ANIL SHOOR Vs. UNION OF INDIA

JUDGEMENT

(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. 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.) 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.