Dharam Pal vs J.P.S Ingh, Air Customes Officer
2000 Latest Caselaw 808 Del

ORDER

R.S. Sodhi, J.

1. The petitioner by this petition under Section 482 of the Code of Criminal Procedure(for short 'the Code') seeks quashing of criminal proceedings which emanated from a complaint filed by the Air Customs Officerrespondent under Sections 132 & 132(1)(a) of the Customs Act, 1992 (for Short 'the Act'). It is the case of the petitioner that sanction for prosecution has been given without the sanctioning authority applying its mind. The petitioner has also called into question the competency of the Additional Collector of Customs to accord sanction for prosecution.

2. Brief facts of the case are that a complaint was filed in the Court of Additional Chief Metropolitan Magistrate by the Air Customs Officer, Indira Gandhi International Airport, to the effect that the Additional Collectors of Customs, Indira Gandhi International Airport, has accorded sanction for prosecution of the petitioner herein by virtue of the powers vested under Section 137(1) of the Act which has authorized the complainantrespondent to file the complaint. It was alleged in the complaint that on the night of 10.11.9.1998, while checking of passengers bound for Bangkok by Thai Airways flight No.TG-195 was in progress in the departure hall at Indira Gandhi International Airport, New Delhi, two officers of the Preventive Section were keeping surveillance on the checking in passengers behind the customs counter. Around 00.05 hours, they noticed the accused hovering round the counter where customs clearance of aforesaid TG-915 flight was going on. Upon being confronted, the accused replied that he had come to receive someone in the arrival hall and had drifted to the departure hall incidentally to meet his old colleague. The accused, who was working as Inspector, Central Excise, Delhi, was earlier posted at Indira Gandhi International Airport as Air Customs Officer. After sometime, the accused was seen moving toward the security gate No.10 where the security checking ofBangkok bound passengers was in progress. Suspicion having been aroused of the Preventive officers, they challenged the accused with whom they found a boarding card, and the accused had purportedly cleared the security check at Gate No.10 as passenger Upon checking at the Customs counter, it was found that the accused had not taken customs clearance and his name was not struck off the passenger manifest which was indicative that the customs clearance had not been taken. It appeared at that time that the accused had misused his status of a Customs Officer and stamped his boarding card fraudulently without actually reporting at the concerned customs counter. The accused was asked whether he was carrying any foreign/Indian currency , upon which he replied that he had FTS of 500 US dollars and 20 dollars purchased from the Bank at the airport. A personal search was conducted in the presence of two independent witnesses which resulted in the recovery of foreign and Indian currency equivalent to Rs. 96,664.45 and upon the accused not being able to satisfactorily explain, the same was seized under Section 110 of the Act and panchnama drawn. It was the case of the complainantrespondent that in a statement under Section 108 of the Act, the accused admitted the aforesaid recovery seizure and other incriminating facts . The action of the accused had resulted in his having committed an offence punishable under Section 132 of the Act. It was stated that the accused knowingly and fraudulently evaded or attempted to evade all the prohibitions imposed on the export of the aforesaid currency under Section 13(2) of the Foreign Exchange Regulation Act, 1973 (for Short 'FERA' ) read with Section 11 of the Act, as made applicable by Section 67 of the FERA. Thus the accused had committed an offence under Section 135(1)(a) of the Act.

3. Learned counsel for the petitioner, as stated, attacked the sanction on the ground of nonapplication of mind as also lack of jurisdiction. It was argued by learned counsel for the petitioner that under Section 137(1) of the Act the sanctioning authority was the Collector and, therefore, the sanction having been accorded by the Additional Collector, the same was bad. It appears that the learned counsel, while making this argument, overlooked Section 2 subclause (viii) of the Act which defines the Collec tor to include Additional Collector. This attack, therefore, lacks necessary punch. However, not giving up here, the learned counsel went on to challenge the sanction order on the ground that all relevant material had not been placed before the sanctioning authority and, therefore, it is a case of nonapplication of mind which, in turn, makes the sanction bad in law. He argued that the accused had made complaints dated 1.6.1988, 1.8.1988 and 6.8.1988 to the higher authorities to the effect that the complaint was likely to involve him in false case in view of the fact that he had not obliged the complainant and other officers in their illegal activities and that these letters having not been placed before the sanctioning authority, the material collected of the incident in question alone could not be termed as 'sufficient/relevant material'. He further argued that the matter has been pending trial for over 12 years and in view of the Supreme Court judgment in Raj Deo Sharma Vs. State of Bihar, VIII(1998) SLT 194 the criminal proceedings ought to be dropped.

4. Mr. Aggarwal, learned counsel for the respondent Customs argued that Mr. J.P. Singh, the complainant, has been examined twice before the learned Additional Chief Metropolitan Magistrate and on both occasions the peti tioner had opportunity to crossexamine him, but nonwhere has any suggestion been given to him regarding the socalled complaints made against him and/or any suggestion made or put to the complainant of his being enemical and wanting to fix the petitioner in some false case. He submits the complaints as such made by the accused are not relevant material for the purposes of this case and that all material relevant has been placed before the sanctioning authority who has upon consideration of the same granted sanction for prosecution. On the question of delay, he has placed on record the entire order sheets of the case.

5. Having already held that Collector also includes Additional Collector, the question of power to grant sanction is no longer live for consideration. The only thing that remains is whether the sanction order suffers from nonapplication of mind or not. A careful perusal of the sanction order and also taking into consideration the reply of the Customs Department, it is clear that all relevant material in connection with recovery and/or seizure of currencies, Indian as also foreign, was placed before the sanctioning authority who upon taking the same into consideration was of the opinion that it was a good case to accord sanction for prosecution under Sections 132 and 135(1)(a) of the Act and went on to authorize Mr. J.P. Singh, Air Customs officer, Indira Gandhi International Airport, New Delhi, to file a complaint against the accused in a competent Court of law. The sanction order, therefore, having been passed on relevant material suffers from no infirmity.

6. I have gone through the record of the case and have carefully scrutinized the crossexamination of PW-1, Mr. J.P. Singh, which has run into many pages and stretched on for many days. I do not find any mention of the socalled complaints which, according to the petitioner, are relevant material. Therefore, it can safely be said that the trial court took cognizance of the offence on the strength of the sanction accorded by the Additional Collector and that the accused never raised any objections regarding sanction when his case was in the trial court. The case sought to be put up in the instant petition is a shot in the dark which was not even put to the witness and, therefore, is clearly an afterthought. On the question of delay, a status report was called for from the trial court which has satisfactorily explained the delay. Even a perusal of the order sheets shows that the accused himself has also been partially responsible for it and, therefore, I am not inclined to give him any benefit of this ground.

7. In this view of the matter, I find no merit in this Criminal Misc. (Main) No.1613 of 1998 . The same is, accordingly, dismissed.