George Varghese vs Superintendent Of Police
2022 Latest Caselaw 10828 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF JULY, 2022

                              BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.1193 OF 2012

BETWEEN:

George Varghese,
S/o. late V.M. George,
Aged 61 years,
Residing at No.272, Duo Marvel Layout,
Ananathapura Road, Yelahanka,
Bangalore. 560 064.
                                                     ..Petitioner
(By Sri. Kiran S. Javali, Senior counsel for
Sri. Chandrashekara K., Advocate)

AND:

Superintendent of Police,
Central Bureau of Investigation,
Bellary Road,
Bangalore.
                                                  .. Respondent
(By Sri. P. Prasanna Kumar, Special Public Prosecutor)

                                     ****
       This Criminal Revision Petition is filed under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973, praying
to call for records in Special C.C.No.72/2007 on the file of XLVI
Additional City Civil and Sessions Judge and Special Judge for CBI
                                                 Crl.R.P.No.1193/2012
                                2


Cases, Bangalore, set aside order dated 09-11-2012 and discharge
the petitioner in Special C.C.No.72/2007 on the file of XLVI
Additional City Civil and Sessions Judge and Special Judge for CBI
cases, Bangalore and pass such other order or orders as deemed fit
and proper.


     This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
07-07-2022, coming on for pronouncement of orders this day, the
Court made the following:


                            ORDER

The present petitioner, who is accused No.1 in Special

C.C.No.72/2007, pending in the Court of the XLVI Additional

City Civil and Sessions Judge and Special Judge for CBI Cases,

Bangalore (CCC-47), (hereinafter for brevity referred to as

"the Special Court"), for the offences punishable under Section

120B read with Sections 420, 467, 468 and 471 of the Indian

Penal Code, 1860 (hereinafter for brevity referred to as "the

IPC") and under Section 13(2) read with Section 13(1)(d) of

the Prevention of Corruption Act, 1988, (hereinafter for brevity

referred to as "the Prevention of Corruption Act") has filed this Crl.R.P.No.1193/2012

revision petition, challenging the rejection of his application

filed under Section 227 of the Code of Criminal Procedure,

1973, (hereinafter for brevity referred to as "the Cr.P.C."), by

the Special Court, vide its order dated 09-11-2012.

2. The Police Inspector, CBI/SPE, Bangalore, filed

charge sheet against few accused persons including the

present petitioner (accused No.1) for the alleged offences

mentioned above.

3. The summary of the case of the prosecution before

the Special Court is that, the present petitioner, who is

accused No.1, was the Superintendent of Customs, EOU-IV A

Range, Department of Customs, Bangalore, from the date

05-06-2002 to the date 03-02-2003. The accused No.2 -

Sri. D.A. Ganesh was working under him as Inspector of

Customs from the date 01-01-2003. They had a duty and

responsibility to ensure the bonding of the imported raw

materials and examining the exports by 100% Export Oriented Crl.R.P.No.1193/2012

Unit coming under their Range. Accused No.4 - M/s. Amisha

International represented by Accused No.3 - Sri.D.K. Jain,

was one of the 100% Export Oriented Units coming under the

EOU-IV Range. The accused No.4 - M/s. Amisha International

used to import Raw Mulberry Silk Yarn from China at Chennai

Sea Port, without paying customs duty. As per the EOU

Scheme, this Company had to export the imported Raw

Mulberry Silk Yarn by processing the same into finished

goods, i.e. Powder Grade Silk yarn to meet the export

obligations.

The accused No.4 - M/s. Amisha International had

imported five consignments of Mulberry Raw Silk Yarn from

China during the period from the date 21-11-2002 to

09-01-2003 through its Custom House Agent - M/s. Master

Stroke Freight Forwarders Private Limited, Chennai, at

Chennai Seaport. These imports were bonded at the premises Crl.R.P.No.1193/2012

of accused No.4 and the Company has to export the same by

processing into Power Grade Silk Yarn.

That on the date 23-01-2003, the accused No.3 -

Sri. D.K. Jain - the Chief Executive Officer of accused No.4,

filed a Shipping Bill No.772/2003 along with invoice

No.A1/05/02 and packing list for export of 110 bales of

Powder Grade Silk Yarn weighing 271 kgs. valued at

`88,46,209/- kept in the container bearing No.CLHU 262095-4

of M/s. IAL Shipping Line, before accused No.1 (petitioner

herein) at his Office for inspection and sealing.

It is the allegation of the prosecution that, accused No.1,

i.e. the present petitioner, while functioning as a public

servant, in the capacity of the Superintendent of Customs,

EOU-IV Range, Department of Customs, Bangalore, during

January-2003, entered into a criminal conspiracy with accused

No.2 - the Inspector of Customs, EOU-IV Range, Bangalore,

and accused No.3 - the Chief Executive Officer of accused No.4 Crl.R.P.No.1193/2012

and in furtherance of the criminal conspiracy, cleared the

container No.CLHU-262095-4 containing the goods meant for

export by accused No.4, without physically verifying the same

before sealing the container, which caused wrongful loss to the

Government of India, to the tune of `26,94,251/- and

corresponding wrongful gain to themselves and thus all the

accused have committed the offences punishable under

Sections 120B read with Sections 420, 467, 468, 471 of the

IPC and Sections 13 (2) read with Section 13(1)(d) of the

Prevention of Corruption Act.

4. After investigation, charge sheet came to be filed

before the Special Court. Cognizance was taken and the

presence of the accused was secured. When the matter was

at the stage of hearing before charge, accused Nos.1 to 3

including the present petitioner who is accused No.1 in the

charge sheet, filed applications under Section 227 of the

Cr.P.C., seeking their discharge from the case.

Crl.R.P.No.1193/2012

5. After hearing both side, the Special Court, by its

detailed order dated 09-11-2012, dismissed their applications

filed under Section 227 of the Cr.P.C., and held that accused

Nos.1 to 3 shall stand trial for the charges levelled against

them. Challenging the said order, the accused No.1 has filed

this revision petition.

6. The respondent - Central Bureau of Investigation

(CBI) is being represented by the learned Special Public

Prosecutor.

7. The Special Court's records were called for and the

same are placed before this Court.

8. Learned Senior Counsel for the petitioner and learned

Special Public Prosecutor for the respondent - CBI are

physically appearing in the Court.

9. Heard the arguments from both side and perused the

materials placed before this Court including the impugned

order passed by the Special Court on the application filed by

the accused No.1 under Section 227 of the Cr.P.C.

Crl.R.P.No.1193/2012

10. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the impugned order passed by the Special Court on the application filed under Section 227 of the Cr.P.C., by the petitioner herein (accused No.1), is perverse and erroneous, warranting interference at the hands of this Court?

11. Learned Senior Counsel for the revision

petitioner/accused No.1 in his argument, mainly canvassed

only one point that, the charge sheet papers would go to

show that, the petitioner was working in the Department of

Customs, whereas the sanction order which is marked as

Ex.P-11 has been passed by the Commissioner of Central

Excise. As admitted by PW-3, in her cross-examination, the

sanction order at Ex.P-11 was under Section 136 of the

Customs Act, 1962 (hereinafter for brevity referred to as "the

Customs Act") in which event, as per Section 137 of the

Customs Act, cognizance of offence cannot be taken, except Crl.R.P.No.1193/2012

with the previous sanction of the Principal Commissioner of

Customs or Commissioner of Customs. In the instant case,

since the sanction was not given by the Commissioner of

Customs, but has been given by the Commissioner of Excise,

the very sanction being an invalid sanction, the cognizance

taken without a valid sanction becomes invalid in the eye of

law.

12. Learned Special Public Prosecutor for the respondent

- CBI, in his argument submitted that, Section 137 of the

Customs Act requires sanction by the Principal Commissioner

of Customs or Commissioner of Customs only with respect to

the offences under Sections 132, 133, 134, 135 or 135-A of

the Customs Act, but that condition is not applicable to the

offences under the provisions of the Prevention of Corruption

Act, as such, the sanction given under Section 19 of the

Prevention of Corruption Act by the Commissioner of Excise,

who is the removing authority, is a valid sanction in the eye of Crl.R.P.No.1193/2012

law. He further submitted that the petitioner was serving in

Excise Department at the relevant point of time. Both Excise

Department and Customs Department comes under the same

Ministry. As on the date of sanction, it was Excise

Commissioner, who had the power to remove the petitioner,

but not the Commissioner of Customs.

Subsequently, by producing few documents along with a

memo dated 08-06-2022, the learned Special Public

Prosecutor for the respondent - CBI submitted that, the

Service Record of the petitioner would go to show that, he was

appointed by the Commissioner of Central Excise and was

later transferred to the Department of Customs and after the

present incident, he was again transferred to the Department

of Central Excise. Therefore, he comes under the Department

of Central Excise, as such, the sanction order passed by the

Commissioner of Central Excise, which is at Ex.P-11, is a valid

sanction and cannot be found fault with.

Crl.R.P.No.1193/2012

13. The first contention of the learned Senior Counsel

for the petitioner is that, as on the date of the alleged offences

by the petitioner, he was serving in the Customs Department.

The sanction order at Ex.P-11 was not issued under Section

137 of the Customs Act, therefore, the cognizance of offence

could not have been taken by the Special Court.

14. Undisputedly, the petitioner was serving in the

Customs Department, as on the date of the alleged offences.

The sanction order which is at Ex.P-11 is issued by the

Commissioner of Central Excise, Bangalore-I

Commissionerate, C.R. Building, Queen's Road, Bangalore.

Admittedly, the sanction has been accorded under Section 19

of the Prevention of Corruption Act. The said fact is clear in

the sanction order at Ex.P-11 itself. Section 137 of the

Customs Act speaks about the cognizance of offences. Section

137 (1) of the Customs Act, reads as below:

"137. Cognizance of Offences.-(1) No Court shall take cognizance of any offence under section 132, Crl.R.P.No.1193/2012

section 133, section 134, or Section 135 or Section 135-A, except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs."

A reading of the above Section would go to show that, it

is the Principal Commissioner of Customs or the Commissioner

of Customs, who is the authority to accord sanction. However,

the said sanction under Section 137(1) of the Customs Act is

required only with respect to those offences under Section

132, Section 133, Section 134, Section 135 or Section 135-A

of the Customs Act.

In the case on hand, admittedly, the offences alleged

against the present petitioner are punishable under Sections

120B, 420, 467, 468 and 471 of the IPC and under Section 13

(2) read with Section 13 (1)(d) of the Prevention of Corruption

Act. Thus, none of the offences under Sections 132, 133, 134,

135 or 135-A of the Customs Act have been alleged against

the present petitioner in the instant case. Therefore, the Crl.R.P.No.1193/2012

sanction need not be given under Section 137 of the Customs

Act.

15. As observed above, the sanction was accorded

under Section 19 of the Prevention of Corruption Act, wherein

Section 19(1)(c) reads as below:

"19. Previous sanction necessary for prosecution: (1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013,-

              (a)... ...    ...     ...


              (b)... ...    ...     ...


              (c)in the case of any other person, of the

authority competent to remove him from his office."

Therefore, the sanction given under Section 19(1)(c) for

the offence punishable under Section 13 (2) read with Section Crl.R.P.No.1193/2012

13 (1)(d) of the Prevention of Corruption Act, cannot be called

as an invalid sanction in the eye of law.

16. The second aspect which the learned Senior Counsel

for the petitioner vehemently canvassed was that, the

sanctioning authority as shown in Ex.P-11 was not the

competent authority to accord sanction, since the petitioner

(accused No.1) was serving as on the date of the offences in

the Department of Customs, whereas the sanction has been

accorded by the Commissioner of Central Excise. Those two

Departments having separate Commissionerate and the

services of the Officers and the officials in those two

Departments cannot be inter-changed, the sanction accorded

by the Commissioner of Excise under Ex.P-11 is an invalid

sanction.

17. Learned Special Public Prosecutor for the respondent

- CBI, in his argument, vehemently submitted that, the

petitioner was initially appointed in the Department of Excise, Crl.R.P.No.1193/2012

but as on the date of the alleged offences, he was serving as a

Superintendent in the Department of Customs. However, as

on the date of sanction, he was sent back to the Department

of Excise, as such, it was the Excise Commissioner who had

the power/authority to remove the petitioner, thus the

sanction has been accorded by the Commissioner of Central

Excise.

To support his contention, learned Special Public

Prosecutor for respondent - CBI, along with a memo dated

29-06-2022, has produced large number of documents,

which are the photocopies of their alleged originals and are

said to be the part of the Service Records and few

Notifications regarding the transfer and placement of the

petitioner, on different dates, during his service.

18. A perusal of the same would go to show that, the

petitioner joined as Inspector on the date 30-09-1974 in the

Central Excise, Mangluru Divisional Office. He was transferred Crl.R.P.No.1193/2012

to Bangalore Collectorate of Central Excise on the date

21-06-1976. Later, he was transferred to the Additional

Collector's Office, Mangaluru, on the date 20-03-1987. There,

he was promoted as Superintendent on the date 28-06-1991.

He was made over from Customs Division, Mangaluru. Then

he was transferred to Belgaum Head Quarters on 02-04-1992.

By order dated 13-05-1996, he was posted to Hubballi A

Range from Belgaum A Range. Later, under Order dated

07-04-2000, he was transferred from A Range Hubballi

Division to Customs, Bangalore. The said order of transfer

was made under Annual General Transfers in the grade of

Superintendent of Customs and Central Excise, by the Office

of the Commissioner of Central Excise, Bangalore-I

Commissionerate vide Establishment Order No.29/2000 dated

07-04-2000. Thus, the said order of transfer was an Annual

General Transfer in the grade of Superintendents of both

Customs and Central Excise done by none else than the

Commissioner of Central Excise only.

Crl.R.P.No.1193/2012

A copy of the said order (dated 07-04-2000), which is

placed for perusal by this Court goes to show that, both the

Central Excise and Customs were coming under the

Department of Revenue, which was under the Ministry of

Finance. Thus, it is not the Commissioner of Customs, who

has passed that order, but it was the Commissioner of Central

Excise. Later, by the order dated 30-04-2002 passed by the

Additional Commissioner of Customs, Head quarters,

Bangalore, which was in pursuance of the Establishment

Order dated 19-04-2002 of the Commissioner of Central

Excise, Bangalore -I Commissionerate, the petitioner was

transferred from Customs Go-down, Bangalore to Customs

Division, Bangalore. Thus, under the Establishment Order

passed by the Commissioner of Central Excise, the Additional

Commissioner of Customs effected the said transfer.

Therefore, the Commissioner of Central Excise was,

throughout, been the Controlling Authority of the present

petitioner.

Crl.R.P.No.1193/2012

Later, the petitioner, by the order dated 04-02-2003,

was transferred from the Customs Division, Bangalore, to

Customs Headquarters, Bangalore. Thereafter under the

Order dated 27-11-2003, from the Office of the Commissioner

of Central Excise, Bangalore-I, under the signature of the

Additional Commissioner (P & V), vide Establishment Order

dated 27-11-2003, the petitioner was transferred from

Bangalore Customs Head quarters to Mysore Central Excise.

By the order dated 05-05-2006, again passed by the

Commissioner of Central Excise, Bangalore-I

Commissionerate, the petitioner was transferred from Mysore

Central Excise to Bangalore Central Excise Zone. Later, on the

date 28-02-2011, after attaining the age of superannuation,

the petitioner retired from the services of the Department of

Central Excise only. Thus, as on the date of the sanction

order at Ex.P-11, which is dated 26-03-2007, he was serving

in the Department of Excise and the Commissioner of Central

Excise, who accorded the sanction was the authority who was Crl.R.P.No.1193/2012

empowered to remove him from the services. As such, the

argument of the learned Senior Counsel for the petitioner that,

the sanctioning order is not passed by the competent

authority, is not acceptable.

19. Though the learned Senior Counsel for the petitioner

contends that, the Department of Excise and Department of

Customs have got separate Commissionerate, as such, their

internal transfers from one Department to another

Department is not valid, but the same is not the question

involved in this petition. However, the fact remains that the

petitioner had joined the services in the year 1974 in the

Department of Central Excise and retired from the Department

of Central Excise in the year 2011, though in between, he was

transferred or made to work as Superintendent of Customs,

but he did not challenge the said assignment or deputation

or transfer by whatever name that may be called. It is only

when the question of sanction to prosecute him under the Crl.R.P.No.1193/2012

provisions of the Prevention of Corruption Act has arisen, he

cannot forward the said contention that the Customs

Department has got a separate Commissionerate. Still, the

fact remains that, as on the date of according sanction,

undisputedly, the petitioner was working in the Department of

Excise only. In spite of the same, if it is the contention of

the petitioner that the sanction order is not in accordance with

law, then, it is not the question of 'no sanction' but it is a

sanction with some irregularity. The said question of alleged

irregularity in the sanction would be a subject matter of adjudication,

provided the same is raised by the accused No.1/petitioner at

the appropriate point of time in the Special Court.

The said view has been taken by the Hon'ble Apex Court

in the case of Central Bureau of Investigation and others Vs.

Pramila Virendra Kumar Agarwal reported in (2020) 17

Supreme Court Cases 664, by referring to its previous

judgment in the case of Dinesh Kumar Vs. Airport Authority Crl.R.P.No.1193/2012

of India reported in (2012) 1 Supreme Court Cases 532,

wherein it is held that there is a distinction between the

absence of sanction and the alleged invalidity on account of

non-application of mind. The absence of sanction no doubt

can be agitated at the threshold but the invalidity of the

sanction is to be raised during the trial.

It further observed in the same paragraph that, in that

case facts, admittedly there was a sanction though the

accused sought to pick holes in the manner the sanction was

granted and to claim that the same is defective which could be

a matter to be considered in the trial.

20. Thus, the argument of the learned Senior Counsel

for the petitioner that, there is no proper sanction to prosecute

the petitioner for the alleged offences, is not acceptable.

Therefore, I am of the view that the impugned order passed

by the Special Court does not warrant any interference at the

hands of this Court.

Crl.R.P.No.1193/2012

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

dismissed;

In view of the fact that the alleged offences

are said to have taken place in the year 2003, the

early disposal of the matter, not later than four

months from today, by the Special Court, is

appreciated.

Registry to transmit a copy of this order along with the

Special Court's records to the Special Court, immediately.

Sd/-

JUDGE

BMV*