Central Bureau Of Investigation, ... vs Shri K. Harwinder Bawa And Anr. And ...
2003 Latest Caselaw 363 Bom

JUDGMENT

S.S. Parkar, J.

1. In these Revision Applications following two questions have been referred for consideration of the Division Bench by the learned Single Judge of this Court:

(1) Whether the Issuance of Public Notice dated 20.6.1995 about standing order dated 20.6.1995 would constitute notice to the respondents?

(2) Whether non-accompanying of packing list with the baggage requires the officer to carry out 100% verification and whether discrepancy in the description describing the quantity of goods given in declaration and description in valuation as is found in the subsequent verification done by the CBI are sufficient to proceed further with the accused by setting aside the impugned order?

2. Both these criminal revision applications are directed against the orders of discharge passed by the Special Judge in a prosecution in which the officers of Customs were sought to be prosecuted along with the accused who had come back to India after transfer of his residence. The charges levelled against them are of conspiracy and cheating for charging less duty on the un-accompanied baggage which had arrived at Indira Docks, Mumbai.

3. The allegation is that the accused had cleared commercial goods by undervaluing in breach of the Baggage Rules and Standing Order issued by the Customs Department dated 20th June 1995 which resulted in loss of custom duty to the Department. The respondents-accused, who are the officers of the Customs Department, applied for discharge and their applications were allowed by the impugned orders dated 26th April 2000 on the ground that there is no sufficient material for framing charge against them. The prosecuting agency had relied on the Standing Order of Customs dated 20th June 1995 under which the Custom Officers like respondents-accused are required to carry out 100% verification of the baggage but as against that the respondents-accused had examined the unaccompanied baggage to the extent of 10% only. As per the Standing Order dated 20th June 1995, in case of un-accompanied baggage 10% of the baggage could be examined if a packing list is enclosed and in case no packing list is available, 100% examination should be carried out by the Baggage Officer. It is, however, the case of the respondents-accused that the Standing Order dated 20th June 1995 issued by the Customs Department was sent to the concerned department only on 29th July 1995 and was circulated to the respondent in Cri. Revision Application No. 367 of 2000 on 31st July 1995 and to the respondent in Cri. Revision Application No. 368 of 2000 on 4th August 1995 and, therefore, there was no question of the accused complying with the said Standing Order on 7/7/1995.

4. Reliance was placed on behalf of the accused on the earlier Notification dated 8th April 1993 on the subject of the Transfer of Residence Rules 1978 and Clearance of un-accompanied baggage. Para 3 of the said notification states as follows: "3.It has, therefore, been decided that in such cases, only 10% of the packages should be opened and examined and full examination should be resorted to only in cases where any discrepancy is noticed on such percentage examination."

5. The learned Special Judge was of the view that since the incident in question had taken place on 7th July 1995 but the Standing Order dated 20/6/1995 was served on the respondents-accused on 31st July 1995 and 4th August 1995, they were not bound to undertake 100% verification of the goods. Accordingly, the respondents-accused were discharged from the prosecution.

6. The said two orders were challenged by the CBI, ACB, Mumbai in the above two revision applications in this court. They came up for hearing before Justice D.G. Deshpande. On behalf of the respondents-accused reliance was placed on the earlier judgment of Justice Kakade in Criminal Revision Application No.98 of 2001 and others which were disposed of on 9th January, 2002 in identical situation. Justice Kakade by the said Judgment had taken a view that since the Standing Order dated 20th June 1995 was actually brought to the notice of the accused in those cases after 23rd July 1995, they were not expected to follow the said Standing Order on 7th July 1995 as the Public Notice dated 20th June 1995 was meant for public consumption and addressed to the passengers without making reference to the Standing Order of the same date. Therefore, the order of discharge as against the accused, similarly situated, passed by the learned Special Judge was upheld.

7. Justice D.G. Deshpande, after considering the submissions made on behalf of the CBI and the Judgment of Justice Kakade, referred the above questions to the Division Bench.

8. On behalf of the applicant Mr. Satpute contended that though the Standing Order dated 20th June 1995 might have been served subsequently i.e. after 7th July 1995 which is the date of the incident in question, yet a public notice was also issued by the Commissioner of Customs on 20th June 1995 and the Officers of the Customs were supposed to know the contents of the public notice and, therefore, ought to have followed the Standing Order dated 20th June 1995 and made 100% checking because the un-accompanied goods were not accompanied by a packing list.

9. In order to appreciate the above submission we will have to consider the contents of the two documents, (1) Standing Order and (2) Public Notice, both dated 20th June 1995. The subject mentioned in the Standing Order is as follows:

"Sub: Clearance of baggage at Unaccompanied Baggage Centre, Indira Docks, Bombay

- working procedure - regarding."

The said Standing Order was issued by the Assistant Commissioner of Customs. The first paragraph of the Standing Order reads as follows:

"The procedure relating to the examination of the baggage at the Unaccompanied Baggage Centre has been reviewed and following guidelines/procedure is prescribed superceding all the earlier instructions issued in this regard."

The relevant portion of the Standing Order, on which reliance has been placed, appears in paragraph

(vi) of the said Order, which reads as follows:

"vi) .....As per Ministrys letter no.447/2/92-CUS VI dated 08/04/93, 10% of the package should be examined if a packing list is enclosed which means that 10% examination should be resorted to only in those cases where a packing list is available alongwith the B.D. Form. In case no packing list is available, 100% examination should be carried out by the Baggage Officer."

10. So far as the Public Notice dated 20th June 1995 is concerned, it was issued to the members of the public i.e. essentially those members of the public who were importing the goods as unaccompanied baggage on the transfer of residence. The said public notice cannot be said to be meant for the officers of the customs in view of the fact that separate Standing Order, again dated 20th June 1995, was issued and circulated among the officers and their signatures were obtained in acknowledgment of being brought to their notice. The said Standing Order having been circulated among the officers after 7th July 1995 i.e. the date when the unaccompanied baggage had arrived in India, in our opinion, the prosecution will not be able to rely on the same. It is pertinent to note that the tenors of the two documents are different; while one is addressed to the public the other is meant for the officers of the Department. The very practice of issuing separate orders for the officers followed by the department creates expectation among the officers that whenever any change in the rules is introduced the same would be brought to their notice by the department by issuing suitable directions in that behalf and they are not supposed to keep on checking public notices.

11. We are, therefore, of the view that the Respondents cannot be said to have constructive notice of Standing Order dated 20th June 1995 by virtue of the public notice issued on 20th June 1995. We, thus, answer the first question accordingly. We may hasten to add that it is, however, different thing that by virtue of the circular dated 8th April 1993 itself the officers were supposed to carry out 100% examination of the packages, by necessary implication, in case the packages were not accompanied by a packing list.

12. This takes us to consider the second question referred by the learned Single Judge. So far as the second question is concerned, in our opinion, it is implicit in the circular dated 8th April 1993 that in the absence of packing list accompanying the packages the officers were required to carry out 100% verification of the baggages.

13. Though in the Standing Order dated 20/6/1995 reference is made to the Notification dated 8th April 1993 stating therein that as per the Ministrys letter dated 8th April 1993 10% of the baggage should be examined if a packing list is enclosed, it is contended on behalf of the accused that in the said notification/letter there is no mention of the condition that if a packing list is enclosed then only 10% of the baggage should be examined.

14. In our view the said contention is devoid of merits. As per the notification dated 8th April 1993, 100% examination of the un-accompanied baggage was causing unnecessarily delay and therefore, it was decided that only 10% of the packages should be opened and examined and full examination should be resorted to only in cases where any discrepancy is noticed on such percentage examination.

15. In our view, the discrepancy cannot be noticed unless and until the packages are accompanied by a packing list. This would imply that as per the notification dated 8th April 1993 if the packages are not accompanied by a packing list, the Baggage Officers were supposed to carry out 100% examination of the packages. It is not the case of the accused that they had no knowledge of the Notification dated 8th April 1993.

16. In our opinion, since the order dated 9th January, 2002 passed by Kakade, J. only considered the effect of public notice dated 20th June 1995, it was open for the learned Single Judge, who referred these revision applications to the Division Bench, to consider the matters independently on the basis of circular dated 8th April 1993 which according to us does, by necessary implication, require the officers to undertake 100% examination of the packages in the absence of a packing list. Moreover, since the circular dated 8th April 1993 itself restricts the 10% examination of the goods only in the absence of discrepancy that may be noticed by the officer, it goes without saying that any discrepancy in the valuation and in the quantity of the goods mentioned in the declaration would require the officer to go for 100% examination of the goods. Whether non examination of the packages by the officers to the extent of 100%, inspite of the discrepancy found by them, would be sufficient ground to proceed against the officers or not can be decided by the learned Single Judge in the revision applications on the basis of facts in the light of our above answers to the questions referred for our decision. We answer the reference accordingly.

17. The registry shall place these matters before the learned Single Judge for decision on merits in accordance with the view expressed by us.

On the application of Counsel a copy of this order duly authenticated by the Personal Secretary of this Court can be issued to the parties.