklal Ananthram filed three more bills of entry in respect of the remaining three consignments relating to items Nos. 424 to 426 of the Import General Manifest (hereinafter referred to as the manifest). The markings on these three cases were the same siz., VIP. This duplication of marks aroused the suspicion of the Appraiser. The bills of entry, therefore, were returned to the representative of the said clearing agents viz., M/s. P. Jamnadas and Co. for further action. It is alleged that the accused on finding endorsements regarding duplication of marks on the said bills of entry realized that the same would lead the examining authorities to examine all the cases simultaneously and thus expose their fraud. Therefore, they did not process the said bills of entry further and kept back the same. Further enquiries revealed that the measurements of the three cases out of the said four cases bearing the same marks viz., VIP., were 22 c. ft. each as against the measurement of the fourth case, which was 7 ft. 10 inches c. ft. (This was the case which was already examined). According to the complainant, the measurements were deliberately omitted from the bills of lading to avoid detection by the Customs that the measurements of one of the said four cases all bearing marks 'VIP' were much smaller than those of the remaining three cases. It is suggested that this trick was adopted to enable the conspirators to distinguish the smaller ease as the case containing genuine goods so that only the small case should be taken for examination on every occasion. It is also suggested that the modus operandi adopted was this: After the examination of the small case containing genuine goods, delivery would not be taken of the small ease, but delivery would be taken of one of the three cases also bearing marks VIP and which the conspirators knew contained contraband. It is the case for the prosecution that what was removed on December 23, 1959, was not the small case that was actually examined but one of the three bigger cases. On January 11, 1960, the Customs called upon the clearing agents M/s. P. Jamnadas and Co. and also M/s. Champaklal Ananthram to return the said bills of entry in respect of the consignments, relating to items Nos. 424 to 426 and the same were returned on January 14, 1960. By a letter dated January 26, 1960, M/s. Champaklal Ananthram were asked to have the cases examined under the three bills of entry. They, however, informed the Customs that apart from the case already examined under the bills of entry for item No. 423 (viz., the small case containing genuine goods) only one more case could be traced. So on January 28, 1960, the remaining case which related to item No. 424 was examined in the presence of accused No. 2 and one Kadam, the authorised representative of accused No. 3. On examination of the said case it was found to contain contraband goods viz., wrist watches, straps, motor car upholstery material, textile goods etc. of a very high value. The other two cases could not be traced at that time. It is alleged that on further enquiries the Customs learned that the said two cases were surreptitiously removed by the accused on or about January 2, 1960, as stated hereafter. Two more consignments were imported from Singapore per s.s. Yamataru Maru. M/s. Larmell Enterprises had an import licence for import of Nylon Georgette under the Export Promotion Scheme. They opened a letter of credit dated October 15, 1959, through the Indian Overseas Bank Ltd., for the import of Nylon Georgette quality 633 in favour of M/s. V. Lilaram and Co., Singapore. Accused No. 2 signed the application and the agreement for the opening of the said letter. Two consignments each comprising two eases and both bearing marks 'LE' were shipped at Singapore per s.s, yamataru Maru on or about November 20, 1959, under the said letter of credit and arrived at Bombay on or about December 10, 1959. These two consignments were manifested as items Nos. 150 and 152 of the manifest for Yamataru Maru. It is the case for the prosecution that one of the said two consignments contained contraband goods which were smuggled by resorting to duplication of marks. The bill of entry was presented in respect of only one of the two consignments which related to item No. 150 of the manifest in the first instance. It is only after the examination of the two cases in respect of the aforesaid bill of entry, the accused filed the bill of entry in respect of the second consignment relating to item No. 152 of the manifest. It is alleged that the accused while taking delivery of the consignment under the first bill of entry took cross delivery and removed the consignment of two cases, which were not the cases examined under the bill of entry for item No. 150 but the other consignment of two cases also bearing marks 'LE' and containing contraband goods. According to the prosecution, the delivery of these two cases was taken on December 23, 1959. The second bill of entry relating to item No. 152 was presented on December 26, 1959 and two cases bearing marks 'LE' were taken for examination by accused No. 4. It is alleged that there were only the marks 'LE' in respect of these two' cases as declared in the bill of entry. There' were no additional words or marks beside 'LE'. The Customs Examiner, Dolas, examined the two cases bearing marks 'LE'. Accused No. 5 was the Shed Appraiser in charge of the Customs Examination Centre at Shed No. 2 of Alexandra Docks, where the said two cases bearing marks 'LE' were examined. Accused No. 5 put his initials near the said examination report of the Examiner Dolas in token of its correctness. He, however, did not suggest on the original bill of entry that there were any discrepancies in the marks or there were any additional marks on the cases that were examined. The complaint alleges that the duplicate bill of entry for the same consignment now bears an endorsement 'Mark (VIP) addition'. This endorsement is in the handwriting of accused No. 5 and is initialled by him. It is the case for the prosecution that the said endorsement was made subsequently by accused No. 5 fraudulently acting in conspiracy with accused Nos. 1 to 4 with a view to falsely make it appear that the two cases bearing - marks 'LE' had in addition the further marks 'VIP'. It is suggested that this fraudulent action of accused No. 5 was with a view to facilitate accused Nos. 1 to 4 in removing the two bigger cases containing the contraband goods and bearing marks 'VIP' imported by s.s. Ozarda and that on January 2, 1960, they did take delivery of the said two bigger cases containing the contraband and bearing marks 'V.I.P.' imported by s.s. Ozarda under the pretence that they were taking delivery of the two cases bearing marks 'LE' imported by s.s, Yamataru Maru. It is alleged that as a matter of fact, the two eases bearing marks 'LE' imported per s.s. Yamataru Maru were not taken delivery of at all and subsequently the marks 'LE' on these two cases were fraudulently tampered with and altered to read 'EE'. It is the case for the complainant that the marks 'LE' were tampered with and altered to read 'EE' fraudulently by the conspirators with a view to avoid detection by the authorities that the two eases bearing marks 'LE' had not been taken delivery of and instead the two bigger cases bearing marks 'VIP' imported per s.s. Ozarda had been taken delivery of. It is alleged that the said two cases bearing marks 'LE' imported per s.s. Yamataru Maru, which were subsequently altered by the aforesaid acts to read 'EE' are still lying with the Bombay Port Trust authorities.

(2.) IT is thus the case for the prosecution that all the five accused were members of the conspiracy which commenced from the beginning of October 1959 and went on till the end of October 1960. Accused No. 3 joined the conspiracy on or about January 2, 1960.

(3.) ON behalf of accused No. 1 an application was made before the Presidency Magistrate, 26th Court, Mazagaon, Bombay asking for the following reliefs: (1) the present prosecution is barred by reason of the fact that the finding of the Collector in favour of accused No. 1 amounted to his acquittal. (2) the finding operated as an issue estoppel so far as the reception of the same evidence is concerned. (3) there had been inordinate delay in launching the prosecution. The prosecution, therefore, amounted to abuse of the process of the Court and the same should be quashed. (4) the copies of statements of various witnesses whom the prosecution intends to examine and also of the documents on which the prosecution proposes to rely including statements of the accused persons as well as notings, note sheets and reports of the Customs Officers made during the course of the investigation be supplied. In the alternative, it was prayed that summons be issued under Section 94, Criminal Procedure Code, directing the Collector of Customs or the Special Prosecutor to produce in the Court the aforesaid state - ments, documents, notings, note -sheets and reports of the Customs Officers before the commencement of the inquiry into the complaint.