Suresh Ramji Chauhan vs State of Maharashtra

Despite a very valiant effort on the part of Mr. Gupte appearing for the Customs, I think, I will have to allow this petition, as, in my view, there is no material whatsoever to frame any charge as against the petitioner.

The petitioner along with Respondents Nos. 2, 3 and 4 and one Fakruddin Sarafally Ampanwala were charged for the offences punishable u/s 120-B of the Indian Penal Code read with Section 135(1)(a)(ii) and Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. The said Fakruddin became an approver and his statement has been recorded.

The petitioner is a partner of a firm by name Messrs Ramji Jaisingh & Co., engaged in the business of clearing and forwarding work within the jurisdiction of the Bombay Customs for the last several years. The case has been pending since about 1978. The case was committed to the Court of Sessions in the year 1982 and as of today, the case has not made any progress and no charge has been framed so far. In fact, on account of the inordinate delay in the trial of the case, the petitioner had to make an application, rightly to the learned Principal Judge of the Court of Sessions for Greater Bombay and requested that the petitioner and other accused persons be discharged as the case is not being taken up and the proceedings are pending for a long period of eleven years. The learned Principal Judge, instead of deciding the matter, directed that the matter be placed on board on 7th June 1988 before the learned Sessions Judge. Again, there was no progress in the matter. Finally, when the case was taken up by the learned Sessions Judge, it was argued that there is no material for framing the charge and the learned Judge was requested to discharge the Petitioner u/s 227 of the Code of Criminal Procedure. By an order dated 4th November 1988, the learned Judge declined to accept these submissions and he passed an order accordingly. It is against this order the present petitioner who is Accused No. 5 in the said case, filed this writ petition.

It is well settled that for the purpose of considering an application u/s 227 of the Code of Criminal Procedure it is not necessary that the Court should go into details of the statements. Similarly, it is not necessary for the Court to meticulously scrutinise the evidence as found in the statements of the witnesses. It is not the function of the Court to weigh the evidence at this stage. The Court should be satisfied that there is sufficient material on record to frame a charge as against the accused. If there is no such material or grounds to frame a charge, the accused becomes entitled to an order of discharge.

In the present case, broadly the case of the prosecution is as follows : Respondents Nos. 2, 3 and 4 and one Fakruddin and one Abdulla Bhaisaheb (since absconding) conspired to import, illegally, stainless steel circles from Dubai, misdeclaring the same as brass scrap material and they intended to have the same cleared from the Bombay Customs without paying the duty, as they might have been required to pay on import of steel. Their further case is that the goods were to be cleared through the petitioner as the Clearing Agent. The allegation is that all these accused persons conspired to import two consignments for which there would be two separate bills of lading but containing marks and numbers which may be so similar as one can be misled. It appears that in respect of these consignments, the bills of lading contained the numbers as B/L 2 AN/BOMBAY and B/L3 AI/BOMBAY. It is the allegation of the prosecution that each consignment had 75 drums and one consignment had the actual material described as "brass scrap", while the other consignment contained 75 drums of stainless steel. The allegation is that the bill of lading pertaining to one of the consignments containing brass scrap would be submitted first to the Customs and on clearance of the same, the other consignment containing stainless steel would be actually cleared, perhaps with the connivance of the Customs and Port Trust officials and perhaps by making a slight alteration in the marking from ''AI'' to ''AN''. However, this objective could not be achieved as the Customs found out that the fraud and no clearance of any consignment was permitted.

While there may be material as against the other accused, the question is whether there is any material as against the petitioner to frame a charge.

Mr. Gupte relies on the following facts and circumstances as disclosed in various statements. The first circumstances in that the petitioner had acted as a Clearing Agent of Accused No. 1 sometime in the year 1970 or 1972. There was some malpractice in respect of certain consignment of Accused No. 1 at that point of time and the allegation is that the accused have resorted to a similar modus operandi in this case also. But the statement clearly shows that no action was taken against the petitioner and that the petitioner had given up the work of Accused No. 1. The second circumstances is that the Accused Nos. 2 and 3 (i.e., Respondents Nos. 3 and 4 here) had informed Fakruddin (Accused No. 4) that he had made arrangements with the clearing Agents meaning thereby with the Petitioner. The third circumstance is that Fakruddin gave the documents for clearance to this petitioner. However, the petitioner returned these documents saying that they were incomplete. According to Fakruddin, it was Accused No. 3 who has given instructions to the Petitioner for clearance of both the consignments. The fourth circumstance which appears in these statements is that the petitioner had no authority from the actual importers for the purpose of clearance. The fifth circumstance which appears in the statements is that at the time the consignment containing 75 drums of brass scrap, in respect of which there was no objection, was sought to be cleared, the petitioner was present in the Port Trust. These are all the circumstances which have been alleged as against the present petitioner. Mr. Gupte submits that Accused No. 3, in the course of certain correspondence that had taken place between him and Accused No. 4, had informed Accused No. 4 that the clearance would be done through "Mukadam" and Mr. Gupte states that "Mukadam" was none other than the petitioner himself.

It is clear from the statements and the records that the petitioner had not made any attempt whatsoever to clear the consignment which contained stainless steel. In fact, there is a statement of the petitioner himself in these records that he knew that the other consignment contained stainless steel in respect of which there were no proper documents and that, therefore, he did not want to deal with the said consignment.

What is significant in the present case is that there is no statement anywhere in the whole of the record to indicate that Accused Nos. 1, 2 and 3 or Accused No. 4 had at any point of time prior to the import of these materials met and decided as to how they should import these materials in the manner as suggested by the prosecution. The petitioner comes in the picture only after the arrival of the consignments to Bombay. Even at this stage, again, there is nothing to indicate in any of these documents that the Petitioner had made any attempt whatsoever or had planned in any manner whatsoever to have the said consignment containing 75 drums of stainless steel cleared somehow or the other. Mr. Gupte says that it can be said that there is "grave suspicion" as against the petitioner and according to him that is sufficient for the purpose of framing charge as against the petitioner.

In my view, if one has regard for all the statements which are said to be against the petitioner, and if they are considered cumulatively, it cannot be said that there can be any suspicion as against the petitioner much less "grave suspicion". It is only a wild conjecture on the part of the prosecution that the petitioner is somehow involved in a conspiracy to have the said consignment imported without proper documents. The petitioner cannot be prosecuted on such a conjecture.

Mr. Gupte has lastly argued that the present petition is not maintainable because earlier Judge Patel of the Sessions Court had rejected the application made on behalf of the petitioner for discharge of the accused and that the petitioner had not appealed against the said order. He, therefore, submitted that the petitioner could not have chosen to reargue the matter before another Sessions Judge and that thereafter he could not have come to this Court as against the second order that was passed on 4th November 1988. This was the last ditch battle put forward by Mr. Gupte as the records clearly show that the earlier order was neither here nor there. What happened was that the learned Judge after hearing the Advocates on the Application made by the Petitioner passed an order on 21st June 1988. Thereafter the case was adjourned to 15th July 1988. On 15th July 1988 it was pointed out that the complainant in the case had not furnished the necessary documents and records to the accused and that, therefore, the matter could not be proceeded on that day. The learned Judge directed the complainant to furnish the necessary documents and records to the accused before the next date of hearing, which was 28th July 1988. The case reached for hearing on 29th July 1988. It was pointed out on that day that the complainant had failed to furnish copies of the documents and records to the accused and the learned Judge once again gave another opportunity to the complainant to furnish copies of the documents and records and the complainant was also directed to pay costs of the adjournment to each of the accused on that day. Thereafter the matter was adjourned from time to time till the matter reached before Judge Aguiar. The matter was argued before the learned Judge on 27th September 1988 and thereafter for number of days of the question of framing a charge. It is in this process, the learned Judge, after several adjournments and after number of hearings, finally passed an order on 4th November 1988 and this is the order that is impugned in the present petition. I cannot understand as to how in these circumstances Mr. Gupte could have legitimately contended that the present petition is not maintainable or that it can be said that there was sufficient material to frame a charge as against the petitioner. If the matter was argued before Judge Patel, it was certainly without the documents and records being furnished to the accused. Therefore, when Judge Aguiar heard the matter again, it was certainly after the necessary documents and records were furnished to the accused. In fact, it was only after all the necessary documents and records were furnished to the accused, the matter could have been argued for the purpose of considering whether the charge should be framed or not. The learned Judge while dismissing the application made by the present petitioner (Accused No. 5) did not choose to go further to frame charges as against any of the accused. I wish he had done that after having heard the matter for so many days. In any event, since I have come to the conclusion that there is no material as far as this petitioner is concerned, this prosecution as against the petitioner will have to be set aside.

In the result, I pass the following order :

ORDER

The prosecution as against the petitioner is hereby quashed and set aside. The petition is accordingly allowed. Rule is made absolute. The petitioner is discharged from the case. Bail bond, if any, stands cancelled. Surety discharged.

At this stage, Mr. Kotwal, submits that the Court should give certain directions to have this case disposed to without any further delay inasmuch as this case has been pending for the last about 12 to 13 years without any indication as to when the case will be taken up for hearing. Mr. Kotwal is right. I, therefore, give the following directions : I direct the Principal Judge, Court of Sessions for Greater Bombay, to assign this case, namely Sessions Case No. 130 of 1982 to one of the Sessions Judges and to see that the said case is placed on board peremptorily on the 17th July 1989. The learned Sessions Judge concerned then shall hear the Advocates on either side and proceed to frame a charge, if any, which must be completed by 14th Aug. 1989. After the charges are framed, the learned Sessions Judge shall have the case disposed of not later than 31-12-1989.