Gujarat High Court
Roop Narayan Meena S/O Harnarayan Meena vs Central Bureau Of Investigation on 30 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 911 of 2024
With
R/CRIMINAL APPEAL NO. 924 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
✔
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ROOP NARAYAN MEENA S/O HARNARAYAN MEENA
Versus
CENTRAL BUREAU OF INVESTIGATION & ANR.
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Appearance:
MR D K TRIVEDI(5283) for the Appellant(s) No. 1
MR RC KODEKAR(1395) for the Opponent(s)/Respondent(s) No. 1
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 30/06/2025
ORAL JUDGMENT
1. The present appeals have been preferred by the appellants
- convicts (i.e. the original accused nos.1 and 2) under Section
374 of the Code of Criminal Procedure, 1973, and is directed
against the judgment and order of conviction and sentence dated
04.04.2024 passed by the learned Special Judge, CBI Court
No.5, City Civil & Sessions Court, Ahmedabad, in Special (CBI)
Case No.18 of 2016.
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2. By the aforesaid judgment and order of conviction, the
present appellants-accused have been held guilty and convicted
for the offences punishable under Section 420 read with Section
120B of the Indian Penal Code, and consequently, they have
been sentenced to undergo rigorous imprisonment for three
years along with a fine of Rs.50,000=00, and in making default
of payment of fine, to undergo further simple imprisonment for
six months. The trial court, however, acquitted the present
appellants-accused from the charge for the offences punishable
under Sections 465, 471 of the Indian Penal Code as well as
under Section 13(1)(d) read with Section 13(2) of the Prevention
of Corruption Act.
The prosecution version, in a nut-shell, is as follows :
3. The case of the prosecution, in a nutshell, is that the
present appellants-accused (i.e. the original accused nos.1 and
2) were working as Superintendent and Inspector, respectively,
in the Customs and Central Excise Department, and the accused
no.3 Ankit D.Changani was working as one of the partners in the
partnership firm M/s.Amardeep Exports, Jamnagar, which is
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engaged in the business of importing duty free raw-materials
with an obligation to export the entire production made out of
such duty free raw-materials. It is the case of the prosecution
that the partners of said firm tried to export one consignment by
declaring it as brass electrical parts valued at Rs.1.08 crore and
they had also filed a shipping bill bearing no.3814591 dated
29.10.2015 with the Mundra SEZ Port, Mundra. The said
consignment, which was stuffed in a container bearing no.
BLJU2350372, was to be exported to M/s. Secure Link, LC,
Dubai (UAE). It is the case of the prosecution that on
28.10.2015, the accused no.1 Roop Narayan Meena
(Superintendent) and the accused no.2 Rahul Chhabra
(Inspector) had supervised and examined all the stuffing of the
container by way of an examination report under their seal &
signatures and had also sealed the container so that it may not
further be checked and examined at the port by the Customs
Department. It is alleged that on the basis of the specific
information, the Director of Revenue Intelligence, Ahmedabad,
called back the said container from the high sea and it was
landed at the Mundra Port on 15.11.2015 with the same seal
intact, and on opening and examining the said container under
due process by the DRI, it was found that the entire container
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was stuffed with 724 cartons packed with cement bricks instead
of brass electrical parts, as declared by the exporter. It is further
alleged that the total duty availed on the raw materials as per
the ARE-I by M/s.Amardeep Exports against the alleged export
was Rs.23,30,270=00.
4. It is the case of the prosecution that the present appellant-
accused nos.1 and 2, being public servants, hatched a criminal
conspiracy with M/s.Amardeep Exports, and in furtherance
thereto, they dishonestly and fraudulently entered wrong
verification under their seal & signatures in the examination
report and showed undue favour to M/s.Amardeep Exports,
thereby causing wrongful loss to the Government and the Public
Exchequer to the tune of Rs.23,30,270=00 and corresponding
wrongful gain to M/s. Amardeep Exports, Jamnagar.
5. An FIR in this regard came to be lodged on 21.01.2016,
and after the registration of the FIR, the Investigating Officer
carried out the investigation, and during the investigation, the
statements of the relevant witnesses conversant with the alleged
offence were recorded, necessary panchnamas were drawn,
several documentary evidence were collected, and after having
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found adequate evidence against the present appellants-
convicts, they were arrested and a charge-sheet came to be filed
against the appellants-accused, which was registered on
29.06.2016.
6. The Charge was framed on 31.03.2017 vide Exh.11 against
the appellants-accused for the offences punishable under
Sections 420, 465, 471 read with Section 120B of the Indian
Penal Code as well as under Sections 13(1)(d), 13(2) of the
Prevention of Corruption Act, whereupon the accused pleaded
not guilty and claimed to be tried.
7. To bring home the charge, the prosecution had examined
24 witnesses and adduced 96 documentary evidence in support
of their case, which are as follow :
WITNESSES
WITNESS NAME EXH.
1. Rakesh Kumar Sharma, Chief Commissioner, 26
Central Excise, GST & Customs, Bhuvaneshwar
Zone
2. Chhaganbhai Ravjibhai Tarpara, Panch Witness 45
3. Girishbhai Pranjivanbhai Parmar, Sr.Intelligence 49
Officer, DRI, Jamnagar
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Trishul Transport Company
5. Dharmarao Kilayaa Budda, Branch Manager, M/ 73
s.Velji Dosabhai & Sons Pvt. Ltd.
6. Hareshbhai Pachanbhai Maheshwari, Asst. 80
Manager, Saurashtra Infra & Power Pvt. Ltd.,
Mundra
8. Surendrasinh Natvarsinh Gohil, Superintendent 95
of Customs, Central Excise & Service Tax
Sr.Intelligence Officer
10. Shankarbhai Jashabhai Bokha, Sr.Intelligence 154
Officer, Jamnagar
12. N.V.V.R.S. Murthy, Clerk, Kandla Specific 172
Economic Zone
13. S.Ramesh Shrinivas Raghvan, Superintendent, 180
CGST, Vadodara
14. Hiteshbhai Jayantilal Mehta, Assistant, 196
Development Commissioner Office, Kandla
Specific Economic Zone
15. Rajendraprasad Harshai Meena, Chemical 225
Examiner at Customs House Laboratory
16. Dashrathan Rajaraman, Joint Director at 234
Customs House Laboratory
17. Dipeshbhai Kishorechandra Chudasma, Regional 253
Process Manager, Kotak Mahindra Bank,
Jamnagar Branch, Jamnagar
18. Vishalbhai Chhaganlal Ghamsani, Operation 263
Head in Axis Bank
19. Mrudul Upendrabhai Bhatt, Alternate Nodal 298
Officer in Vodafone Idea
20. Babulal Ugajibhai Rathod, Dy.Manager, SBI, 313
Jamnagar
21. Nimbaram Sonaram Devasi, Dy.Director, DRI 315
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22. Zakirhussain Noormohmmad, Additional 325
Director, GST, Intelligence, Ahmedabad
23. Anilkumar Dabas, Deputy Superintendent of 333
Police, CBI
24. Ashish Shashikant Joshi, Panch Witness 339
8. The documentary evidence consisted of the statements,
sanction orders, receipts memo, bills of entries, circulars,
returns, panchnamas, production-cum-receipt memos, challans,
correspondences, invoices, gate-pass, checklist, declaration,
shipping bills, survey report, test memos, reports, tally sheet,
letter of permission, license, notifications, public notices,
partnership deed, search list, seizure memo, etc.
9. After completion of the evidence, the further statements of
the appellants-accused were recorded under Section 313 of the
Code of Criminal Procedure and the appellants-accused had
explained the incriminating circumstances that they have no
personal knowledge and they don't know anything. During the
course of the recording of the statements under Section 313 of
the Code of Criminal Procdure, the appellants-accused had
submitted their further explanation vide Exhibits 397 and 402,
respectively.
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10. On completion of the trial, the trial court found the
appellants-accused guilty of the charges levelled against them
under Section 420 read with Section 120B of the Indian Penal
Code, and consequently, sentenced them to suffer rigorous
imprisonment for three years vide judgment and order dated
04.04.2024 passed in Special (CBI) Case No.18 of 2016.
11. Being aggrieved and dissatisfied with the judgment and
order of conviction and sentence, the appellants-convicts have
preferred the present appeals before this Court.
SUBMISSION ON BEHALF OF THE APPELLANT-ACCUSED.
12. Learned advocate Mr.Devashish K.Trivedi appearing for the
appellants-accused has vehemently and fervently contended that
the entire case of the prosecution is false and fabricated. No
convincing evidence has been led to prove the offence of
conspiracy and cheating. It is also contended that the appellants
are public servants and they have been charged for the offences
punishable under Sections 420, 465, 471 read with Section
120B of the Indian Penal Code as well as under Section 13(1)(d)
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read with Section 13(2) of the Prevention of Corruption Act. It is
contended that the sanction to prosecute the appellants was
obtained by the prosecution only qua the offence punishable
under the provisions of the Prevention of Corruption Act,
however, no sanction was obtained by the prosecution for the
offences punishable under the provisions of the Indian Penal
Code. It is submitted that Section 197 of the Code of Criminal
Procedure requires that, when a public servant is to be
prosecuted under the Indian Penal Code, a separate sanction for
the same is necessary.
13. While referring to the Charge at Exh.11, learned advocate
Mr.Trivedi has submitted that, in all, there were three charges.
As per charge no.1, both the appellants herein, in collusion with
the original accused no.3 Ankit D.Changani, had hatched a
criminal conspiracy to cheat the Government and the Public
Exchequer by way of submitting false export related documents,
which were endorsed by the present appellants, thereby they had
obtained duty benefits on raw-materials as per the ARE-I
amounting to Rs.23,30,270=00. So far as charge no.2 is
concerned, it is submitted that the same has been levelled only
against the accused no.3 Ankit Changani, which was with regard
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to deficit of the available stock of brass scrap. As per charge
no.3, all the three accused persons had committed offences of
criminal conspiracy, cheating and forgery by way of submitting
false export documents as genuine and had also committed
criminal misconduct, punishable under Sections 420, 465, 471
read with Section 120B of the Indian Penal Code as well as
under Section Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act.
14. It is submitted that after the completion of the trial, both
the appellants herein were acquitted from the charge for the
offences punishable under Sections 465, 471 of the Indian Penal
Code as well as under Section 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act, however, they have been
convicted only for the offences punishable under Section 420
read with Section 120B of the Indian Penal Code.
15. Learned advocate Mr.Trivedi, while referring to the
evidence of the Investigating Officer (PW-23) Anilkumar Dabas,
has submitted that the Investigating Officer, in his evidence, has
specifically elicited that there is no evidence in the charge-sheet
to show that the accused nos.1 and 2 had demanded bribe from
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anyone. He has further elicited that there is no evidence in the
charge-sheet that the accused nos.1 and 2 (i.e. the appellants
herein) had obtained undue favour or advantage from anyone. It
is also elicited from the evidence of the Investigating Officer that
during the investigation, he did not find any antecedent against
the present appellants-accused. While referring to the
statements of the appellants-accused recorded under Section
108 of the Customs Act by the Directorate of Revenue
Intelligence, learned advocate Mr.Trivedi has submitted that the
trial court, while convicting the appellants-accused for the
alleged offences, has heavily relied upon the aforesaid
statements recorded by the Directorate of Revenue Intelligence.
16. Learned advocate Mr.Trivedi, while referring to the three
statements (i) dated 26.11.2015, (ii) dated 22.02.2016 and (iii)
09.03.2016 of the accused no.3 Ankit D.Changani, has
submitted that the accused no.3 Ankit Changani, in his
statement recorded by the DRI on 26.11.2015, has admitted that
due to financial crunch and with a view to recover the loss in the
business, he had exported cement bricks instead of brass
electrical parts, as declared. Further, in his statement recorded
by the DRI on 22.02.2016, the accused no.3 Ankit Changani had
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stated that he had never paid any amount to the appellants
herein with regard to the container in question or for any other
purpose. Similarly, in his statement dated 09.03.2016, he has
admitted that he had clandestinely removed the goods without
any documentation or without paying the duty and received cash
amount for the transaction. He has also stated that the Central
Excise Officers were completely unaware about all these illegal
removal of the goods. He has also clarified in his statement that
none of the officers was personally present at the premises of
M/s.Amardeep Exports during the stuffing of the container in
question.
17. Referring to the aforesaid admissions on behalf of the
accused no.3, it is submitted by learned advocate Mr.Trivedi that
it clearly appears from the aforesaid evidence that the appellants
were not aware about the fact that instead of the declared goods,
the exporter was trying to illegally export the cement bricks. It is
submitted that this evidence clearly suggests the motive for
accused no.3, while suggesting lack of any motive on the part of
the present appellants who were not even aware about such
illegal export and even about the clandestinely removal of the
goods. It is submitted that it becomes clear from the aforesaid
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evidence that both the appellants herein had no motive, mens
rea, malafide intention and had even no knowledge that the
accused no.3 had illegally stuffed the cement bricks instead of
the brass electrical parts, as declared, in the container.
18. It is submitted that from the conjoin reading of the
testimonies of the Investigating Officers (PW-23) Anilkumar
Dabas, (PW-21) Nimbaram Sonaram Devasi, Deputy Director,
DRI, and the statement of the accused no.3 Ankit D.Changani, it
becomes clear that the appellants herein had neither obtained
any wrongful gain nor had they any intention or motive or
knowledge to cause wrongful loss to the Government and the
Public Exchequer. Further, the appellants even had no
knowledge about the illegal act on the part of the accused no.3 of
cheating the Government and the Public Exchequer by stuffing
the goods other than the declared one, in the export container.
19. While pointing out the provisions of Sections 112A and
114AA of the Customs Act, 1962, learned advocate Mr.Trivedi
has submitted that the said provisions provide for the penalties
to even a person who abets in the commission of crime, whereas
the provisions of Sections 135 and 136 of the Act provide for the
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offences by officers of the Customs and the punishment for the
same.
20. While referring to the evidence of the Investigating Officers
(PW-21) Nimbaram Sonaram Devasi, Deputy Director, DRI and
(PW-9) Munesh Rajender Singh, Senior Intelligence Officer, DRI,
learned advocate Mr.Trivedi has submitted that both these
witnesses, in their respective evidence, have admitted that no
show-cause notices were issued for the penalties nor any
criminal complaint was filed against the present appellants by
the Department of Customs and Central Excise by invoking the
aforesaid provisions. This makes it clear that even the DRI has
not found the appellants guilty of any offence and, therefore, it
had not initiated any action as provided in the Customs Act.
21. So far as the charge of participation in criminal conspiracy
with the accused no.3 Ankit Changani is concerned, learned
advocate Mr.Trivedi has submitted that it is the case of the
prosecution that the accused no.3 Ankit Changani had sent a
request letter dated 27.10.2015 to the present appellants for the
export of a container of brass electrical parts on 28.10.2015. The
container bearing no.BLJU2350372 was stuffed on 28.10.2015
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with cement bricks packed in 724 cartons instead of the brass
electrical parts, as declared by the exporter, by submitting false
export documents (ARE-I). It is further alleged by the
prosecution that the present appellants had participated in the
criminal conspiracy with the accused no.3 Ankit Changani and
had signed the factory stuffing examination and sealing of export
goods report (Exh.106) without even visiting the premises of the
accused no.3, where the container was stuffed. It is also alleged
that they had also provided the uniquely numbered one time
official bottle seal bearing no.023163 of the Customs and Central
Excise Department, Rajkot, without even physically examining
the goods, which is mandatory as per the rules and regulations
of the department. Learned advocate Mr.Trivedi has submitted in
this regard that at the time of alleged stuffing of the container,
both the appellants, who were working as Superintendent and
Inspector, respectively, were heavily burdened with
administrative work and since M/s.Amardeep Exports,
Jamnagar, was the regular exporter, they did not visit the factory
premises of the accused no.3 at the time of stuffing of the
container, and instead, they had signed the examination and
sealing report in good faith, therefore, they had no opportunity to
witness the stuffing process. Since they had signed the
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examination and sealing report in good faith as an
administrative function, it would be improper to allege that both
the appellants had hatched a criminal conspiracy along with the
accused no.3 Ankit Changani and had deliberately certified the
false examination report as well as other alleged export
documents.
22. Learned advocate Mr.Trivedi, while drawing attention of
this Court to the Circulars No.F.224/37/2005-CX-6 dated
24.12.2008 and No.952/13/2011-CX dated 08.09.2011 issued
by the Central Board of Excise & Customs, Ministry of Finance,
Department of Revenue, Government of India, has submitted
that even otherwise, as per the said circulars, the appellants
were not required to physically remain present and participate in
the container stuffing process in each and every case.
23. While pointing out to the Circular No.F.224/37/2005-CX6
dated 24.12.2008, wherein the function and responsibility of the
Range Officer (Superintendent) and Sector Officer (Inspector) has
been specified, it is submitted that, as provided in the Circular,
while examining and sealing the export consignment, a uniquely
numbered one time official bottle seal of the Customs and
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Central Excise Department was required. It is submitted that
there was confusion amongst both the appellants. The appellant-
accused no.1 Roop Narayan Meena (Superintendent), was under
an impression that the appellant-accused no.2 Rahul Chhabra
(Inspector), might have gone to the factory premises of the
accused no.3 Ankit Changani to carry out the physical
examination and sealing of the container, whereas, the
appellant-accused Rahul Chhabra was under an impression that
the appellant-accused Roop Narayan Meena might have gone to
the factory premises of the accused no.3 to carry out the
physical examination and sealing of the container. In support of
his argument, Mr.Trivedi has referred to the CDR details
(Exhibits 299 and 300) and has submitted that it reflects from
the said CDR that on 28.10.2015 between 02:01 and 05:01, the
accused no.1 Roop Narayan Meena (Superintendent) was not
available in the office. It is further submitted that considering
the aforesaid, at the most, it can be deduced from the case of the
prosecution that the appellants were negligent in examining and
verifying the export goods at the time of stuffing the container
and in preparing Annexure-C1 examination report, for which the
departmental proceedings have already been initiated against
both the appellants and the same are still pending, and in the
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mean time, both of them have been placed under suspension.
However, under no stretch of imagination, it can be deduced that
the appellants had done the alleged acts with criminal intent
and, therefore, it cannot be said that the appellants had
participated in the so-called conspiracy to cheat the Government
and the Public Exchequer by abusing their position and had
given undue advantage to the accused no.3 Ankit Changani. In
this regard, it is further submitted that although the trial court
has admitted in evidence and has also exhibited the statement of
the accused no.3 recorded by the DRI, yet it has erroneously not
considered the fact that the main accused Ankit Changani, in
his statement, has specifically admitted that the appellants had
not visited the premises during the stuffing of the goods other
than the declared goods in the container, and the only reason for
doing so, as stated by the accused no.3, is that he was facing
financial crunch and wanted to recover the loss made by him in
the business. He, even, has specifically stated in his statement
that he had not paid any illegal gratification to any of the
officers.
24. Learned advocate Mr.Trivedi has further submitted that
the prosecution has not led any direct or indirect evidence which
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can connect the appellants with the alleged offence of
conspiracy. It is submitted in this regard that the prosecution
has only alleged that there was telephonic conversation between
the appellants and the accused no.3 Ankit Changani, however,
except the CDR, no evidence has been produced in this regard.
Neither any call transcript nor any other direct evidence has
been produced by the prosecution. It is submitted that the trial
court has not considered the evidence regarding the CDR in its
proper perspective. Moreover, the prosecution has failed to
establish the aspect of meeting of minds of the appellants and
other co-accused for the commission of the offence as alleged. It
is further submitted that as per the case of the prosecution, the
container was seized by the DRI and the DRI had carried out the
entire investigation regarding the same and thereafter the case
was handled by the CBI, who has not carried out any
independent investigation. It is submitted that the DRI officials
are not authorized to draw any panchnama and, therefore,
reliance cannot be placed on such evidence.
25. Lastly, it is submitted that considering the evidence on
record in its entirety, it clearly appears that the ingredients of
offences punishable under Sections 420 and 120B of the Indian
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Penal Code are not attracted and the same are not proved
beyond reasonable doubt by the prosecution by leading cogent
and convincing evidence. In this regard, learned advocate
Mr.Trivedi has implored the court to allow the appeal, set-aside
the impugned judgment and direct the acquittal of the
appellants from the charges levelled against them. In support of
his contentions, learned advocate Mr.Trivedi has relied upon the
following case-laws :
I. With reference to Section 420 of the Indian Penal
Code, Mr.Trivedi has relied upon the following judgments :
Anil Kumar Bose vs. State of Bihar (1974) 4 SCC 616
And
Raghunath Prasad vs. State of Bihar
Bishan Das vs. State of Punjab and (2014) 15 SCC 242
Another
SVL Murthy vs. State Represented by CBI, (2009) 6 SCC 77
Hyderabad
N. Raghavender vs. State of Andhra (2021) 18 SCC 70
Pradesh, CBI
Harmanpreet Singh Ahluwalia & Others (2009) 7 SCC 712
vs. State of Punjab & Others
Vijay Kumar Ghai & Others (S) vs. State (2022) 7 SCC 124
of West Bengal and Others (S)
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II. With reference to Section 120B of the Indian Penal
Code, Mr.Trivedi has relied upon the following judgments :
K.R. Purushothaman vs. State of Kerala (2005) 12 SCC 631
Ramesh Bhai & Another vs. State of (2009) 12 SCC 603
Rajasthan
C. Chenga Reddy & Others vs. State of (1996) 10 SCC 193
A.P.
Ram Sharan Chaturvedi vs. State of (2022) 16 SCC 166
Madhya Pradesh
Praveen @ Sonu vs. State of Haryana 2021 SCC OnLine SC
Maghavendra Pratap Singh alias Pankaj 2023 SCC OnLine SC
Singh vs. State of Chhattisgarh 486
Ranjitsing Brahmajeetsing Sharma vs. (2005) 5 SCC 294
State of Maharashtra & Another
Tarseem Kumar vs. Delhi Administration 1994 Supp (3) SCC
Nandu Singh vs. State of Madhya 2022 SCC OnLine SC
Pradesh (Now Chhatisgarh) 1454
Saju vs. State of Kerala 2000 SCC OnLine SC
Rameshchandra Bhogilal Patel vs. State 2010 SCC OnLine
of Gujarat & Anr. Guj 13837
III. With reference to 'good faith', Mr.Trivedi has relied
upon the following judgments :
State of Gujarat vs. Paresh Nathalal 2024 SCC OnLine SC
General Officer Commanding Rashtriya 2012 SCC OnLine SC
Rifles vs. Central Bureau of Investigation 390
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SUBMISSIONS ON BEHALF OF RESPONDENT NO.1-CBI :
26. Vehemently opposing the present appeal and the
submissions advanced by learned advocate Mr.Trivedi for the
appellants-convicts, learned Special Public Prosecutor
Mr.R.C.Kodekar appearing for the respondent no.1 - Central
Bureau of Investigation has submitted that the conviction and
sentence imposed by the trial court do not call for any
interference by this Court since the trial court, after appreciating
the evidence; both, ocular as well as documentary, has convicted
the present appellants for the charges levelled against them.
Mr.Kodekar has submitted that the prosecution has proved all
the essential elements of the alleged offence, through cogent and
convincing evidence.
27. While referring to the charge at Exh.11, learned Special
Public Prosecutor Mr.Kodekar has submitted that it is the case
of the prosecution that the main accused (i.e. the original
accused no.3 - Ankit Changani), in collusion with the present
appellants (i.e. the original accused nos.1 and 2 - Roop Narayan
Meena and Rahul Chhabra, respectively), had hatched a criminal
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conspiracy to cheat the Government and the Public Exchequer
by way of submitting false export related documents, which were
intentionally endorsed by the present appellants, thereby
obtaining duty benefits on raw-materials as per the ARE-I
amounting to Rs.23,30,270=00.
28. Learned Special Public Prosecutor Mr.Kodekar has
submitted that M/s.Amardeep Exports is a partnership firm, i.e.
a hundred percentage Export Oriented Unit (EOU), engaged in
the business of importing duty-free raw-materials of brass scrap
with an obligation to export hundred percentage of the product
made out of such duty-free raw-materials, therefore, it is called a
hundred percentage EOU. The firm was working through its
partner Ankit Changani (i.e. the original accused no.3).
29. It is submitted that the original accused no.3 Ankit
Changani had sent a request letter to the appellants-accused on
27.10.2015 for export of one consignment by declaring the goods
as brass electrical parts valued at Rs.1.08 crores. The said
consignment was to be exported to M/s.Secure Link, LC, Dubai
(UAE), through the container bearing no.BLJU2350372, which
was stuffed on 28.10.2015 with 724 cartons. Both the present
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appellants had endorsed all the false documents submitted by
the accused no.3 Ankit Changani and prepared a false
examination report to show that they had supervised and
examined the stuffing of the container as per the examination
report Exh.106 under their seal & signatures and had also
certified that the container is stuffed in their presence and it
contained brass electrical parts. It is also certified that they had
sealed the container with a uniquely numbered one time official
bottle seal of the Customs and Central Excise Department after
the stuffing so that it may not further be examined and checked
by the Customs Officer on duty at the port. It is submitted that
on 29.10.2015, the firm had also filed a shipping bill bearing
no.3814591 (Exh.111) before the Customs Department with a
description that brass electrical parts are stuffed in the
container.
30. It is submitted that on 15.11.2015, on the basis of the
secret input, the DRI officials called back the said container from
the high-sea, which was landed at Mundra Port, with the same
seal intact. By following due process, the container was opened
and examined by the DRI, and on examination, it was found that
the entire container was stuffed with cement bricks packed in
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724 cartons instead of brass electrical parts, as declared by the
exporter, and as per Annexure-C1 examination report prepared
by the present appellants, which caused a wrongful loss to the
Government and the Public Exchequer to the tune of
Rs.23,30,270=00 and corresponding wrongful gain to
M/s.Amardeep Exports.
31. Further, it is submitted by the learned Special Public
Prosecutor Mr.Kodekar that on 29.02.2016, at the time of
conducting physical verification of the factory premises of the
original accused no.3 Ankit Changani, a deficit of 38.539 MTs of
imported brass raw-materials was found, and during the
investigation, it was revealed that the accused no.3 had diverted
the same into Domestic Tariff Area (DTA), which is strictly barred
by the rules, which caused loss of duty to the Government and
the Public Exchequer to the tune of Rs.70,25,618=00. It is
submitted that M/s.Amardeep Exports had filed a shipping bill
(Exh.111) with a description that brass electrical parts are
stuffed in the container. However, after calling it back from the
high-sea, the DRI opened the container after following due
process, and upon examination, it was found that instead of
brass electrical parts, as declared in the shipping bill, the
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container was stuffed with cement bricks. Since it was a
deliberate false declaration by the accused no.3, the DRI seized
the said goods as per Section 10 of the Customs Act.
32. It is submitted that the prosecution has proved these facts
through the deposition of (PW-8) Surendrasinh Natwarsinh
Gohil, Superintendent of Customs, who was discharging his duty
at the time of the incident as Senior Intelligence Officer in the
office of the DRI, Gandhidham. He, in his evidence, has
categorically stated that upon receiving the secret input, they
had called back the container from the high-sea, which was in
transit to Dubai, and accordingly, instructed the shipping line.
The container was landed at the Mundra Port, and on the same
day, it was opened by following due process, and upon
examination, 724 cartons were found stuffed with cement bricks
instead of brass electrical parts and, therefore, he had issued
summons to the proprietor of M/s.Amardeep Exports. It is
submitted that during the cross-examination of the witness, the
said fact has not been rebutted. Thus, the prosecution has
convincingly established the case.
33. Learned Special Public Prosecutor Mr.Kodekar, while
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referring to the evidence of the PW-9 Munesh Rajender Singh,
who was discharging his duties as Senior Intelligence Officer,
DRI, has submitted that this witness, in his evidence, has stated
that during the investigation, it was found that M/s.Amardeep
Exports, under the guise of brass electrical parts, had, in fact,
exported cement bricks. He has stated that in the ARE-I return
filed by M/s.Amardeep Exports, a stock of 130-140 MTs of brass
scrap was declared as the closing balance. However, during the
verification, a deficit of 61.237 MTs of brass scrap was found in
the stock. He has also deposed that the accused no.3 Ankit
Changani, in his statement dated 09.03.2016 recorded under
Section 108 of the Customs Act by the DRI, has admitted that
both the present appellants had not examined and verified the
export goods at the time of stuffing the container and even the
uniquely numbered one time official bottle seal of the Customs
and Central Excise Department was brought by Shri Hitesh
Sharma, a representative of the accused no.3 Ankit Changani,
from the office of the present appellants.
34. It is submitted that this fact is in corroboration with the
statement of the appellant-accused no.2 Rahul Chhabra
recorded by the DRI under Section 108 of the Customs Act,
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wherein, he has admitted that at the time of stuffing the
container, he was busy with some other office work, and one
Shri Hitesh Sharma, a representative of the accused no.3 Ankit
Changani, had submitted the documents in respect of the export
consignment, and on instructions of the appellant-accused no.1
Roop Narayan Meena, he had signed and endorsed all the export
documents in good faith since the said firm was the regular
exporter. The appellant-accused no.2 Rahul Chhabra has also
admitted in the statement that the uniquely numbered one time
official bottle seal of the Customs and Central Excise
Department was handed over by him to Shri Hitesh Sharma.
35. Mr.Kodekar, learned Special Public Prosecutor has
submitted that during the cross-examination of this witness,
nothing fruitful was surfaced, which would falsify or rebut this
fact.
36. While referring to the evidence of (PW-22) Shri
Zakirhussain Noormohmmad, Additional Director, GST,
Intelligence, Ahmedabad, who was examined at Exh.325, it is
submitted that it clearly reveals from his evidence that on
29.02.2016 and 01.03.2016, two panchnamas were drawn by
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Shri Biju Mathew, Senior Intelligence Officer, DRI, at Plot No.414
of M/s.Amardeep Exports regarding the stock of raw-materials in
the godown and the same was found weighing 16,267 kgs. and
44,917 kgs., respectively, instead of 130-140 MTs, as declared
by them in the statement. Thus, a deficit of 61.237 MTs of
imported brass raw-materials was noticed. It is submitted that
during the cross-examination of this witness, the said fact has
not been disputed and no question was put in rebuttal.
37. Learned Special Public Prosecutor Mr.Kodekar, in this
regard, has submitted that the trial court has rightly appreciated
the aforesaid evidence while arriving at the conclusion that the
appellants were connected with the accused no.3 Ankit
Changani in hatching a criminal conspiracy to cheat the
Government Exchequer and the Public Exchequer by way of
submitting false export related documents which were endorsed
by the present appellants, thereby obtaining duty benefits on
raw-materials.
38. It is submitted that as per the rules, the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department was supposed to be kept strictly in
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the custody of the officers of the Central Excise Department and
it cannot be moved without the permission and authority of the
said officers. In the case on hand, upon instructions of the
appellant-accused no.1 Roop Narayan Meena, the appellant-
accused no.2 Rahul Chhabra had handed over this official seal
to Shri Hitesh Sharma, a representative of the accused no.3
Ankit Changani, without even examining the goods in the
container, which is suggestive of the expressed consent and
involvement of both the present appellants in the commission of
the alleged offence.
39. Learned Special Public Prosecutor Mr.Kodekar has also
drawn the attention of this Court to the fact that the CBI has
also filed a separate case under the provisions of the Corruption
Act against the present appellant-accused no.1 Roop Narayan
Meena and his wife, inter alia, alleging possession of
disproportionate property, which was found 85.12% more than
his known sources of income. It is submitted that after the
investigation, even charge-sheet was filed before the Special
Court against the accused no.1 Roop Narayan Meena and his
wife and the same is subjudiced in a Special Court vide Special
Case No.07 of 2017.
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40. Mr.Kodekar has also referred to the evidence of (PW-1) Shri
Rakesh Kumar Sharma, Chief Commissioner, Central Excise,
GST & Customs, Bhuvaneshwar Zone, who accorded sanction by
issuing separate orders for sanction vide Exhibits 27 and 28
respectively.
41. Mr.Kodekar has referred to the evidence of (PW-6) Shri
Hareshbhai Pachanbhai Maheshwari, Assistant Manager in
M/s.Saurashtra Infra & Power Private Limited, Mundra
(renamed as M/s.Saurashtra Freight Private Limited), who, in
his evidence, has deposed that the container was sealed with two
seals, and the DRI, after destuffing the container, found 724
cartons containing cement bricks.
42. Learned Special Public Prosecutor Mr.Kodekar, while
referring to the evidence of (PW-7) Shri Rakesh Ishwar Ganveer,
who is a panch-witness and who was working as an Assistant
Manager (Operations) in M/s.Twenty Cubes Logistics,
Gandhidham, has submitted that this witness, in his evidence,
has clearly stated that he had also verified from all the sides of
the container and it was found intact. Thereafter, the container
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was opened and destuffed. This witness has also stated that all
the cartons were containing cement bricks.
43. Mr.Kodekar has also referred to the evidence of (PW-8) Shri
Surendrasinh Natwarsinh Gohil, Superintendent of Customs and
Central Excise, and has submitted that this witness, in his
evidence at Exh.95 has specifically deposed that in the shipping
bill filed by M/s.Amardeep Exports, the goods were declared as
brass electrical parts, but after calling back the container from
the high-sea, when it was opened and destuffed by following due
process, the goods were found to be cement bricks, which clearly
suggests that the exporter had committed the offence of mis-
declaration and fraud, therefore, the goods were seized as per
the provisions of Section 10 of the Customs Act.
44. Mr.Kodekar has referred to the evidence of (PW-9) Shri
Munesh Singh Rajender Singh, who, in his evidence at Exh.126
has deposed that the DRI has registered a case of fraudulent
export against M/s.Amardeep Exports, and during his
investigation, he had recorded the statements of all the three
accused under Section 108 of the Customs Act. He has
specifically stated that the accused no.3, in his statement, has
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admitted that he had diverted the imported raw-materials of
metal scrap in the local market and, therefore, the quantity was
found deficit in the stock. He has also stated that the appellant-
accused no.2 Rahul Chhabra has admitted in his statement that
at the time of stuffing the container, he was busy with some
other office work and has also admitted that he had handed over
the uniquely numbered one time official bottle seal of the
Customs and Central Excise Department to Shri Hitesh Sharma,
a representative of the accused no.3 Ankit Changani. He has
also deposed that the appellant-accused no.1 Roop Narayan
Meena, in his statement recorded under Section 108 of the
Customs Act, has admitted that he had not visited the factory
premises of the accused no.3 Ankit Changani at the time of
stuffing the container, and without examining or verifying the
goods stuffed in the container, he had signed all the export
documents in good faith since M/s.Amardeep Exports was the
regular exporter.
45. Mr.Kodekar, while referring to the evidence of (PW-18) Shri
Vishalbhai Chhaganlal Ghamsani, Operation Head in the Axis
Bank, has submitted that this witness, in his evidence, has
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stated that the mobile no.9909722707 was registered in the
name of the accused no.1 Roop Narayan Meena and the mobile
no.9998812840 was registered in the name of the accused no.2
Rahul Chhabra. He has also identified the KYC documents
submitted by both the present appellants-accused.
46. Mr.Kodekar has also referred to the evidence of the
Investigating Officer (PW-23) Anilkumar Dabas and has
submitted that this witness, in his evidence at Exh.333, has
specifically deposed that during the investigation, it was found
that both the present appellants-accused were posted at
Jamnagar and were discharging their duties as the public
servants. However, by taking disadvantage of their position, they
had participated in the criminal conspiracy hatched by the
accused no.3 Ankit Changani.
47. Learned Special Public Prosecutor Mr.Kodekar, while
referring to the evidence of all other witnesses, has submitted
that the prosecution, through the evidence of all the witnesses
and through the documentary evidence, has proved the
involvement of both the present appellants-accused in the
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alleged offence. It is, therefore, submitted that since the
prosecution has proved its case beyond reasonable doubt by
leading cogent and convincing evidence, interference by this
Court is not warranted. It is submitted that considering the
evidence on record in its entirety, there remains no doubt about
the involvement and the mens rea of both the appellants-
accused in the alleged offence and, therefore, according to
Mr.Kodekar, learned Special Public Prosecutor, no fault can be
said to have been committed by the trial court in appreciating
the evidence and in arriving at the conclusion.
48. Learned Special Public Prosecutor Mr.Kodekar, while
referring to the judgments in the cases of State of Tamil Nadu,
through Superintendent of Police, CBI/SIT vs. Nalini and
others, reported in (1999) 5 SCC 253; State (NCT of Delhi) vs.
Navjot Sandhu @ Afsan Guru, reported in (2005) 11 SCC 600;
and Yakub Abdul Razak Memon vs. The State of
Maharashtra, through CBI, Bombay, reported in AIR 2015
(Supp) SC 2309, has submitted that it is made clear by the
Supreme Court in the aforesaid judgments that criminal
conspiracy is the intention to commit a crime and joining hands
with persons having the same intention. It is also held that
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generally conspiracy is hatched in private or in secrecy. It is
rarely possible to establish a conspiracy by direct evidence.
Generally, both the existence of the conspiracy and its object
have to be inferred from the circumstances and the conduct of
the accused. It is submitted that in the instant case, the
prosecution has established the entire chain of circumstances,
which is clearly suggestive of meeting of minds amongst the
accused and their involvement in the alleged offence of cheating
with a common intention of evasion of duty by causing wrongful
loss to the Government and the Public Exchequer and
corresponding gain to the accused no.3 Ankit Changani. Learned
Special Public Prosecution Mr.Kodekar has also submitted that
the CDR at Exhibits 299 and 300 clearly indicates that prior to
the commission of the offence, all the accused were closely
connected with each other, which clearly establishes meeting of
minds. Further, the act of both the appellants-accused herein of
endorsing the false export documents and of providing a
uniquely numbered one time official bottle seal of the Customs
and Central Excise Department to Shri Hitesh Sharma, a
representative of the accused no.3 Ankit Changani, without even
visiting the factory premises at the time of stuffing the export
goods in the container is suggestive of not only the meeting of
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minds but also their active participation in the alleged offence.
Mr.Kodekar has, therefore, submitted that the trial court, after
appreciating the entire evidence; both, ocular as well as
documentary, has rightly held the appellants guilty for the
offence punishable under Section 420 read with Section 120B of
the Indian Penal Code. Thus, it is urged that the conviction and
sentence recorded by the trial court do not warrant interference
by this Court and the appeals may be dismissed.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.2-STATE:
49. Vehemently opposing the present appeals and the
submissions advanced by learned advocate Mr.D.K.Trivedi for
the appellants-convicts, learned APP Ms.Shruti Pathak
appearing for the respondent no.2 - State has submitted that the
appeals are not required to be entertained since the trial court
has, after precisely appreciating the evidence; both, oral as well
as documentary, convicted the appellants-accused for the
alleged offence.
ANALYSIS AND FINDINGS :
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50. Before adverting to the facts and circumstances of the
case, it would be apt to refer to the following case-laws, wherein
the Supreme Court has set-out the powers of the appellate
court :
(i) In Jogi and others vs. State of M.P., reported in
(2021) 4 CriCC 524, it has been held by the Supreme Court
that while exercising appellate jurisdiction, the High Court
is required to evaluate the evidence on record
independently and to arrive at its own findings as regards
the culpability or otherwise of the accused on the basis of
the evidentiary materials.
(ii) In Padam Singh vs. State of Uttar Pradesh,
reported in AIR 2000 SC 361 = (2000) 1 SCC 621, it has
been held by the Supreme Court that it is the duty of the
appellate court to look into the evidence adduced in the
case and arrive at an independent conclusion as to
whether the said evidence can be relied upon or not, and
even if it can be relied upon, then whether the prosecution
can be said to have been proved beyond reasonable doubt
on the said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference from
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proved and admitted facts. It must be remembered that the
appellate court like the trial court has to be satisfied
affirmatively that the prosecution case is substantially true
and guilt of the accused has been proved beyond all
reasonable doubt as the presumption of innocence with
which the accused starts, continues right through until he
is held guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal nor
weakened by a conviction in the trial court. The judicial
approach in dealing with the case where an accused is
charged of murder under Section 302 has to be cautions,
circumspect and careful and the High Court, therefore, has
to consider the matter carefully and examine all relevant
and material circumstances, before upholding conviction.
(iii) In Amar Sardar vs. State of West Bengal, reported
in 2024 INSC 1040, it has been held by the Supreme Court
that while hearing the appeals under Section 374(2) of the
Code of Criminal Procedure, 1973, the High Court is
exercising its appellate jurisdiction. There shall be
independent application of mind in deciding the criminal
appeal against conviction. It is the duty of an appellate
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court to independently evaluate the evidence presented and
determine whether such evidence is credible. Even if the
evidence is deemed reliable, the High Court must further
assess whether the prosecution has established its case
beyond reasonable doubt. The High Court though being an
appellate Court is akin to a trial court, must be convinced
beyond all reasonable doubt that the prosecution's case is
substantially true and that the guilt of the accused has
been conclusively proven while considering an appeal
against a conviction.
The necessity of this exercise arises from the fact that a
conviction curtails the personal liberty of the accused in
the incessant future. Hence, the High Court must provide
clear reasons for accepting the evidence on record. Mere
concurrence with the findings of the trial court is
insufficient unless supported by a well-reasoned
independent justification. As the first appellate court, the
High Court is expected to evaluate the evidence including
the medical evidence, statement of the victim, statements
of the witnesses and the defence's version with due care.
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51. Bearing in mind the aforesaid settled legal position, the
evidence of the present case are required to be appreciated. The
evidence led by the prosecution in this regard can be
summarised as under :
(1) Shri Chhaganbhai Ravjibhai Tarpara (PW-2), who is a
Power of Attorney holder of the proprietor firm M/s.Shiv Wooden
Works, in his evidence at Exh.45, has deposed that the firm had
provided corrugated boxes to the accused no.3 Ankit Changani,
a partner of M/s.Amardeep Exports, as per his order. He has
also produced documents regarding the said transaction as well
as the bills dated 20.10.2015 and 30.10.2015.
(2) Shri Dipesh Anantrai Rajgor (PW-4), Branch Manager,
Ms.Trishul Transport Company, in his evidence at Exh.65, has
deposed that his company is engaged in the business of
supplying containers to the exporters at their factories,
warehouses or godowns. He has deposed that as per the order of
the exporter, they procure empty containers and provide it to the
exporter, and when it is loaded by the exporter after due process
when the Customs Department approves it as ready for export,
then the driver carry the container to the port in a transport
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vehicle. He has further deposed that on 27.10.2015, his
company had supplied container to M/s.Amardeep Exports, in a
vehicle bearing no.GJ-12-AU-9111, and after the goods were
stuffed, it was brought back at the port on 29.10.2015. He has
produced the necessary documents and invoices vide Exh.67.
(3) Shri Dharmarao Kilayaa Budda (PW-5), in his evidence at
Exh.73, has deposed that he is working as a Branch Manager in
M/s.Velji Dosabhai & Sons Private Limited Company at Mundra.
He has deposed that his company functions as a Customs House
Agent (CHA) and the primary responsibility of the company is to
prepare export documents and facilitating customs clearance. He
has further deposed that M/s.Amardeep Exports, Jamnagar,
which is engaged in the business of brass electrical parts, is one
of their clients. In October 2015, he had received a call from the
original accused no.3 Ankit Changani requesting for 20 feet
container for export in Dubai. Therefore, he had approached
M/s.Shreyas Relay Systems Limited, Mundra (whose freight
tariff was accepted by M/s.Amardeep Exports), and for
transportation of the container, he had contacted M/s.Trishul
Transport Company, who coordinated with M/s.Shreyas Relay
Systems Limited for container's delivery. Subsequently, the
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container was handed over to M/s.Trishul Transport Company,
who transported it to M/s.Amardeep Exports using a trailer.
After the goods were stuffed in the container, it was brought
back to Mundra Port. The stuffing process was carried out under
the supervision of the officers of the Central Excise Department
and the central excise seal was duly affixed on the container. He
has deposed that after all the documents were duly endorsed,
the container was transported from the factory premises to the
Mundra Port. This witness has described the standard procedure
followed during such export. According to him, when a container
is stuffed at the factory premises, the exporter is required to
prepare certain documents including the export invoice,
Annexure-C1 examination report, ARE-I form and the export
declaration. As the Customs House Agent, once they receive a
container with accompanying documents, they verify the
authentication and clearance by the Central Excise authorities,
and upon successful verification, they permit the container to
proceed to port. Subsequently, they prepare the shipping bill,
which is reviewed and approved by the Customs officer. Once the
verification is completed, the goods are deemed to be ready for
export and the concerned Customs officer has to allow the
export.
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(3.1) This witness has further deposed that in the instant case,
they received the consignment for export of brass electrical parts
from M/s.Amardeep Exports and all the procedures were
followed as per the rules and regulations. He has specifically
stated that M/s.Amardeep Exports was operating under a
hundred percentage export oriented unit scheme. He has further
deposed that in November 2015, he was contacted by (PW-8)
Surendrasinh Natvarsinh Gohil, an officer of the Directorate of
Revenue Intelligence, who informed him that the container
belonging to M/s.Amardeep Exports has been recalled. The
officer had instructed him that once the container would arrive
at the Saurashtra Containers Freight Station (CFS), Mundra, he
would be intimated by a telephonic message and then he must
come to the site along with two witnesses. In compliance of the
above instructions, he, along with two witnesses, namely, Shri
Kirit Patanwadiya and Shri Rakesh Ganveer (PW-7), reached at
the CFS, verified the number of the container, checked it from all
the sides and found the seal to be intact. Thereafter, as per the
instructions of (PW-8) Shri Surendrasinh Natvarsinh Gohil, the
seals were broke open using a cutter and it were placed in a
plastic envelope. Further, the container was examined by the
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DRI officials in his presence as well as in presence of the
witnesses. The container was found having 724 cartons, and in
their presence, when the said cartons were opened, it was found
that each carton contained 10 cement bricks. The DRI officials
collected the samples from one of the cartons. He has further
deposed that he had provided all the relevant documents to the
DRI. A panchnama in this regard was also drawn in their
presence. He has identified the seized muddamal. During his
cross-examination, he has elicited that the documents he had
referred to in his chief examination were not the original
documents but the certified copies.
(4) Shri Hareshbhai Pachanbhai Maheshwari (PW-6) is an
Assistant Manager working in M/s.Saurashtra Infra & Power
Private Limited, Mundra (renamed as M/s.Saurashtra Freight
Private Limited). The said firm is engaged in the business of
providing manpower and equipment for the purpose of stuffing
and destuffing of goods. In his evidence at Exh.80, he has
deposed that in November 2015, they had received an email from
M/s.Shreyas Relay Systems Limited, Mundra, instructing them
to receive one container. The CFS is a custodial area where the
stuffing and destuffing of goods are carried out in presence of the
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customers. They were again instructed through email not to
move the container from the port. Subsequently, on 16.11.2015,
they had received a call from Shri Surendrasinh Natvarsinh
Gohil (PW-8), a DRI officer, regarding movement of a container to
the Saurashtra Containers Freight Station (CFS). Following the
instructions, they had arranged for a trailer and brought the
container from the Port to the CFS. The container was placed in
the open yard, and under the instructions of the DRI officer Shri
Gohil, in presence of the representative from the Customs House
Agent and two independent witnesses, the container was
examined and it was sealed with two seals, one affixed by
M/s.Shreyas Relay Systems Limited, and another, by the Central
Excise Department. As per the directions of the DRI officer Shri
Gohil, they broke open the seals with a cutter. After the seals
were cut and the container was opened, the container was
destuffed by the labourers. On opening the container, 724 boxes
were found in it, which were opened in presence of all the
aforesaid witnesses. It was found that the said boxes contained
cement bricks. Out of the said boxes, four bricks were collected
as sample. A panchnama in this regard was drawn and he was
instructed to keep the cargo in safe custody. This witness has
produced various relevant documents viz. receipt memo, gate-
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out-slip, gate-in-slip, weight-slip of the container, email
correspondences and also the panchnamas vide Exhibits 82 to
86. In the aforesaid documents, the number of the container and
the number of the trailer in which the container was transported
have been clearly mentioned.
(5) Shri Rakesh Ishwar Ganveer (PW-7), who was working as
an Assistant Manager (Operations) during the year 2015-2016 in
M/s.Twenty Cubes Logistics, Gandhidham, has been examined
by the prosecution at Exh.91. This witness is a panch-witness,
in whose presence the container in question was examined by
the DRI officer after it was called back from the high-sea on the
basis of the secret inputs. He, in his evidence, has testified that
on 16.11.2015, Shri Dharmarao Kilayaa Budda from M/s.Velji
Dosabhai company had called him to inspect the container, as a
witness. The DRI officer Shri Gohil had instructed him to verify
that the container has been sealed from all the sides. In his
presence, Shri Hareshbhai Pachanbhai Maheshwari (PW-6) from
M/s.Saurashtra Infra & Power Pvt. Ltd., Mundra (CFS), was
instructed by the DRI officer Shri Gohil to arrange for the
labourers to destuff the cargo and to facilitate cutting of the
seals of the container. He has further deposed that the Surveyor
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from M/s.Bipin Marine Service was also present to conduct the
survey of the container. The witness has stated that he had
personally checked and verified that the container was sealed
from all the sides. The videography of the entire process was
done by a videographer. He further deposed that the seal was cut
by the labourers in his presence as well as in presence of the
other witnesses. The container was then opened and the cartons
in it were checked one by one. He has deposed that in each of
the cartons, two small packets of cement bricks were found. The
witness affirmed his signature on the panchnama and also
affirmed that the panch Shri Kiritbhai had also signed the
panchnama in his presence. He has also affirmed his signature
as well as the signature of the second panch on the weight-slip
Exh.77. He has also identified his signature and the signature of
the second panch on various relevant documents. He has further
stated that four bricks were collected from different cartons as
sample. Upon being shown the muddamal article no.3, he
affirmed that it was the same brick that was taken as sample in
his presence. During the cross-examination, this witness has
elicited that neither he nor the second panch Shri Kiritbhai was
a public servant. He has further stated that he is sure that the
photographs were taken at that time.
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(6) The prosecution has also examined Shri Surendrasinh
Natvarsinh Gohil (PW-8), a Senior Intelligence Officer of the DRI,
Gandhidham. He, in his evidence at Exh.95, has deposed that in
the year 2015 he was working as Senior Intelligence Officer at
the Directorate of Revenue Intelligence at Gandhidham. During
his tenure, his responsibilities included uncovering and
investigating cases of smuggling, customs duty evasion and
misuse of exemption notifications. He has further deposed that
he had received a secret inputs about M/s.Amardeep Exports (a
hundred percentage export oriented unit) allegedly exporting
goods other than the declared goods. Upon investigation, it was
found that M/s.Amardeep Exports had shipped one container
for export to Dubai, which was not yet delivered to the intended
buyer M/s.Secure Link General Trading, LC, Dubai (UAE).
Therefore, the container was called back. The container was
subsequently arrived at the Mundra Port and was transported to
the Saurashtra Container Freight Station (CFS) on 16.11.2015.
Thereafter, he, along with his senior (PW-21) Shri Nimbaram
Sonaram Devasi, Deputy Director, DRI, had visited the CFS and
instructed Shri Dharmarao Kilayaa Budda, the Customs House
Agent for M/s.Amardeep Exports, to remain present at the CFS.
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In addition, two panch-witnesses were also directed to remain
present and they all had arrived at the CFS entry point at
around 5:45 p.m., and after the introduction of Shri Dharmarao
Kilayaa Budda and the panch-witnesses, the security personnel
were instructed to call a responsible person Shri Hareshbhai
Maheshwari, Assistant Manager (Operations). Upon being
questioned by them, Shri Maheshwari responded that the
container would be arriving. He then instructed the CHA Shri
Dharmarao to submit the following documents :
(1) Shipping bill checklist;
(2) Bill of Lading;
(3) Invoice;
(4) Packing list;
(5) Annexure-C-1 (i.e. Central Excise Examination
Report);
(6) Customs copy of the shipping bill;
(7) Exporter declaration form.
(6.1) This witness has produced the certified copies of all the
aforesaid documents vide Exhibits 106 to 111. He has further
deposed that thereafter he had instructed the panch-witnesses
to inspect the container from all the sides and to check and
verify the seals. Upon examination, it was confirmed that the
container was intact from all the sides and the seals were not
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tampered with. Subsequently, both the seals were cut and
removed and thereafter the container was destuffed with the
help of labourers. Upon destuffing the container, in all, 724
boxes each containing 2 brown colour boxes were found from the
container, and inside each brown colour box, 5 small boxes each
containing 3 cement bricks were found. Out of the these, 4
samples were collected in presence of the panchas and other
witnesses and were sent for the laboratory analysis.
(6.2) The witness further stated that according to the shipping
bill filed by M/s.Amardeep Exports, the declared goods were
brass electrical parts, however, upon inspection, cement bricks
were found from the container instead. This constitute a mis-
declaration of the goods which amounts to fraud. As a result, the
goods were liable to be confiscated by the department under
Section 10 of the Customs Act, and accordingly, the goods were
seized and the witness Shri Hareshbhai Maheshwari was
instructed to keep it in the safe custody. He has stated that the
entire process concluded at 11:15 p.m. and the panchnama in
this regard was drawn accordingly. He obtained the signatures of
the panchas, Shri Dharmarao Budda from the CHA and Shri
Hareshbhai Maheshwari on the panchnama Exh.86 and the
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copies of the panchnama were provided to Shri Hareshbhai
Maheshwari and Shri Dharmarao Budda from the CHA. He had
also confirmed his signature on the panchnama and identified
the signatures of other witnesses and the panchas.
(6.3) The witness further deposed that he had issued summons
to the original accused no.3 Ankit Changani of M/s.Amardeep
Exports and recorded his statement under Section 108 of the
Customs Act. In the statement, the accused no.3 Ankit Changani
had disclosed that due to financial crunch his property had been
mortgaged to the bank, as a result, he had committed the fraud.
This witness has further stated that he himself had recorded the
statement of the accused no.3 Ankit Changani. The statement
seems to have been exhibited by the trial court vide Exh.120. It
reveals from the cross-examination of this witness that he had
not produced the negative of the photographs and the
videography was conducted by the office camera only and not by
the professional cameraman.
(7) The prosecution has also examined Shri Munesh Singh
Rajender Singh (PW-9), a Senior Intelligence Officer of the DRI,
who had investigated the case registered by the DRI against
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M/s.Amardeep Exports. He, in his evidence at Exh.126, has
testified that he had joined the Customs Department in the year
2005 and was deputed to the DRI in the year 2012. He has
stated that he took over the investigation of the case registered
by the DRI against M/s.Amardeep Exports, which was initially
investigated by the Senior Intelligence Officer Shri Surendrasinh
Gohil and supervised by the Deputy Director Shri Nimbaram
Sonaram Devasi. Upon Shri Gohil's transfer in June 2016, he
had assumed the charge of the investigation. He has further
testified that the case involved fraudulent export activities.
Although the shipping bills submitted by M/s.Amardeep Exports
had claimed the export of brass electrical parts, yet the DRI's
verification revealed that cement bricks were shipped instead. He
had recorded the statements of various individuals under
Section 108 of the Customs Act. It was established that
M/s.Amardeep Exports had exported cement bricks instead of
the brass electrical parts, as declared.
(7.1) This witness has further stated that according to ARE-II
return filed by M/s.Amardeep Exports for October 2015, the
company had reported a closing balance of 99 MTs of mixed
metal brass scrap. However, during the stock verification
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panchnama carried out in the months of February-March 2016,
the same was found 61 MTs only. He has stated that the
accused no.3 Ankit Changani had admitted that the deficit
quantity was diverted into the local market. This witness has
identified the original accused no.3 Ankit Changani and has
stated that the accused no.3 Ankit Changani had admitted to
have exported cement bricks instead of brass electrical parts and
confirmed that the stuffing took place at his factory. He also
stated that both the appellants-accused were present at the
factory premises during the stuffing. He has also stated that the
bottle seal for the consignment was brought by one Shri Hitesh
Sharma from the Central Excise office which was provided to
him by the appellant-accused no.2 Inspector Rahul Chhabra.
(7.2) The witness has further deposed that during the
investigation, he had recorded the statement of the appellant-
accused no.2 Inspector Rahul Chhabra under Section 108 of the
Customs Act, wherein the accused no.2 Rahul Chhabra had
admitted that since he was occupied with other work, he had
signed the export documents in good faith on the instructions of
the appellant-accused no.1 Roop Narayan Meena, without
personally visiting the factory premises during the stuffing of the
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container. He has also admitted to have handed over the official
bottle seal to Shri Hitesh Sharma. The witness has produced the
statements of the accused no.3 Ankit Changani (Exhibits 127,
128 and 129); the accused no.2 Rahul Chhabra (Exh.130); Shri
Hitesh Sharma (Exh.131) and Shri Jaysukh Ranparia (Exh.132)
recorded by him under Section 108 of the Customs Act. The
witness has admitted that Shri Anilkumar Dabas, Inspector,
CBI, had also recorded his statement during the investigation of
this case by the CBI.
(7.3) During the cross-examination, he has elicited that neither
he had interrogated the accused no.1 Roop Narayan Meena nor
recorded his statement. He claimed that he was investigating the
case since January 2016. He has also elicited that during his
investigation, he did not visit the factory premises of
M/s.Amardeep Exports. He has specifically stated that the seal-
movement register must be maintained by the department.
(8) Shri Shankarbhai Jashabhai Bokha (PW-10), in his
evidence at Exh.154, has deposed that in the year 2016, he was
working as Superintendent and Incharge Administrative Officer
in the Central Excise Department, Jamnagar Division, and that
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the CBI had recorded his statement in relation to the present
case and he had provided the relevant documents with regard to
the posting, resumption of duty, suspension, etc. of both the
present appellants-accused.
(9) Shri Mohanlal Dhukalram (PW-11), in his evidence at
Exh.165, has explained the departmental procedure in relation
to the hundred percentage export oriented unit.
(10) Shri S.Ramesh Shrinivas Raghvan (PW-13), in his evidence
at Exh.180, has identified the signatures of both the appellants-
accused on all the relevant documents submitted by
M/s.Amardeep Exports, viz. ARE-I document list, shipping bills,
invoice, Annexure C-1 examination report, etc. (Exh.167
collectively).
(11) Shri Vishalbhai Chhaganlal Ghamsani (PW-18), a nodal
officer with Vodafone India Limited, in his evidence at Exh.263,
has provided the details regarding the mobile phone
no.9909722707 of the accused no.1 Roop Narayan Meena and
the mobile phone no.9998812840 of the accused no.2 Rahul
Chhabra.
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(12) Shri Nimbaram Sonaram Devasi (PW-21), the then Deputy
Director, Directorate of Revenue Intelligence, Gandhidham, in
his evidence at Exh.315, has testified that he was serving as
Deputy Director, DRI, Gandhidham, from April 2015 to June
2017. He has stated that the CBI had requested for certain
documents relating to a case registered against M/s.Amardeep
Exports, which was investigated by the DRI. The DRI, during the
investigation, had seized certain documents and drawn various
panchnamas, which he had handed over to the CBI. He had
identified the Panchnama drawn by the Senior Intelligence
Officer Shri Munesh Singh (Exh.317) and had also confirmed the
signature of Shri Munesh Singh on it. Further, he had identified
the signature of Shri Munesh Singh on another panchnama
Exh.318 relating to a factory search. The witness was shown the
statement of the accused no.1 Roop Narayan Meena (Exh.319)
recorded under Section 108 of the Customs Act, wherein the
accused no.1 has stated that he had endorsed and signed the
consignment believing it to have been properly checked by the
Inspector. In his cross-examination, this witness has elicited
that he was having no personal knowledge regarding the
panchnama and the file (Exh.321). He has also elicited that in
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the show-cause notice issued by the department, the present
appellants-accused nos.1 and 2 were not mentioned as the
accused. He denied the suggestion that the goods in the
container exported by M/s.Amardeep Exports to Dubai were
returned and no loss was caused to the Government during the
proceedings.
(13) Shri Babulal Ugajibhai Rathod (PW-20), Bank Officer, was
examined as a panch-witness. He, in his evidence at Exh.313,
has testified that on 10.02.2016, he had accompanied the CBI
officer to Plot Nos.414 and 417 in the GIDC, owned by
M/s.Amardeep Exports. Upon arrival at the factory, it was found
locked, therefore, a person named Shri Hirenbhai was called by
the CBI, who had opened the lock of the factory. The officials
then carried out the search, seized certain documents and
prepared a search list, which he had signed. These documents
are admitted in the evidence and have been exhibited at Exh.314
collectively.
(14) Shri Zakirhussain Noormohmmad (PW-22), Additional
Director, GST, Intelligence, Ahmedabad, was examined at
Exh.325. He, in his evidence, has stated that he was serving as
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Deputy Director, DRI, Jamnagar, from 2012 to 2016. He has
testified that he had received the information from the DRI,
Gandhinagar, regarding a case against the accused no.3 Ankit
Changani, a partner of M/s.Amardeep Exports. He had recorded
the statement of the accused no.3 Ankit Changani under Section
108 of the Customs Act and identified his signature on the
statement (Exh.326). He has also confirmed the contents of the
panchnama at Exhibits 317 and 318, both prepared in his
presence. He has specifically stated that during the inspection of
M/s.Amardeep Exports at Plot No.414, a deficit of raw-materials
was noticed. In his cross-examination, he has stated that the
department had issued notifications under the Customs Act
allowing the DRI officers to conduct the verification or
supervision of the physical stock of the export oriented units. He
has elicited that M/s.Amardeep Exports is a partnership firm
with Ankit Changani and Shri Dinesh Changani as the partners
of the firm, and that the panchnamas Exhibits 317 and 318 do
not bear the signature of either of the partners. When asked by
the defence as to under which legal provision the panchnama of
Plot No.414 was carried out, he had stated that it was carried
out by the DRI, Jamnagar, under Section 105 of the Customs
Act. In response to the defence counsel's reference to the
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Supreme Court judgment in the case of Canon India Pvt.
Limited vs. Union of India, which held that the DRI officers
lacked the authority to conduct such actions, the witness
clarified that following the judgment, the Parliament has
amended the law and the DRI officers now have the powers of
Customs officers.
(15) The Investigating Officer Shri Anilkumar Dabas (PW-23),
Deputy Superintendent of Police, CBI, in his evidence at
Exh.333, has testified that based upon reliable information, the
CBI, ACB, Gandhinagar, had registered a case RC1(A/216)
against Roop Narayan Meena, the then Superintendent, Central
Excise AR-II Range, Jamnagar, and others. The FIR filed by the
then DIG & HOB, CBI, Gandhinagar, is produced at Exh.334.
The witness has stated that the investigation of the said case
was entrusted to him. He, in his evidence, has further testified
that M/s.Amardeep Exports, a partnership firm with Ankit
Changani and Shri Dinesh Changani as the partners, is an
export oriented unit. He has testified that on 28.10.2015, the
accused no.1 Roop Narayan Meena and the accused no.2 Rahul
Chhabra, both the officers of the Central Excise Department had
falsely certified the supervision and examination of the
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consignment (i.e. the factory stuffing examination and sealing of
export goods report) with their official seals & signatures. He has
further testified that it was revealed that M/s.Amardeep Exports
had filed a shipping bill no.3814591 dated 29.10.2015 declaring
the goods as brass electrical parts with a Free on Board valued
at Rs.1.08 crore. The container no.BLJU2350372 was destined
for M/s.Secure Link General Trading, LC, Dubai (UAE). He has
testified further that based upon the specific intelligence, the
DRI had recalled the container for inspection, and upon
examination, it was discovered that it was entirely stuffed with
cement bricks instead of brass electrical parts, as declared. The
total financial loss caused to the Government was assessed at
Rs.70,25,618=00. This witness has produced various
documentary evidence collected during the investigation and
identified his signature on them. He further testified that during
his investigation, it was established that the accused no.1 Roop
Narayan Meena and the accused no.2 Rahul Chhabra, while
serving in their official capacity as public servants, had
conspired with the accused no.3 Ankit Changani, a partner of
M/s.Amardeep Exports, and as a part of the conspiracy, they
had falsely certified the ARE-I document & invoice and had
stuffed the container for export with cement bricks instead of
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brass electrical parts, as declared. However, in reality, there was
no such examination or supervision at the time of factory
stuffing of the goods in the container and the same was, in fact,
loaded with cement bricks. This fraudulent work was carried out
to evade the applicable export duty and to divert the imported
metal scrap into the domestic market. Consequently, they
defrauded the Government by causing a wrongful loss to the
tune of Rs.70,25,618=00. During his cross-examination, he has
elicited that he had neither prepared nor collected any
panchnama during his investigation. However, he has clarified
that he had obtained certified copies of the panchnamas, since
the originals were kept by the DRI for their investigation. He has
also elicited that he had not collected any photograph, soft-copy
of the panchnamas or inquire about their hash value. He further
acknowledged that he had not arrested any of the accused
persons. He has also elicited that (PW-13) S.Ramesh Shrinivas
Raghvan, Superintendent, CGST, had not produced any
notification during the investigation. He further elicited that
during his investigation, he had neither inspected any container
or site nor had he visited the office of both the appellants-
accused. He has also elicited that no adverse antecedents were
found against the present appellants-accused during the
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investigation.
(16) Shri Ashish Shashikant Joshi (PW-24), who was examined
by the prosecution vide Exh.339, has deposed that in the year
2016, he was serving as Joint Secretary, Gandhidham Chamber
of Commerce and Industries. He has stated that upon request
from the CBI, he had submitted the certificate of origin and the
related documents (Exh.340). He has further confirmed that the
Chamber had the authority to issue such certificate and that
M/s.Velji Dosabhai & Sons Private Limited Company at Mundra
(a Customs House Agent) had applied for the certificate of origin
on behalf of M/s.Amardeep Exports, Jamnagar. In his cross-
examination, he has elicited that the CBI had not recorded his
statement and his testimony was based solely upon the
documents.
52. The prosecution has also produced on record various
statements of the appellant-accused no.3 Ankit Changani, Shri
Hitesh Sharma, Shri Jaysukh Ranparia and both the present
appellants-accused recorded by the Intelligence Officer of the
DRI during their investigation under Section 108 of the Customs
Act, 1962. Section 108 of the Customs Act reads as under :
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"108. Power to summon persons to give evidence and
produce documents.--(1) Any Gazetted Officer of Customs
[* * *] [The words "duly empowered by the Central
Government in this behalf," omitted by Act 18 of 2008,
Section 69 (w.r.e.f. 13.7.2006).] shall have power to summon
any person whose attendance he considers necessary either
to give evidence or to produce a document or any other thing
in any inquiry which such officer is making under this Act.
(2) A summons to produce documents or other things may be
for the production of certain specified documents or things or
for the production of all documents or things of a certain
description in the possession or under the control of the
person summoned.
(3) All persons so summoned shall be bound to attend either
in person or by an authorised agent, as such officer may
direct; and all persons so summoned shall be bound to state
the truth upon any subject, respecting which they are
examined or make statements and produce such documents
and other things as may be required:Provided that the
exemption under section 132 of the Code of Civil Procedure,
1908 (5 of 1908), shall be applicable to any requisition for
attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a
judicial proceeding within the meaning of section 193 and
section 228 of the Indian Penal Code (45 of 1860)."
(Emphasis supplied)
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53. Since the inquiry under Section 108 of the Customs Act is
considered to be a judicial proceeding, all the statements
recorded by the DRI officers during the investigation had been
taken on record by the trial court. The details of which are as
under :
SR. NAME DATE EXHIBIT
NO.
54. In the statement dated 26.11.2015 recorded by the DRI
officers, the accused no.3 Ankit Changani has stated that due to
his poor financial condition and the loss incurred in the
business, he had exported cement bricks instead of brass
electrical parts, as declared. He has explained that his house
and the factory were mortgaged to the bank and he was trying to
maintain a positive net foreign exchange (NFE). He has also
stated that the cement bricks were purchased for Rs.24,500=00
through a broker stand at Bedi Gate in Jamnagar. He has stated
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that he had purchased three tractors and cartons/boxes from
M/s.Shiv Wooden Packing situated at GIDC, Phase-II, Dared. He
has also asserted that he had booked the container
no.BLJU2350372 through the Customs House Agent M/s.Velji
Dosabhai & Sons Private Limited Company. He has also
confirmed that the transporter engaged for the movement of the
container was M/s.Trishul Transport Company. He has stated
that, in all, 724 cartons were stuffed in the container
no.BLJU2350372. It is noteworthy that, in his statement
recorded under Section 108 of the Customs Act on 26.11.2015
(Exh.120), the accused no.3 Ankit Changani has stated that on
28.10.2015, at the time of stuffing the goods into the container,
both the appellants-accused were present at the factory
premises. He has also stated that both the officers had opened
and examined around 40 to 50 boxes, and thereafter, the boxes
were stuffed into the container, and when the officer had left, he
had removed around 35 to 40 cartons and replaced them with
boxes packed with cement bricks. However, in his statement
dated 09.03.2016 recorded by the DRI officials under Section
108 of the Customs Act (Exh.129), he changed the entire
version. At the time of recording of this statement, he was
questioned about his earlier statements dated 26.11.2015,
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19.02.2016 and 22.02.2016, wherein he had stated that the
Central Excise officers were present at his factory during the
examination and stuffing of the goods into the container on
28.10.2015, but both the officers, in their respective statements,
have stated that they had not visited the factory premises on
that day. In response to this, he had specifically admitted that
his previous statements were false, and further stated that, in
fact, no Central Excise officer had come to examine the export
goods or supervise the stuffing of the export container on
28.10.2015. He had also stated that he had made false
statements to save his skin.
55. He has also specifically admitted that there was no stock of
brass ingots and all the packets stuffed into the container
bearing no.BLJU2350372 on 28.10.2015 were containing only
the cement bricks. He has further admitted that 4.370 MTs of
brass electrical parts were clandestinely removed in October
2015 in small lots of 100-200 kilograms. In the same manner,
mixed metal brass scrap was also removed. However, he doesn't
remember to whom this quantity of 4.370 MTs of brass electrical
parts was sold.
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56. The prosecution has also produced the statement of Shri
Hitesh Sharma, Accountant of M/s.Amardeep Exports, recorded
by the DRI under Section 108 of the Customs Act at Exh.131.
He, in his statement, has stated that he was responsible for
preparing all official correspondences and the export/import
documents for M/s.Amardeep Exports, Jamnagar, including re-
warehousing certificates, ARE-I forms, export invoices,
Annexure-C1 examination report, packing lists, etc. Regarding
the export consignment dated 28.10.2015, which was later on
recalled by the DRI, he has stated that he was called by the
accused no.3 Ankit Changani to his office on the evening of
stuffing of the container. He has stated that he had prepared all
the necessary export documents, and upon the instructions of
the accused no.3 Ankit Changani, he went to the Central Excise
Range Office to obtain the signatures of the Inspector and the
Superintendent (i.e. both the present appellants-accused) on the
export documents. He has further stated that the documents
were first signed by the Inspector, i.e. the present appellant-
accused no.2 Rahul Chhabra, and then by the Superintendent,
i.e. the present appellant-accused no.1 Roop Narayan Meena. He
has also stated that he had not inquired, as to whether the
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officers would visit the factory premises for examination or not ?
But, the accused no.3 Ankit Changani had instructed him to ask
for the bottle seal of the Central Excise Department, and upon
asking for the same, the Inspector, i.e. the appellant-accused
no.2 Rahul Chhabra, had provided him a uniquely numbered
one time official bottle seal of the Customs and Central Excise
Department. He has stated that no comments or queries were
raised by either of the officers regarding the export consignment.
Thereafter, he had returned to the office and handed over the
signed documents and the uniquely numbered one time official
bottle seal of the Customs and Central Excise Department to the
accused no.3 Ankit Changani. He has further stated that he
could not recall as to whether the container was present at that
time or not ? He has also stated that it was for the first time that
he had personally collected the uniquely numbered one time
official bottle seal from the Central Excise office.
57. The prosecution has also placed on record the statement of
the appellant-accused no.2 Inspector Rahul Chhabra recorded
by the DRI under Section 108 of the Customs Act on 01.03.2016
at Exh.130. In the statement, he has stated that during his
posting in AR-II Range, Jamnagar, he was responsible for the
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range duties which included preparing reports, verifying and
signing ARE-I and ARE-III documents, maintaining records,
scrutinizing rebate files and submitting required reports to the
higher authorities. He has further stated that he was also
required to attend the export container stuffing and import
examination, whenever directed by the Superintendent, along
with other assigned tasks. Regarding the procedure to be
followed about the stuffing of goods for export by a hundred
percentage export oriented unit, he has stated that the exporter
was required to inform the Superintendent atleast 24 hours in
advance, and depending upon the office workload, either the
Superintendent alone or along with the officer would visit the
factory premises for examination and supervision of the stuffing
of the export goods. So far as the consignment in question is
concerned, it was stated that on 28.10.2015 at around 12:30
p.m., he was informed by the Superintendent (i.e. the present
appellant-accused no.1) about the scheduled stuffing of the
export goods of M/s.Amardeep Exports, Jamnagar, and at that
time, he was busy in preparing some reports and scrutinizing
the rebate files. Thereafter, at around 5:30 p.m., a representative
of M/s.Amardeep Exports Shri Hitesh Sharma had arrived with
the necessary export documents, invoices-cum-examination
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report, packing lists and ARE-I statement. He, in his statement,
has further specifically stated that since he was busy and
occupied, and upon the instructions of the Superintendent Roop
Narayan Meena, he had signed all the export documents in good
faith without even visiting the factory premises at the time of
stuffing of the export goods. He has also confirmed that he had
not examined or supervised the stuffing of the export goods and
was unaware about what the Superintendent had done.
However, he remembered that the Superintendent was present
in the office when the export documents were brought. He has
further stated that as per the direction of the Superintendent
Roop Narayan Meena, he had handed over the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department to the exporter's representative Shri
Hitesh Sharma. He has further stated that all such seals were
green in colour embossed with "Central Excise, Rajkot", but he
did not remember the exact serial number on the seal. It is
stated that the bottle seals are securely kept in the office with
keys kept by both the officers. It is stated that the officer
performing the examination and supervision of the stuffing of the
export goods would carry the seal and affix it on the container
after completion of the stuffing process. He has also stated that
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he was unaware about the nature of the goods until he saw the
documents, which mentioned items as the brass electrical parts.
It is stated that no prior intimation or communication was
received from the exporter regarding the consignment and he
was only informed about the stuffing by the Superintendent (i.e.
the present appellant-accused no.1 Roop Narayan Meena).
58. During the recording of his statement by the DRI under
Section 108 of the Customs Act, his attention was drawn
towards the circular regarding the duties of the Inspector (Sector
Officer) and the Superintendent (Range Officer), and in response
to the query of the DRI officials as to why he did not visit the
factory premises of M/s.Amardeep Exports, examine and
supervise the factory stuffing of the export goods, he has stated
that he had joined the department on 24.02.2014, and upto the
date of stuffing in question, i.e. 28.10.2015, he was having only
01 year and 04 months of experience in the department and had
not even undergone any formal training on the subject. Based
upon his limited knowledge, he had always attended
examination and stuffing of the export goods, whenever
instructed by his superior officer, i.e. the present appellant-
accused no.1 Roop Narayan Meena.
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59. The prosecution has also produced on record the
statement of the appellant-accused no.1 Roop Narayan Meena
(i.e. the Superintendent, Customs and Central Excise, Range-II,
Jamnagar) recorded by the DRI under Section 108 of the
Customs Act at Exh.319. In his statement, he has stated that
the party intending to export the goods is required to inform the
Superintendent atleast 24 hours in advance through a letter,
email or telephonic call. After being informed about the arrival of
the container for stuffing, he is required to instruct the Inspector
to carry out the examination and supervision of the stuffing and
thereafter to seal the container. He has further stated that if the
Inspector is on leave, he is required to personally handle all
exports related tasks. However, if the Inspector is present and if
he is having no other work in the office, he is also required to
accompany the Inspector for the examination, supervision and
sealing of the export goods.
60. Regarding the export consignment in question, he has
stated that the department was informed by M/s.Amardeep
Exports, Jamnagar, on 27.10.2015, about the export scheduled
for 28.10.2015, and a letter was also submitted to the Inspector
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Rahul Chhabra (i.e. the present appellant-accused no.2). On
28.10.2015 at around 2:00 p.m., the party had again
telephonically informed regarding the examination, supervision
and sealing of the export container. Although, he was not sure
as to whether the call had come through a mobile or landline,
however, he has confirmed that he had received a call. He has
further stated that since he was occupied with the export
oriented unit norms and fixation work and since such duties
were normally attended to by the Inspector, he had not visited
the factory premises. Later on, in the evening at around 18:00
hours, Inspector Rahul Chhabra (i.e. the present appellant-
accused no.2) had produced the export documents with the
counter-signature, which he had endorsed assuming that the
inspection had been carried out. The appellant-accused no.2
Rahul Chhabra had also informed him that he had checked the
documents. When asked about whether the accused Rahul
Chhabra had been directed by him to sign the documents, he
stated that he had not asked him to do so and the accused
Rahul Chhabra himself had signed them and submitted on his
own.
61. Regarding the issue of handing over the official bottle seal
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of the Customs and Central Excise department to the
representative of M/s.Amardeep Exports, he has clarified that he
had not instructed the appellant-accused no.2 Inspector Rahul
Chhabra to give the seal to anyone. He has explained that the
bottle seals are kept in a locked cabinet in the Inspector's
chamber with keys held by both the Superintendent and the
Inspector (i.e. the present appellants-accused nos.1 and 2). It is
stated that whoever goes for examination and supervision of the
stuffing of the export goods, would take the seal with him to the
site and affix it on the container after the stuffing process is
completed. After admitting that he had signed all the export
documents and the Annexure-C1 examination report, he stated
that he had not gone to the factory premises of M/s.Amardeep
Exports on 28.10.2015 for examination and supervision of the
stuffing of the export goods. When asked about as to why he
failed to ensure that the Inspector Rahul Chhabra had not
carried out the prescribed function for the export consignment
despite being jointly responsible and having expected to
supervise the stuffing of the export goods, he responded that as
per the duty allotment under the instructions, he had deputed
Inspector Rahul Chhabra (i.e. the present appellant-accused
no.2) for the examination, supervision and sealing of the
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container. He has stated that he had acted in good faith
assuming that the Inspector Rahul Chhabra would have fulfilled
the responsibilities under his supervision.
62. After appreciating and analyzing the aforesaid evidence;
both, oral as well as documentary, it appears that it is not in
dispute, or rather an admitted fact, that during the commission
of the alleged offence, the present appellants-accused Roop
Narayan Meena and Rahul Chhabra were performing their duties
as Superintendent and Inspector, respectively, in the
Assessment Range-II of the Customs Department, Jamnagar,
and the accused no.3 Ankit Changani was working as one of the
partners in M/s.Amardeep Exports, Jamnagar (a hundred
percentage export oriented unit, engaged in the business of
importing duty-free raw-materials of mixed brass scrap with an
obligation to export its entire production made out of such duty-
free raw-materials). Therefore, it is called a hundred percentage
export oriented unit.
63. According to the prosecution, the original accused no.3
Ankit Changani, in connivance with the present appellants-
accused nos.1 and 2, hatched a criminal conspiracy, and in
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furtherance to their common object, he dishonestly and
fraudulently submitted false export documents, which were
improperly and illegally endorsed by the present appellants-
accused nos.1 and 2, disregarding the rules and regulations,
thereby showing undue favour to M/s.Amardeep Exports and
causing wrongful loss to the Government and the Public
Exchequer to the tune of Rs.23,30,270=00 and corresponding
wrongful gain to M/s.Amardeep Exports, Jamnagar.
64. Considering the specific charge against the appellants, the
Court has scaled the entire evidence on record carefully. It
appears that on 27.10.2015, the original accused no.3 Ankit
Changani had made an arrangement of a container bearing no.
BLJU2350372 through the Branch Manager Shri Dharmarao
Kilayaa Budda (PW-5) and sent a request letter dated 27.10.2015
(Exh.321 collectively) to the present appellants for the export of
the goods on 28.10.2015 which was declared as brass electrical
parts valued at Rs.1.08 crore from a hundred percentage export
oriented unit with ARE-I [Application for the Removal of
Excisable goods for export document (Exh.167 collectively)]. As
per ARE-I, the said consignment was to be exported to
M/s.Secure Link, LC Dubai (UAE) on 28.10.2015. The said
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container was stuffed with 724 cartons by submitting false
export document (ARE-I), invoice, packing list, etc. (Exh.167
collectively).
65. It is alleged by the prosecution that both the present
appellants accused, in connivance with the original accused no.3
Ankit Changani, had participated in the criminal conspiracy and
endorsed all the aforesaid false export documents and also
prepared a false factory stuffing examination and sealing of
export goods report dated 28.10.2015 with their seal &
signatures (Exh.109).
66. The Court has also carefully gone through the factory
stuffing examination and sealing of export goods report signed
by both the appellants-accused. In the aforesaid report dated
28.10.2015, after mentioning the entire details as to the invoice
number, total number of packages, name & address of the
consignee abroad, etc., it was certified that the declaration of the
goods, the quantity and their value was as per the particulars
furnished in the export invoice, and after mentioning the one
time permission number (uniquely numbered one time official
bottle seal of the Customs and Central Excise Department), it
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was endorsed that the container was verified before the stuffing
and the same was found empty. It was also endorsed that the
goods to be exported had been stuffed into the container under
the direct supervision of both the appellants-accused.
Thereafter, the Part-A Certificate of the Customs and Central
Excise Department was issued by the appellants herein with
their signatures (Exh.167 collectively), wherein it was certified
that the owner had entered into Bond Nos.03 & 13/05-06 under
Rule 19. It was further certified by both the appellants that they
had opened and examined the cargo in loose/package no.10 and
the particulars stated and description of goods mentioned
overleaf and the packing list were found correct and all the goods
were stuffed in the container no.BLJU2350372 with marks SL
Dubai 1/724 and the same was sealed by one time seal bearing
no.198635 (line), 023163 (excise). It was also certified that both
the appellants-accused had verified the records and the exporter
was only availing the export incentives as specified in box no.6
and found it to be true. It reflects from the aforesaid factory
stuffing examination and sealing of export goods report and Part-
A Certificate of the Customs and Central Excise Department
issued and signed by both the appellants-accused that the
container no.BLJU2350372 was stuffed in their presence and
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under their direct supervision and it contained brass electrical
parts. It also reflects that after examining the stuffing of the
container, they had sealed the container with the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department. It further appears from the evidence
on record that on the next day of stuffing of the container, i.e. on
29.10.2015, the firm of the accused no.3 Ankit Changani had
filed a shipping bill (Exh.111) to the Customs Department with a
description that the brass electrical parts are stuffed in the
container.
67. It is the case of the prosecution that both the appellants-
accused had intentionally endorsed all the false export related
documents without even personally visiting the factory premises
of M/s.Amardeep Exports, Jamanagar, at the time of stuffing of
the container; and without physically examining, verifying or
supervising the stuffing of the container, they had prepared a
false factory stuffing examination and sealing of export goods
report dated 28.10.2015 (Exh.109) as per ARE-I document &
invoice, which was signed and submitted by the original accused
no.3 Ankit Changani, and had also issued Part-A Certificate of
the Customs and Central Excise Department. Not only this, the
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appellants-accused, without even personally visiting the factory
premises of M/s.Amardeep Exports and without examining or
verifying the factory stuffing of the goods in the container, they
had provided a uniquely numbered one time official bottle seal of
the Customs and Central Excise Department to Shri Hitesh
Sharma, a representative of the accused no.3 Ankit Changani,
which, as per the rules and regulations, was strictly required to
be kept in the custody of the authorized officers of the Customs
Department (in the instant case, the present appellants-accused)
and was also required to be affixed only by the authorized
officers. Admittedly, the container was sealed with the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department.
68. It is noteworthy that this uniquely numbered one time
official bottle seal was mentioned in the factory stuffing
examination and sealing of export goods report (Exh.109) as well
as in the Part-A Certificate of the Customs and Central Excise
Department. It has been specifically alleged that both the
appellants-accused had done this with an assumtion that the
container would not be checked again at the port. At this
juncture, it is noteworthy that the Circular No.6/2002 -
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Customs dated 23.01.2002 issued by the Government of India
(which is produced on record at Exh.160), clearly mandates that
in case of export where the duty benefit is above Rs.1 lakh, 10
percentage of shipment shall have to be examined and checked
on random basis, and in case of factory stuffing export cargo, if
the export goods stuffed and sealed in presence of the Customs/
Central Excise officers at the factory of the manufacturer,
ICD/CFS, notified warehouses and other places where the
Commissioner has, by a special order, permitted examination of
goods for export, no examination shall be required at the port
except : (a) where the seals are found tampered with; or (b) there
is a specific intelligence in which case the permission of the
Deputy/Assistant Commissioner would be required for checking.
It is also prescribed in this Circular that in case of consignment
where the amount of drawback - DPEB is involved more than
Rs.1 lakh and the export consignment is shipped to sensitive
places viz. Dubai (in the instant case), Sanghai, Singapore,
Hongkong and Colombo, that the scale of examination is 50
percentage, and for rest of the places, it is 10 percentage. It also
prescribes the proforma of the examination report of factory seal
packages/container (i.e. Annexure-C-1). It appears that this
Circular is in consonance with the Notification No.42/2001
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dated 26.06.2001 issued under the Central Excise Rule 19
(which is produced by the prosecution at Exh.161), wherein the
procedure for removal of goods without payment of duty is
prescribed as under :
"2. Procedure:
(i) Procedure for removal without payment of duty
under this notification: - (a) After furnishing bond, a
merchant-exporter shall obtain certificates in Form CT-1
specified in Annexure-III issued by the Superintendent of
Central Excise having jurisdiction over the factory or
warehouse or approved premises or Maritime Commissioner
or such other officer as may be authorised by the Board on
this behalf and on the basis of such certificate he may
procure excisable goods without payment of duty for export
by indicating the quantity, value and duty involved therein;
(b) the exporter who has furnished bond shall ensure that
the debit in bond account does not exceed the credit
available therein at any point of time;
(c) the manufacturer-exporter may remove the goods without
payment of duty after furnishing the letter of undertaking as
specified under condition (i).
(d) such General bond or letter of undertaking shall not be
discharged unless the goods are duly exported, to the
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satisfaction of the Assistant Commissioner of Central Excise
or the Deputy Commissioner of Central Excise or Maritime
Commissioner or such other officer as may be authorised by
the Board on this behalf within the time allowed for such
export or are otherwise accounted for to the satisfaction of
such officer, or until the full duty due upon any deficiency of
goods, not accounted so, and interest, if any, has been paid.
(ii) Sealing of goods and examination at place of
despatch. - (a) For the sealing of goods intended for export
at the place of despatch, the exporter shall present the
goods along with four copies of application in the Form
A.R.E.-1 specified in Annexure-IV to the Superintendent or
Inspector of Central Excise who will verify the identity of
goods mentioned in the application and the particulars of
the duty paid or payable, and if found in order, he shall seal
each package or the container in the manner as may be
specified by the Commissioner of Central Excise and
endorse each copy of the application in token of having such
examination done;
(b) the said Superintendent or Inspector of Central Excise
shall return the original and duplicate copies of application
to the exporter and retain the quadruplicate copy;
(c) the triplicate copy of application shall be sent to the
officer to whom bond or letter of undertaking has been
furnished, either by post or by handing over to the exporter
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in a tamper proof sealed cover after posting the particulars
in official records;
(d) the exporter may prepare quintuplicate copy of
application for claiming any other export incentive. This copy
shall be dealt in the same manner as the original copy of
application;
(e) in case of export by parcel post after the goods intended
for export has been sealed, the exporter shall affix to the
duplicate application sufficient postage stamps to cover
postal charges and shall present the documents, together
with the package to which it refers, to the postmaster at the
office of booking.
(iii) Despatch of goods by self-sealing and self-
certification. - (a) Where the exporter desires self-sealing
and self-certification for removal of goods from the factory,
warehouse or any approved premises, the owner, the
working partner, the Managing Director or the Company
Secretary, of the manufacturing unit of the goods or the
owner of warehouse or a person duly authorised by such
owner, working partner or the Board of Directors of such
Company, as the case may be, shall certify on all the copies
of the application that the goods have been sealed in his
presence, and shall send the original and duplicate copies of
the application along with the goods at the place of export,
and shall send the triplicate and quadruplicate copies of the
application to the Superintendent or Inspector of Central
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Excise having jurisdiction over the factory, warehouse, any
such approved premises within twenty four hours of
removal of the goods;
(b) the Superintendent or Inspector of Central Excise shall,
after verifying the particulars of the bond or letter of
undertaking and endorsing the correctness or otherwise, of
the particulars on the application, send to the officer to
whom the bond or letter of undertaking has been furnished
either by post or by handing over to the exporter in a tamper
proof sealed cover after recording the particulars in the
official records;
(c) The exporter may prepare quintuplicate copy of
application for claiming any other export incentive. This copy
shall be dealt in the same manner as the original copy of
application;
(d) In case of export by parcel post after the goods intended
for export has been sealed, the exporter shall affix to the
duplicate application sufficient postage stamps to cover
postal charges and shall present the documents, together
with the package to which it refers, to the postmaster at the
office of booking.
(iv) Examination of goods at the place of export. -(a)
On arrival at the place of export, the goods shall be
presented together with original, duplicate and quintuplicate
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(optional) copies of the application to the Commissioner of
Customs or other duly appointed officer;
(b) The Principal Commissioner of Customs or other duly
appointed officer shall examine the goods with the
particulars as specified in the application and if he finds
that the same are correct and exportable in accordance with
the laws for the time being in force, shall allow export
thereof and certify on the copies of the application that the
goods have been duly exported citing the shipping bill
number and date and other particulars of export:
Provided that if the Superintendent or Inspector of Central
Excise sealed packages or container at the place of
despatch, the officer of customs shall inspect the packages
or container with reference to declarations in the application
to satisfy himself about the exportability thereof and if the
seals are found intact, he shall allow export."
69. Thus, it clearly appears from the said Circulars that when
an exporter opts for self-sealing and self-certification, the
Principal Commissioner or Commissioner of Customs or their
designated officers shall examine the goods at the place of export
against the particulars provided in the application (ARE-I).
However, the proviso to this rule states that, if a Superintendent
or Inspector of the Central Excise Department seals the
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packages or container at the despatch location, the Customs
officer shall inspect the seals, packages and the container in
relation to the declaration in the application and if the seals are
found intact, the officer will permit the export.
70. As noted earlier, the original accused no.3 Ankit Changani
had opted for the factory stuffing of the export goods through a
letter dated 27.10.2015 (Exh.321) addressed to the present
appellant-accused no.1, whereby he had communicated about
his intention to export the goods on 28.10.2015, which was
declared as the brass electrical parts having a quantity of 24 MT
valued at Rs.1.08 crore from a hundred percentage export
oriented unit. He had also sent an application for removal of
excisable goods for export (ARE-I) with the invoice, packing list,
etc. (Exh.167 collectively). As per the said documents, the
consignment of the brass electrical parts was to be exported to
M/s. Secure Link, LC, Dubai (UAE). Admittedly, both the
appellants-accused had endorsed all the documents and even
had prepared the factory stuffing examination and sealing of
export goods report (Annexure-C1 at Exh.109) and issued the
Part-A Certificate of the Customs and Central Excise
Department, which read thus :
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Annexure-C1 examination report
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PART-A Certificate
71. The evidence also reveals that the accused no.3 Ankit
Changani, with an intention to cheat the Government and to
cause wrongful loss to the Public Exchequer, had hatched a
criminal conspiracy along with the present appellants-accused,
and in furtherance to the same, he had submitted entirely false
export documents and the appellants-accused, without even
personally visiting the factory premises of the accused no.3 Ankit
Changani on 28.10.2015 at the time of stuffing of the container,
had endorsed all the false export documents and had prepared a
false factory stuffing examination and sealing of export goods
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report on the basis of the said documents and issued the Part-A
Certificate as mentioned herein above, and shockingly, even
provided a uniquely numbered one time official bottle seal of the
Customs and Central Excise Department to Shri Hiteshbhai
Sharma, a representative of the accused no.3 Ankit Changani,
and the same seal was affixed on the container in question. It is
also established on record through cogent evidence that the
container in question was, in fact, stuffed with the cement bricks
in 724 cartons instead of the brass electrical parts, as declared
in the aforesaid documents. This clearly suggests their
involvement in alleged offence of conspiracy with an intention to
cheat the Government Exchequer and grab the duty benefits on
the raw-materials.
72. It appears that this has been mindfully done because all
the three accused persons were having the knowledge of the
procedure prescribed in the Circular No.6/2002 - Customs
dated 23.01.2002 issued by the Government of India (Exh.160)
that in case of factory stuffing export cargo, if the export goods
stuffed and sealed with the official seal of the Customs and
Central Excise Department in presence of the authorized officers
of the department at the factory of the manufacturer, ICD/CFS,
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notified warehouses and other places where the Commissioner
has, by a special order, permitted examination of goods for
export, no examination shall be required at the port except : (a)
where the seals are found tampered with; or (b) there is a
specific intelligence. The evidence on record clearly suggests that
since it was in knowledge of all the accused persons that as per
the procedure prescribed in the above Circular, if the
Superintendent or Inspector of the Customs and Central Excise
Department seals the packages or the container at the despatch
location, the Customs officer on duty at the port will only inspect
the seal affixed on the packages or the container and if the same
is found intact, he will permit the export. By taking disadvantage
of this loophole, the original accused no.3 Ankit Changani had
opted for the factory stuffing and submitted all the false export
documents declaring the export goods as brass electrical parts,
and the present appellants, who were admittedly performing
their duties as the Superintendent and the Inspector,
respectively, in the Assessment Range-II of the Customs and
Central Excise Department, Jamnagar, without examining,
verifying or supervising the factory stuffing of the export goods or
without even visiting the factory premises of the accused no.3,
have not only endorsed all the false export documents but also
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prepared a false factory stuffing examination and sealing of
export goods report (Annexure-C1) and issued a false Part-A
Certificate. Not only this, they have also provided a uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department to Shri Hitesh Sharma, a
representative of the accused no.3 Ankit Changani, and the
same seal was affixed on the container. It appears that since the
seal was found intact, the Customs officer on duty at the port
had allowed the export of the goods in the container to a
sensitive place, i.e. Dubai, through a vessel. It is also established
on record through cogent and convincing evidence that the
container in question was, in fact, stuffed with the cement bricks
in 724 cartons instead of the brass electrical parts, as declared
in the export documents. Therefore, the act of both the
appellants-accused (which includes the intentional omission) is
clearly suggestive of joining their hands with the accused no.3
Ankit Changani (i.e. the Director of M/s.Amardeep Exports,
Jamnagar) in the commission of alleged offence, because,
without their endorsement and signatures on the export
documents, Annexure-C1 examination report and Part-A
Certificate, and without providing the uniquely numbered one
time official bottle seal of the Customs and Central Excise
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Department, the sanction for export of the container could not
be accorded without the check by the customs officer on duty at
the port.
73. This Court has also carefully considered the oral evidence
of all the material witnesses, which have been narrated herein
above along with the documentary evidence placed on record,
which clearly establishes the entire chain of events of
commission of the alleged offence. It clearly appears from the
evidence that after the consignment was exported, the witness
(PW-8) Shri Surendrasinh Natwarsinh Gohil (Senior Intelligence
Officer of the DRI, Gandhidham) had received a secret input that
M/s.Amardeep Exports, Jamnagar (a hundred percentage export
oriented unit) is exporting goods other than the declared one,
and upon investigation, he came to know that M/s.Amardeep
Exports had shipped one container to Dubai for export, which
was not yet delivered to the intended buyer (i.e. M/s.Secure Link
General Trading, LC, Dubai (UAE). Therefore, the container was
called back from the high-sea, which was subsequently arrived
at the Mundra Port, and the same was transported to the
Saurashtra Container Freight Station on 16.11.2015. It appears
that Shri Surendrasinh Natwarsinh Gohil (PW-8) and his
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superior officer Shri Nimbaram Sonaram Devasi (PW-21) had
visited the location and instructed Shri Dharmarao Kilayaa
Budda (PW-5), who was working as the Customs House Agent for
M/s.Amardeep Exports, to remain present at the CFS along with
two panch-witnesses, namely, Shri Kirit Patanwadiya and Shri
Rakesh Ganveer (PW-7), at the CFS. Both the DRI officers had
also called PW-6 Shri Hareshbhai Pachanbhai Maheshwari,
Assistant Manager (Operations) in the CFS. Under the
instructions of both the DRI officers, the CHA of M/s.Amardeep
Exports, i.e. Shri Dharmarao Kilayaa Budda (PW-5), had
produced the shipping bill check list, bill of lading, invoices,
packing list, Annexure-C1 examination report, copy of the
shipping bill and exporter's declaration form. All these
documents have been produced vide Exhibits 106 to Exh.111. It
appears that all these witnesses along with the panch-witnesses
had then inspected the container from all the sides and also
checked & verified the seals, and upon examination, it was
confirmed that the container was intact from all the sides and
the seals on the container were not found tampered with.
Subsequently, the seals were removed with the help of a cutter
and thereafter the container was destuffed with the help of
labourers. Upon destuffing the container, in all 724 cartons were
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found inside the container, all containing the cement bricks.
Thereafter, the samples were collected and the panchnama
(Exh.86) was drawn in this regard.
74. It is noteworthy that in all the export documents,
Annexure-C1 examination report and even in the shipping bill
filed by M/s.Amardeep Exports, the goods were declared as the
brass electrical parts, however, upon examination of the
container after it was called back from the high-sea, cement
bricks were found in the container instead of the brass electrical
parts, as declared. All the aforesaid facts have been proved
through cogent evidence of Shri Surendrasinh Natwarsinh Gohil
(PW-8), Shri Nimbaram Sonaram Devasi (PW-21), Shri
Dharmarao Kilayaa Budda (PW-5) Customs House Agent for
M/s.Amardeep Exports, panch-witnesses Shri Rakesh Ganveer
(PW-7) and Shri Hareshbhai Pachanbhai Maheshwari (PW-6),
Assistant Manager (Operations) in the CFS. The same is in
corroboration with the documentary evidence at Exhibits 82 to
86 and Exhibits 106 to 111.
75. The evidence of the other witnesses, i.e. (PW-2) Shri
Chhaganbhai Ravjibhai Tarpara, who provided the corrugated
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boxes to the accused no.3 Ankit Changani, (PW-4) Shri Dipesh
Anantrai Rajgor, who had supplied the empty container to the
accused no.3 Ankit Changani on 27.10.2015 and brought it back
to the port after stuffing all the goods at the factory premises on
28.10.2015 through Ms.Trishul Transport, (PW-5) Shri
Dharmarao Kilayaa Budda, who received the container and the
accompanying documents from the accused no.3 Srhi Ankit
Changani and send it to the port by following due process, are
also in corroboration with the aforesaid evidence and the same
establishes the chain of events of export of goods in the
container in question. It is pertinent to note that the invoices
issued by M/s.Trishul Transport at Exh.67 clearly indicate that
the container no.BLJU2350372 was transported by them on
27.10.2015 to the factory premises of the accused no.3 Ankit
Changani, and after stuffing of the goods, the same was brought
back at the port. The number of the said container is also
reflected in the panchnama (Exh.86) as well as in the lorry
receipt dated 27.10.2015 and the invoice dated 30.10.2015
(Exh.67). At this juncture, it is also noteworthy that both the
appellants have also not denied the aforesaid facts.
76. Admittedly, in the present appeals, the appellants-accused
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have come out with a specific case that they had endorsed and
signed all the export documents, Annexure-C1 examination
report, which was prepared on the basis of the false export
documents, and even provided the uniquely numbered one time
official bottle seal of the Customs and Central Excise
Department to Shri Hitesh Sharma, a representative of the
accused no.3, in good faith without visiting the factory premises
of the accused no.3 at the time of stuffing the export goods in the
container on 28.10.2015, since they were occupied in other
administrative work on the day of the factory stuffing of the
export goods and M/s.Amardeep was the regular exporter.
77. The prosecution has, along with the documents at Exh.160
collectively, produced a Circular F.No.224/37/2005-CX-6 dated
24.12.2008 of the Ministry of Finance, Department of Revenue,
Government of India, whereby the duties, functions and
responsibilities of the Range Officer (Superintendent) and Sector
Officer (Inspector) pertaining to a hundred percentage export
oriented unit have been prescribed. It specifies the duties and
responsibilities not only for the examination and sealing of the
export consignment as per the rules and regulations of the
Customs and Central Excise Department but also the duties and
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responsibilities regarding the scrutiny, verification and
monitoring of the ER-I/ER-II/ER-III returns (monthly or
quarterly returns) of the production and removal of the goods
and other relevant particulars, which are to be submitted to the
Superintendent of the Customs and Central Excise, within a
prescribed period as per the statutory requirement. It generally
shows the opening and closing balance for a particular item for a
specified period. It is established that the appellants-accused
have also disregarded these instructions, since it is established
that during the investigation by the DRI, a search was carried
out at the factory premises of the accused no.3, and during the
physical verification, a deficit of 61.237 MTs of the imported raw-
materials was found, and upon further investigation, it was
revealed that the accused no.3 had diverted the imported raw-
materials of brass metal scrap into the domestic market. This
fact is established by the prosecution through the convincing
evidence of the Senior Intelligence Officer of the DRI and the
Investigating Officer (PW-9) Shri Munesh Rajender Singh and
(PW-21) Shri Nimbaram Sonaram Devasi, the then Deputy
Director, Directorate of Revenue Intelligence, Gandhidham, who
had collected various documents and panchnamas (Exhibits 317
and 318) regarding the search and physical verification at the
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factory premises of M/s.Amardeep Exports and the panch-
witness (PW-20) Shri Babulal Ugajibhai Rathod, Bank Officer.
The documentary evidence as per the list (Exh.316) and the
panchnamas at Exhibits 317 and 318 are also in corroboration
with the evidence of the aforesaid witnesses. Thus, it is clearly
established from the aforesaid evidence that the appellants-
accused had neither made any scrutiny of the monthly and
quarterly returns, i.e. ER-I, ER-II and ER-III statements, nor had
they even physically verified or monitored the opening and
closing balance of the stock of the imported raw-materials and
regarding the export of goods in the container in question
shipped on 28.10.2015. The appellants-accused had, without
even visiting the factory premises of the accused no.3, not only
endorsed and signed all the false export documents, but had
also prepared and certified the false factory stuffing examination
and sealing of export goods report Annexure-C1, and had also
issued the Certificate Part-A as well as provided the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department to Shri Hitesh Sharma, a
representative of the accused no.3, which was affixed on the
container in question, and since it was found intact, the
Customs officer on duty at the port had not checked the
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container and accorded sanction for export as per the rules and
regulations. Thus, it clearly appears from the entire evidence
that without the participation of both the appellants-accused in
the above manner, the offence of cheating the Government and
the Public Exchequer could not have been committed by the
accused no.3 Ankit Changani. This clearly establishes the
involvement of the appellants-accused in the alleged offence.
78. As mentioned herein above, the prosecution has also
produced various statements of all the three accused as well as
of Shri Hitesh Sharma and Shri Jaysukh Ranparia recorded by
the Investigating Officer of the DRI during the investigation
under Section 108 of the Customs Act.
79. Since the inquiry under Section 108 of the Customs Act is
considered as judicial proceeding, the prosecution has placed
reliance on it. It appears that all the accused, in their respective
statements, made some confession pertaining to the present
offence. It is true that Section 108(4) of the Customs Act, 1962,
provides that every such inquiry shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the
IPC, however, as per the settled legal position, the same cannot
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be the sole base to hold the appellants guilty, since the
confessional statement is a weak piece of evidence and the law
casts a duty upon the prosecution to prove the case against the
accused beyond reasonable doubt by leading cogent and
convincing evidence. In the circumstances, the statement
recorded under Section 108 of the Customs Act, at the most, can
be considered as a corroborative piece of evidence. However,
considering the evidence as discussed herein above in details,
this Court is of the considered opinion that the prosecution has,
by leading cogent and convincing evidence, proved beyond
reasonable doubt that the accused no.3 Ankit Changani, with
the help and active participation of both the appellants-accused,
had exported the container stuffed with cement bricks instead of
the brass electrical parts, as declared, and thereby caused loss
to the Government and had also diverted the stock of the
imported brass raw-materials into the domestic market, thereby
causing loss to the Public Exchequer. It, therefore, clearly
appears that the statements of both the appellants-accused and
the accused no.3 as well as the statements of Shri Hitesh
Sharma and Shri Jaysukh Ranparia recorded under Section 108
of the Customs Act are also in corroboration with the other
substantial, cogent and convincing evidence led by the
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prosecution. Considering the same, there remains no doubt
regarding the involvement of the present appellants-accused in
the alleged offence.
80. At this juncture, it would be apt to refer to the defence
taken by both the appellants through their further statement
recorded under Section 313 of the Cr.P.C. by the trial court.
81. In the statement recorded under Section 313 of the Code of
Criminal Procedure, the appellant-accused no.1 Roop Narayan
Meena has taken a defence that as per the procedure laid down
by the Central Board of Excise and Customs (Circular
F.No.224/37/2005-CX-6 dated 24.12.2008) (Exh.160), one of
the duties of a Sector Officer (Inspector) is to examine and seal
the export consignments under the Central Excise seal and to
prepare a examination report accordingly. Following the same,
he had deputed Inspector Rahul Chhabra (i.e. original appellant-
accused no.2) to visit the factory premises of M/s.Amardeep
Exports, based on their written intimation to carry out the
examination and sealing of the container of the export goods.
However, the accused no.2 Rahul Chhabra had not visited the
factory premises of M/s.Amardeep Exports and had failed to
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perform the duty assigned to him. Since he was not knowing
about this fact, he had acted in good faith and had signed the
examination report since the signature of Rahul Chhabra was
already there on it.
82. Similarly, the appellant-accused no.2 Rahul Chhabra, in
his additional submission made during his further statement
recorded under Section 313 of the Code of Criminal Procedure
vide Exh.402 has taken a specific defence that it is true that he
had not attended the stuffing of the export container of
M/s.Amardeep Exports (a hundred percentage export oriented
unit) on 28.10.2015, however, it is also true that he was neither
informed nor aware about the arrival of the container or the
stuffing schedule. It is stated that without any prior intimation
or deputation by his superior officer (i.e. the present appellant-
accused no.1 Roop Narayan Meena), he had no means to know
about the stuffing of the export goods and, therefore, he could
not remain present at the time of stuffing of the export goods in
the container in question. It is stated that the appellant-accused
no.1, though was outside the office, yet he was aware about the
stuffing of the export goods in the container. Moreover, neither
the exporter (i.e. the appellant-accused no.3 Ankit Changani) nor
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his representative Shri Hitesh Sharma had contacted him
regarding the stuffing of the container. He has specifically taken
a defence that the uniquely numbered one time official bottle
seal of the Customs and Central Excise Department was handed
over to the exporter's representative Shri Hitesh Sharma, as per
the oral instructions of the appellant-accused no.1 Roop
Narayan Meena, which, otherwise could not have been done
without the direction of the accused no.1, presuming that the
accused no.1, being out of the office for a significant time, might
have personally attended the stuffing of the container. However,
it is also on record that there was no communication between
him and the accused no.3 or his representative on the day or the
day before the stuffing of the container. He has stated that he
had acted in good faith and in the interest of the department to
complete the work with the representative who was available at
that time, which indicates that the exporter had not informed
him about the arrival or stuffing of the container. Moreover, he
has specifically taken a defence that he was unaware about the
actual goods stuffed in the container as against the declared
brass electrical parts and had signed the export documents in
good faith based on the oral instructions of the accused no.1,
presuming that he had personally supervised the stuffing of the
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container.
83. On the basis of the aforesaid stand taken by both the
appellants-accused, one of the submissions advanced by learned
advocate Mr.Trivedi is that admittedly the trial court, after
appreciating the entire evidence, has acquitted both the
appellants-accused from the charge for the offences punishable
under Sections 465 and 471 of the Indian Penal Code as well as
under Section 13(1)(d) of the Prevention of Corruption Act and
has convicted them only for the offence punishable under
Section 420 read with Section 120B of the Indian Penal Code,
since there is no evidence on record to prove that the appellants
herein had demanded any bribe from anyone or they had
obtained any undue advantage or favour from anyone and there
is no past antecedent. It is submitted that there is no evidence
on record to prove that the appellants herein have been illegally
benefited. While pointing out to the statements of the accused
no.3 Ankit Changani dated 26.11.2015, 22.02.2016 and
09.03.2016, it is submitted that it was the accused no.3 Ankit
Changani, who, due to financial crunches and with a view to
recover loss occurred in the business, had attempted illegal
export of the cement bricks instead of the brass electrical parts,
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as declared in the export documents, and both the appellants
were not aware that instead of the declared goods, the exporter
was trying to illegally export the cement bricks. It is submitted
that since both the appellants were not aware about such illegal
export and even about the clandestinely removal of the imported
brass raw-materials, no motive or mens rea can be attributed to
the present appellants-accused.
84. It is also submitted that considering the CDR produced by
the prosecution at Exh.299, it appears that on 28.10.2015, the
appellant-accused no.1 was not in the office between 2:01 p.m.
to 5:01 p.m. and the appellant-accused no.2 was not in the office
between 10:44 a.m. to 12:45 p.m. Therefore, both the officers
had believed that the other officer might have gone for the
verification of the factory stuffing of the export goods on
28.10.2015, and due to this confusion, they had signed all the
export documents in good faith since they were occupied in other
administrative work and M/s.Amardeep Exports was the regular
exporter. It is also submitted that since there is no evidence on
record to show the meeting of minds and also to prove that the
appellants have been illegally benefited, no ingredients of
conspiracy and even of cheating can be said to have been
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attracted. Therefore, the conviction under Section 420 read with
Section 120B of the Indian Penal Code cannot be justified.
85. After giving thoughtful consideration to the defence taken
by both the appellants as well as the arguments advanced by
learned advocate Mr.Trivedi and also considering the entire
evidence on record, this Court is of the opinion that the defence
taken by both the appellants-accused is not at all palatable.
Further, it appears that both the appellants-accused have
deliberately tried to shift the entire blame for the alleged offence
not only on the accused no.3 but also on each other.
86. It is the say of the appellant-accused no.1 Roop Narayan
Meena that as per the Circular No.F.224/37/2005-CX-6 dated
24.12.2008, he had deputed the appellant-accused no.2
Inspector Rahul Chhabra to visit the factory premises of the
accused no.3 Ankit Changani on 28.10.2015, based on their
written intimation to carry out the examination and stuffing of
the export goods and sealing of the export container, however, he
had not visited the factory premises and had failed to perform
the duty assigned to him. Since he was not knowing about this
fact, he had signed the Annexure-C1 examination report in good
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faith since the signature of Rahul Chhabra (appellant-accused
no.2 Inspector) was already there on it. It is noteworthy that
there is not a single piece of evidence on record to show that the
appellant-accused no.1, by any general or specific written order
or even through some sort of endorsement made on the written
intimation letter dated 27.10.2015 of M/s.Amardeep Exports,
had assigned the duty to the appellant-accused no.2 Rahul
Chhabra directing him to visit the factory premises of the
accused no.3 and to carry out the physical verification and
examination of the stuffing of the export goods into the container
on 28.10.2015, which was admittedly to be exported at the
sensitive place, i.e. Dubai (UAE). Further, there is no
endorsement on any of the documents, viz. "Inspector to visit the
factory premises of the accused no.3 and carry out the
examination and verification of the stuffing of the export goods
into the container". Further, the appellant-accused no.1, during
the inquiry of the DRI officers under Section 108 of the Customs
Act, had specifically stated that on 27.10.2015, the accused no.3
Ankit Changani had submitted a written intimation to the
appellant-accused no.2 Rahul Chhabra intending export of goods
on 28.10.2015 and the same was also conveyed on telephone at
around 12:00 hours on 28.10.2015. This, being an undisputed
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fact, can be taken into consideration. It is hard to believe that
though intimated twice that the accused no.3 is intending to
export goods at the sensitive place, i.e. Dubai, and knowing fully
well that as per the rules and regulations atleast 50% of the
goods is mandatory to be checked physically, however, he being
a responsible officer, had not issued any written order to the
accused no.2 and had also chosen not to even verify, whether or
not the accused no.2 had visited the factory premises of the
accused no.3 for the verification and examination of 50% of the
export goods at the time of stuffing.
87. Significantly, the appellant-accused no.2 has also taken
the stand that he had not attended the factory stuffing of the
container in question on 28.10.2015 because he was neither
informed nor aware about the arrival or the stuffing schedule,
however, stated that the accused no.1 was aware about it. The
defence taken by him is that he had signed all the export
documents as well as the Annexure-C1 examination report and
had also provided the uniquely numbered one time official bottle
seal of the Customs and Central Excise Department to the
representative of the accused no.3, as per the oral instructions of
the accused no.1, presuming that the accused no.1 had
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personally attended the stuffing of the container. This contention
of the appellant-accused no.2 seems to be unbelievable, since,
during the proceedings under Section 108 of the Customs Act,
the statements of both the appellants were recorded. Considering
the provisions of Section 108 of the Customs Act, the undisputed
facts can certainly be taken into consideration. It reflects from
the aforesaid evidence that a written intimation intending the
export of the goods on 28.10.2015 was sent by the accused no.3
to the office on 27.10.2015, and again on 28.10.2015 at around
14:00 hours, a telephonic intimation was given. It is the say of
the accused no.2 that presuming that the accused no.1 had
attended the factory stuffing of the export goods, he had signed
all the export documents in good faith. This clearly suggests that
he was having prior knowledge about the stuffing schedule.
Further, when the appellant-accused no.2 Inspector Rahul
Chhabra was having the knowledge that the uniquely numbered
one time official bottle seal was strictly required to be kept in
lock and key and can only be used by the authorized officer, and
that too, for the sealing of the container after due examination
and verification of the export goods at the time of the factory
stuffing, yet he had provided it to a private person, and that too,
without verifying from the accused no.1, whether he had
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attended the factory stuffing or not, cannot be believed to have
been done in good faith since he was knowing that the Customs
officer on duty at the port will verify and confirm only that the
seal applied on the container is intact and then allow the export
of the container. As specifically observed by this Court, without
the active participation on the part of the appellants in the above
manner, it could not have been possible for the accused no.3
Ankit Changani to export the goods other than the declared one
in the export documents (i.e. the cement bricks instead of the
brass electrical parts).
88. It also appears from the CDR at Exhibits 299 and 300 that
the accused no.3 Ankit Changani, accused no.1 Roop Narayan
Meena and Shri Hitesh Sharma, a representative of the accused
no.3, were in contact with each other since long, as the CDR
shows that prior to the date of the alleged offence (i.e.
28.10.2015), the accused no.3 Ankit Changani had made around
120 calls to the accused no.1 Roop Narayan Meena and the
accused no.1 had made around 125 calls to the accused no.3.
Similarly, Shri Hitesh Sharma had made 62 calls to the accused
no.1 Roop Narayan Meena and the accused no.1 had made 35
calls to him. It also shows that on the day of the factory stuffing
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of the export goods into the container, i.e. on 28.10.2015, the
accused no.1 Roop Narayan Meena had made 3 calls to the
accused no.2 Rahul Chhabra (i.e. at 9:49:37, 15:55:58 and
15:57:52 hours). Similarly, the accused no.3 Ankit Changani
had made a call to the accused no.1 Roop Narayan Meena at
15:54:32 hours. The CDR also shows that the accused no.1 had
also made a phone call to the accused no.3 at 17:25:15 hours,
and thereafter Shri Hitesh Sharma, a representative of the
accused no.3 had made a phone call to the accused no.1 at
18:09:35 hours. This timing sequence also establishes a clear
link between all the three accused persons and Shri Hitesh
Sharma on the day of the factory stuffing of the export goods into
the container on 28.10.2015. It appears that after all the
necessary conversation amongst all the four, the export
documents and the Annexure-C1 examination report were
signed by both the appellants-accused and the uniquely
numbered one time official bottle seal of the Customs and
Central Excise Department was provided to Shri Hitesh Sharma,
and that too, admittedly without even visiting the factory
premises of the accused no.3 at the time of the factory stuffing of
the export goods into the container.
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89. It is an admitted fact that the Customs officers on duty at
the port had verified the uniquely numbered one time official
bottle seal of the Customs and Central Excise Department, and
since it was found intact, they had allowed the export. As
mentioned herein above, on the basis of the secret inputs, when
the container was called back by the DRI from the high-sea and
inspected by the DRI officials in presence of the witnesses and
the panchas, the seal was found intact, and when the container
was destuffed, all the 724 cartons were found containing the
cement bricks instead of the brass electrical parts, as declared in
the export documents. Considering this clinching documentary
evidence, it becomes very hard to believe that both the
appellants-accused were unaware about the facts, and acting in
good faith, they had signed all the export documents and the
Annexure-C1 examination report as well as provided the
uniquely numbered one time official bottle seal of the Customs
and Central Excise Department to the exporter. It clearly
appears from the aforesaid evidence that the appellants have
deliberately disregarded the mandatory provisions and the rules
& regulations of the department. Further, considering the entire
evidence on record and considering the conduct of both the
appellants-accused as well as considering the call details record,
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it can be said that the prosecution has established the entire
chain of circumstances, which clearly suggests not only the
meeting of minds, motive and the mens rea but also the active
participation by intentional omission and intentional act too,
which completed the entire offence.
90. In support of his contention that no ingredients of criminal
conspiracy can be said to have been proved, learned advocate
Mr.Trivedi has relied upon the following judgments:
K.R. Purushothaman vs. State of Kerala (2005) 12 SCC 631
Ramesh Bhai & Another vs. State of (2009) 12 SCC 603
Rajasthan
C. Chenga Reddy & Others vs. State of A.P. (1996) 10 SCC 193
Ram Sharan Chaturvedi vs. State of Madhya (2022) 16 SCC 166
Pradesh
Praveen @ Sonu vs. State of Haryana 2021 SCC OnLine SC
Maghavendra Pratap Singh alias Pankaj 2023 SCC OnLine SC
Singh vs. State of Chhattisgarh 486
Ranjitsing Brahmajeetsing Sharma vs. State (2005) 5 SCC 294
of Maharashtra & Another
Tarseem Kumar vs. Delhi Administration 1994 Supp (3) SCC
Nandu Singh vs. State of Madhya Pradesh 2022 SCC OnLine SC
(Now Chhatisgarh) 1454
Saju vs. State of Kerala 2000 SCC OnLine SC
Rameshchandra Bhogilal Patel vs. State of 2010 SCC OnLine Guj
Gujarat & Anr. 13837
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91. The sum and substance of all these judgments is that since
there cannot be a direct evidence of conspiracy, the same can be
proved only through circumstantial evidence and each of the
circumstances should be proved beyond reasonable doubt and
all the circumstances must form a chain of events which must
lead to the guilt of the accused and none else.
92. The Supreme Court has very elaborately discussed the
concept of conspiracy in the case of Nalini (supra). The Supreme
Court has explained - who can be considered involved in a
conspiracy ? what the essential elements of the offence are ?
what can be the evidence to prove and on what basis the
conspiracy can be inferred ? Additionally, the Supreme Court
has outlined what essential facts the prosecution must establish
in order to prove the offence of conspiracy ? In paragraph 583 of
the judgment, the Supreme Court has summarised some of the
broad principles governing the law of conspiracy as under :
"(1) Under Sec. 120A, IPC offence of criminal conspiracy is
committed when two or more persons agree to do or cause to
be done an illegal act or legal act by illegal means. When it
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is legal act by illegal means overt act is necessary. Offence
of criminal conspiracy is exception to the general law where
intent alone does not constitute crime. It is intention to
commit crime and joining hands with persons having the
same intention. Not only the intention but there has to be
agreement to carry out the object of the intention, which is
an offence. The question for consideration in a case is did all
the accused had the intention and did they agree that the
crime be committed. It would not be enough for the offence of
conspiracy when some of the accused merely entertained a
wish, howsoever, horrendous it may be, that offence be
committed.
(2) Acts subsequent to the achieving of object of
conspiracy may tend to prove that a particular accused was
party to the conspiracy. Once the object of conspiracy has
been achieved, any subsequent act, which may be unlawful,
would not make the accused a part of the conspiracy like
giving shelter to an absconder.
(3) Conspiracy is hatched in private or in secrecy. It is
rarely possible to establish a conspiracy by direct evidence.
Usually, both the existence of the conspiracy and its objects
have to be inferred from the circumstances and the conduct
of the accused.
(4) Conspirators may, for example, be enrolled in chain A
enrolling B, B enrolling C, and so on and all will be members
of the single conspiracy if they so intend and agree, even
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though each member knows only the person who enrolled
him and the person whom he enrolls. There may be a kind
of umbrella-spoke enrolment, where a single person at the
centre doing the enrolling and all the other members being
unknown to each other, though they know that there are to
be other members. These are theories and in practice it may
be difficult to tell whether the conspiracy in a particular case
falls into which category. It may, however, even overlap. But
then there has to be present mutual interest. Persons may
be members of single conspiracy even though each is
ignorant of the identity of many others who may have
diverse role to play. It is not a part of the crime of conspiracy
that all the conspirators need to agree to play the same or
an active role.
(5) When two or more persons agree to commit a crime of
conspiracy, then regardless of making or considering any
plans for its commission, and despite the fact that no step is
taken by any such person to carry out their common
purpose, a crime is committed by each and every one who
joins in the agreement. There has thus to be two
conspirators and there may be more than that. To prove the
charge of conspiracy it is not necessary that intended crime
was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy.
(6) It is not necessary that all conspirators should agree
to the common purpose at the same time. They may join
with other conspirators at any time before the
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consummation of the intended objective, and all are equally
responsible. What part each conspirator is to play may not
be known to everyone or the fact as to when a conspirator
joined the conspiracy and when he left.
(7) A charge of conspiracy may prejudice the accused
because it is forced them into a joint trial and the Court may
consider the entire mass of evidence against every accused.
Prosecution has to produce evidence not only to show that
each of the accused has knowledge of object of conspiracy
but also of the agreement. In the charge of conspiracy Court
has to guard itself against the danger of unfairness to the
accused. Introduction of evidence against some may result
in the conviction of all, which is to be avoided. By means of
evidence in conspiracy, which is otherwise inadmissible in
the trial of any other substantive offence prosecution tries to
implicate the accused not only in the conspiracy itself but
also in the substantive crime of the alleged conspirators.
There is always difficult in tracing the precise contribution of
each member of the conspiracy but then there has to be
cogent and convincing evidence against each one of the
accused charged with the offence of conspiracy. As
observed to Judge Learned Hand that "this distinction is
important today when many prosecutors seek to sweep
within the dragnet of conspiracy all those who have been
associated in any degree whatever with the main
offenders".
(8) As stated above it is the unlawful agreement and not
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its accomplishment, which is the gist or essence of the crime
of conspiracy. Offence of criminal conspiracy is complete
even though there is no agreement as to the means by
which the purpose is to be accomplished. It is the unlawful
agreement, which is the gravamen of the crime of
conspiracy. The unlawful agreement which amounts to a
conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The
agreement need not be entered into by all the parties to it at
the same time, but may be reached by successive actions
evidencing their joining of the conspiracy.
(9) It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each conspiracy a
joint or mutual agency for the prosecution of a common plan.
Thus, if two or more persons enter into a conspiracy, any act
done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are
jointly responsible therefor. This means that everything
said, written or done by any of the conspirators in execution
or furtherance of the common purpose is deemed to have
been said, done, or written by each of them. And this joint
responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to
collateral acts incident to and growing out of the original
purpose. A conspirator is not responsible, however, for acts
done by a co-conspirator after termination of the conspiracy.
The joinder of a conspiracy by a new member does not
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create a new conspiracy nor does it change the status of the
other conspirators, and the mere fact that conspirators
individually or in groups perform different tasks to a
common end does not split up a conspiracy into several
different conspiracies.
(10) A man may join a conspiracy by word or by deed.
However, criminal responsibility for a conspiracy requires
more than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly consents to
the object of a conspiracy and goes along with other
conspirators, actually standing by while the other but the
conspiracy into effect, is guilty though he intends to take no
active part in the crime."
93. In paragraphs 654 to 665, the Supreme Court has further
observed as under :
"654. To record conviction under Sec. 120-B, it is
necessary to find the accused guilty of criminal conspiracy
as defined in Sec. 120-A of Indian Penal Code which reads
as under :
"120A. Definition of criminal conspiracy - When two or
more persons agree to do, or cause to be done - (1 an
illegal act, or (2 an act which is not illegal by illegal
means, such an agreement is designated a criminal
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conspiracy; Provided that no agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof. Explanation - It is
immaterial whether the illegal act is the ultimate object
of such agreement, or is merely incidental to that
object."
655. The ingredients of the offence of criminal conspiracy
are : (i) an agreement between two or more persons; (ii) the
agreement must relate to doing or causing to be done either
(a) an illegal act; or (b) an act which is not illegal in itself but
is done by illegal means. The proviso and the explanation
are not relevant for the present discussion.
656. Though the meeting of minds of two or more persons
for doing/or causing to be done an illegal act or an act by
illegal means is a sine qua non of the criminal conspiracy,
yet in the very nature of the offence which is shrouded with
secrecy no direct evidence of the common intention of the
conspirators can normally be produced before the court.
Having regard to the nature of the offence, such a meeting of
minds of the conspirators has to be inferred from the
circumstances proved by the prosecution, if such an
inference is possible.
657. In Sardar Sardal Singh Caveeshar vs. State of
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maharashtra [1964 2 SCR 378], Subba Rao, J. speaking for
himself and his learned colleagues, observed:
"The essence of conspiracy is, therefore, that there
should be an agreement between persons to do one or
other of the acts described in the section. The said
agreement may be proved by- direct evidence or may
be inferred from acts and conduct of the parties."
658. In Shivnarayan Laxminarayan Joshi & Ors. vs. State
of maharashtra [1980 2 SCC 465], S. Murtaza Fazal Ali, J"
speaking for a two-Judge bench, observed :
"It is manifest that a conspiracy is always hatched in
secrecy and it is impossible to adduce direct evidence
of the same. The offence can be only proved largely
from the inferences drawn from acts or illegal omission
committed by the conspirators in pursuance of a
common design which has been amply proved by the
prosecution as found as a fact by the High court."
659. In Mohammad Usman Mohammed Hussain Maniyar &
Ors. vs. State of Maharashtra, [1981 2 SCC 443], another
two-Judge bench of this court pointed out;
"For an offence under Sec. 120-B, the prosecution
need not necessarily prove that the perpetrators
expressly agreed to do and/or cause to be done the
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illegal act; the agreement may be proved by necessary
implication. In this case, the fact that the appellants
were possessing and selling explosive substances
without a valid licence for a pretty long time leads to
the inference that they agreed to do and/or caused to
be done the said illegal act, for, without such an
agreement the act could not have been done for such a
long time."
660. In State of Himachal Pradesh vs. Krishan Lal Pardhan
& Ors. [1987 2 SCC 17], Natarajan, J. observed :
"In the opinion of Special Judge every one of the
conspirators must have taken active part in the
commission of each and every one of the conspiratorial
acts and only then the offence of conspiracy will be
made out. Such a view is clearly wrong. The offence of
criminal conspiracy consists in a meeting of minds of
two or more persons for agreeing to do or causing to be
done an illegal act or an act by illegal means, and the
performance of an act in terms thereof. If pursuant to
the criminal conspiracy the conspirators commit
several offences, then all of them will be liable for the
offences even if some of them had not actively
participated in the commission of the offences."
661. In State of Maharashtra & Ors. vs. Somnath Thapa &
Ors. [1996 4 SCC 659], Hansaria, J" speaking for a three-
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Judge bench of this court after elaborate discussions of the
various judgments of this court, concluded thus:
"To establish a charge of conspiracy knowledge about
indulgence in either an Illegal act or a legal act by
illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in
question may be inferred from the knowledge itself.
This apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the
goods or service in question could not be put to any
lawful use. Finally, when the ultimate offence consists
of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long
as it is known that the collaborator would put the
goods or service to an unlawful use."
662. From a survey of cases, referred to above, the
following position emerges :
In reaching the stage of meeting of minds, two or more
persons share information about doing an illegal act or a
legal act by illegal means. This is the first stage where each
is said to have knowledge of a plan for committing an illegal
act or a legal act by illegal means. Among those sharing the
information some or all may form an intention to do an
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illegal act or a legal act by illegal means. Those who do form
the requisite intention would be parties to the agreement
and would be conspirators but those who drop out cannot
be roped in as collaborators on the basis of mere knowledge
unless they commit acts or omissions from which a guilty
common intention can be inferred. It is not necessary that all
the conspirators should participate from inception to the end
of the conspiracy; some may join the conspiracy after the
time when such intention was first entertained by any one
of them and some others may quit from the conspiracy. All of
them cannot but be treated as conspirators. Where in
pursuance of the agreement the conspirators commit
offences individually or adopt illegal means to do a legal act
which has a nexus to the object of conspiracy, all of them
will be liable for such offences even if some of them have not
actively participated in the commission of those offences.
663. The agreement, sine qua non of conspiracy, may be
proved either by direct evidence which is rarely available in
such cases or it may be inferred from utterances, writings,
acts, omissions and conduct of the parties to the conspiracy
which is usually done. In view of Sec. 10 of the Evidence Act
anything said, done or written by those who enlist their
support to the object of conspiracy and those who join later
or make their exit before completion of the object in
furtherance of their common intention will be relevant facts
to prove that each one of them can justifiably be treated as a
conspirator.
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664. Sec. 10 of the Evidence Act recognises the principle of
agency and it reads as follows:
"10. Things said or done by conspirator in reference to
common design.- Where there is reasonable ground to
believe that two or more persons have conspired
together to commit an offence or an actionable wrong,
anything said, done or written by any one of such
persons in reference to their common intention, after
the time when such intention was first entertained by
any one of them, is a relevant fact as against each of
the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person
was a party to it."
665. To apply this provision, it has to be shown that (1)
there is reasonable ground to believe that two or more
persons have conspired together; and (2) the conspiracy is to
commit an offence or an actionable wrong. If these two
requirements are satisfied then anything said, done or
written by any one of such persons after the time when such
intention was entertained by any one of them in furtherance
of their common intention, is a relevant fact against each of
the persons believed to be so conspiring as well as for the
purpose of proving the existence of conspiracy and also for
the purpose of showing that any such person is a party to
it."
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94. As discussed herein above, the prosecution has established
all the circumstances by leading cogent, convincing and
clinching evidence, which are suggestive of the motive, mens rea
and even meeting of minds of both the appellants-accused and
joining their hands with the accused no.3 in commission of the
offence of cheating by evasion of duties. All the circumstances
clearly establish that both the appellants had deliberately
disregarded the mandatory provisions of the rules & regulations
as well as the circulars of the department by intentional
omission (i.e. by not visiting the premises of the accused no.3
and not examining, verifying and supervising 50% of export
goods at the time of factory stuffing and even by not making
scrutiny and physical verification of the stock of imported raw-
materials and monitoring of ARE-I, II and III statements showing
opening and closing balance of the stock of imported raw-
materials) and by intentional act (i.e. providing the uniquely
numbered one time official bottle seal of the department to the
unauthorized person of the accused no.3, without even visiting
the premises of the accused no.3 and without examining the
goods as per the law, so that there may not be further
examination on the port and the container can be allowed for
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export), which clearly establishes their joining hands with the
accused no.3 in the commission of the offence.
95. Learned advocate Mr.Trivedi has also argued that as
observed in the impugned judgment, a clear case of cheating is
made out only against the accused no.3 Ankit Changani, a
partner of M/s.Amardeep Exports, Jamnagar, and not against
the present appellants-accused.
96. It is argued that there is no evidence on record to prove
that the appellants have been benefited either way by
committing the offence as alleged since they have not deceived
any person or even the Government dishonestly. Therefore, they
cannot be held guilty for the offence punishable under Section
420 of the Indian Penal Code. It is submitted that, at the best, it
is the case of negligence in performing the official duty, for
which, the appellants are already facing departmental
proceedings.
97. Section 420 provides for the offence of cheating and
dishonestly inducing delivery of property. The offence involves
deceiving someone to gain profit or advantage through dishonest
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means, knowing it well that it will cause unfair harm to the other
person. In the instant case, the offence of cheating is clearly
established against the accused no.3 Ankit Changani, a partner
of M/s.Amardeep Exports, Jamnagar. It is settled that to prove
the offence of cheating in inducing the delivery of property, the
following ingredients need to be proved :
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representation
he made was false.
(iii) The accused made false representation with dishonest
intention in order to deceive the person to whom it was
made (in the instant case, the Government or the Public
Exchequer).
(iv) The act where the accused induced the person to deliver
the property or to perform or to abstain from any act which
the person would have not done or had otherwise
committed.
98. The evidence on record clearly established all the aforesaid
ingredients qua the accused no.3 Ankit Changani, a partner of
M/s.Amardeep Exports. It is noteworthy that the case against
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the present appellants-accused is of joining hands in the
conspiracy hatched by the accused no.3, and in furtherance
thereto, of participation by intentional act and intentional
omission.
99. As discussed herein above, it is proved beyond reasonable
doubt that in furtherance to the conspiracy, the accused no.3
Ankit Changani had sent a written intimation on 27.10.2015
intending to export goods (i.e. brass electrical parts valued at
Rs.1.08 crore) to M/s.Secure Link, LC, Dubai (UAE), and had
submitted false export documents. Since the exporter had opted
for the factory stuffing and sealing of the export goods and since
it was to be exported at the sensitive place like Dubai, as per the
mandatory rules & regulations as well as the circulars of the
department, the officers of the Central Excise Department AR-II,
Jamnagar Range (i.e. the present appellants-accused) were duty-
bound to physically examine and verify atleast 50% of the export
goods and supervise the stuffing of the goods at the factory
premises and then to affix the uniquely numbered one time
official bottle seal of the Customs and Central Excise
Department, which suggest that the export goods was physically
examined and verified by the officers of the Central Excise
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Department and it was the same goods as declared in the export
documents. The officers were also required to prepare the
Annexure-C1 examination report of the physical examination
and verification of the export goods at the time of stuffing of the
container. If it has been done by the officers of the Central
Excise Department, then as per the prescribed procedure and
rules, the Customs Officer on duty at the port shall have to allow
the export. It is proved beyond reasonable doubt, through cogent
and convincing evidence, that knowing it well about this loophole
in the system, the accused no.3 Ankit Changani had submitted
false export documents like ARE-I forms, shipping bill check list,
bill of lading, export invoices, Annexure-C1 examination report,
packing list, exporter's declaration form, etc., declaring the
export goods to be the brass electrical parts, but, in fact, the
goods stuffed in 724 cartons to be exported in the container
bearing no.BLJU2350372 were the cement bricks. The present
appellants-accused, though were duty-bound to physically
examine and verify the export goods at the time of stuffing of the
container, had intentionally chosen not to even visit the factory
premises of the accused no.3 at the time of stuffing of the export
goods in the container, and without even visiting the factory
premises and without examining or verifying the goods
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physically, they had endorsed all the false export documents at
their office. They had also endorsed, signed and certified the
false Annexure-C1 examination report (which is to be prepared
by the officers of the Central Excise Department) and had also
certified that upon their physical verification, the goods were
found the same as declared in the export documents. Not only
this, they had also provided the uniquely numbered one time
official bottle seal of the Customs and Central Excise
Department (which is mandatory to be kept in lock and key
custody of the authorized officer only - in the instant case, both
the appellants-accused) to the unauthorized private person Shri
Hitesh Sharma, a representative of the accused no.3, and the
said seal was affixed by the accused no.3 on the container. It is
proved that the Customs Officer on duty at the port had verified
this uniquely numbered one time official bottle seal of the
Customs and Central Excise Department, and since it was found
intact, he had allowed the export and the container was exported
through a vessel to Dubai. Assuming for the moment that if the
container would have been stuffed with some illegal contraband
or arms and ammunition, then what would be the consequences
or repercussion of it on the nation ?
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100. It is also proved beyond reasonable doubt that after the
export of the container in question to Dubai, the DRI officers had
received a secret input, and on the basis of the same, the
container was recalled from the high-sea. The container was,
thereafter, inspected and examined by the DRI officers in
presence of the witnesses and panchas after following the due
procedure, and since the seal was found intact, the container
was opened and destuffed and thereafter it was discovered that
instead of the brass electrical parts, as declared and certified in
the export documents and even in the Annexure-C1 examination
report, all the 724 cartons were, in fact, stuffed with the cement
bricks. Therefore, the goods were seized and a case was
registered against M/s.Amardeep Exports, Jamnagar. It is also
established through convincing evidence, during the
investigation, that both the appellants-accused had intentionally
not made the mandatory scrutiny of the ARE-I return submitted
by the accused no.3 and had not even physically verified or
monitored the stock of the imported raw-materials and the
removal of the manufactured goods therefrom. It is also
established that by exporting the cement bricks instead of the
brass electrical parts, as declared, and by diverting the imported
raw-materials into the domestic market, the accused no.3, with
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the help and active participation of the present appellants-
accused, caused a huge loss to the Government and the Public
Exchequer to the tune of Rs.93,55,888=00 (Rs.70,25,618=00
plus Rs.23,30,270=00).
101. It is also established from the CDR (Exhibits-299 and 300)
that the accused no.1 Roop Narayan Meena, accused no.3 Ankit
Changani and Shri Hitesh Sharma were in close contact with
each other since long. It is also established that on the day of
stuffing of the export goods in the container, all the accused
persons and Shri Hitesh Sharma were in contact with each
other, and after the communication amongst them, all the export
documents along with the Annexure-C1 examination report were
signed and the appellant-accused no.2 Rahul Chhabra had
handed over the uniquely numbered one time official bottle seal
of the Customs and Central Excise Department to a private
person Shri Hitesh Sharma, a representative of the accused
no.3. This Court has, therefore, observed more than twice that
without the active participation, by intentional omission and
intentional act, on the part of the appellants-accused, it was not
at all possible for the accused no.3 to commit the offence of
cheating. This clearly proves the joining of hands by the present
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appellants-accused with the accused no.3. Therefore, in the
considered opinion of this Court, the appreciation of evidence on
record and the conclusion arrived at by the trial court cannot be
said to be unjust or improper or illegal.
102. As discussed herein above, Section 420 of the Indian Penal
Code provides for the offence of cheating and dishonestly
inducing delivery of property. 'Dishonestly' has been defined in
Section 24 of the Indian Penal Code as under :
"24. Dishonestly.--Whoever does anything with the
intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing
'dishonestly'."
103. In the instant case, as discussed herein above in details,
the evidence clearly establishes that both the appellants-accused
had joined hands with the accused no.3, who hatched the
criminal conspiracy to cheat and deceive the Government and
the Pubic Exchequer by taking disadvantage of the loophole in
the system and by exporting the goods other than the one
declared in the export documents, and they both had actively
participated in the offence by intentional omission and intention
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act, thereby facilitating the accused no.3 in committing the
entire offence. Therefore, the argument advanced by learned
advocate Mr.Trivedi that since there is no evidence on record to
suggest that both the appellants-accused have been benefited,
no offence under Section 420 read with Section 120B of the
Indian Penal Code can be said to have been committed by the
appellants-accused, would be of no avail to them since from the
conjoin reading of Sections 415 and 23 of the Indian Penal Code,
it clearly appears that the trial court has rightly convicted both
the appellants-accused for the offence under Section 420 read
with Section 120B of the Indian Penal Code. It is pertinent to
note that there cannot be a direct evidence regarding the illegal
monetary benefit.
104. In this regard, learned Special Public Prosecutor
Mr.Kodekar has vehemently submitted that the CBI has also
filed a separate case being Special Case No.07 of 2017 under the
Prevention of Corruption Act against the appellant-accused no.1
Roop Narayan Meena and his wife, inter alia, alleging possession
of disproportionate property, which was found 85.12% more
than his known sources of income. It is submitted that during
the investigation of the said case, the appellant-accused no.1
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was found having ownership of the following movable and
immovable properties :
IMMOVABLE PROPERTY
SR. PARTICULARS
NO.
01 House situated at Plot No.21B/A, Park Colony, Near
Panchvati Society, Pandit Nehru Marg, Jamnagar.
(Roop Narayan Meena)
02 Farm House at Plot No.21, Vaishali Farms situated at Survey
No.132, Village-Lakha Baval, Jamnagar.
(Smt. Rameshwari Roop Narayan Meena, Wife of Roop
Narayan Meena)
Not Intimated to the Deptt.
03 Plot No.16 situated at Revenue Survey No.131, Lakha-Baval,
Jamnagar.
(Shri Akash Roop Narayan Meena, Son of Roop Narayan
Meena)
Not Intimated to the Deptt.
04 A House situated at South Part of Plot No.264, Kusum Vihar,
Jagatpura, Jaipur.
(Smt. Rameshwari Roop Narayan Meena)
Not Intimated to the Deptt.
05 A Plot No. 214, KusumVihar, Jagatpura, Jaipur, Rajasthan.
Purchased from Shri Ram Sahay Meena, Father of
Rameshwari Meena - gifted this house to his daughter vide
Gift Deed dated 08.09.2010 during his life time.
Not Intimated to the Deptt.
VEHICLES
01 A new Skoda Laura Car (Chassis no.TMBCMC121CA150999;
Engine No.CLC0717740; Registration No.GJ-12-BF-7481) in
the name of Rakesh Manilal Barai (a close friend of
R.N.Meena) but the same is used by R.N.Meena and his family
members. Further he had only got insured the car.
Not Intimated to the Deptt.
NEUTRAL CITATION
R/CR.A/911/2024 JUDGMENT DATED: 30/06/2025
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02 A new Ford Fiesta Car Registration No.RJ-34-CA-0130 in the
name of Shri Hari Narayan Meena (father of R.N.Meena) used
by R.N.Meena. Later on, sold to Sameer Trivedi and
transferred the said car in his name. Investigation revealed
that on 04.03.2014 R.N. Meena purchased this car in the
name of his servant Mansukhbhai Badeja from Shri Sameer
Trivedi used by R.N.Meena and family members at Jaipur.
Not Intimated to the Deptt.
03 A new Honda CBR Bike registration no. RJ-20-ST-3444 in the
name of (Smt. Rameshwari Rupranarayan Meena W/o
R.N.Meena)
Not Intimated to the Deptt.
105. He has, therefore, urged that considering the same, it
cannot be said the appellants-accused have not been benefited
either-way. Also, considering the fact that the aforesaid case filed
by the CBI is still subjudiced, this Court has restrained itself
from observing or expressing any opinion in that regard.
CONCLUSION :
106. On the overall analysis of the facts and circumstances of
the case coupled with the entire evidence on record as well as
considering the provisions under Sections 420, 120B and 24 of
the Indian Penal Code, this Court is of the opinion that the
findings recorded by the trial court while convicting the
appellants-accused for the offence under Section 420 read with
NEUTRAL CITATION
R/CR.A/911/2024 JUDGMENT DATED: 30/06/2025
undefined
Section 120B of the Indian Penal Code do not suffer from any
perversity or illegality. The findings recorded by the trial court
are absolutely just and proper, and in recording the said
findings, no illegality or infirmity has been committed by the trial
court. The trial court is completely justified in convicting the
appellants-accused of the charges levelled against them.
107. In above view of the matter, this Court is in complete
agreement with the findings, ultimate conclusion and the
resultant order of conviction and sentence recorded by the trial
court, and hence, this Court finds no reason to interfere with the
same. Hence, the present appeals are hereby dismissed. Records
and proceedings be sent back to the concerned court.
(VIMAL K. VYAS, J.)
/MOINUDDIN
108. After the pronouncement of the judgment, learned
advocate Mr.Trivedi prays for six weeks' time on behalf of the
appellants-accused to surrender, so as to enable them to
approach the Supreme Court.
NEUTRAL CITATION
R/CR.A/911/2024 JUDGMENT DATED: 30/06/2025
undefined
109. The request made by learned advocate Mr.Trivedi
appearing for the appellants-accused appears to be reasonable
and is acceded to. The appellants-accused are granted six weeks'
time from today to surrender.
(VIMAL K. VYAS, J.)
/MOINUDDIN
