Ramkumar v. M/S.V.M.&Sons

For Appellant in: Mr.R.Shanmugasundaram, senior counsel(Crl.A.No.102 to for Mr.K.S.Ramachandran 104 of 2003)For Appellant in :Mr.Jaseem Mohamed (Crl.A.No.792 of 2003)For Respondent: Mr.N.Chandrasekaran Special Public Prosecutor for C.B.I.casesC O M M O N J U D G M E N T Criminal Appeal Nos. 102 to 104 of 2003 have beenpreferred by the accused against the judgment of conviction andsentence dated 20.12.2002, passed by the learned Principal SpecialJudge for C.B.I. Cases, in C.C.Nos.6, 1 and 2 of 1999. CriminalAppeal No.792 of 2003 has been preferred by the accused against thejudgment of conviction and sentence dated 20.12.2002, passed by thelearned Principal Special Judge for C.B.I. Cases, in C.C.No.6 of1999. 2.Since several charges have been framed against the accused,it is appropriate to refer to the following details:C.C.No.AccusedChargesAddl.chargesConviction and Sentence1/991.M/S.Triumph Leathers,rep. byP.Stanley,2.P.Stanley3.Solomon4.M.RamkumarA1-u/s 120B,420 r/w 511IPCA2&A3-u/s120B, 420r/w 511, 420r/w 511,468, 471 r/w468 IPCA4-u/s 120BIPC & 13(2)r/w 13(1)(d)of P.C. Act,1988A1 toA3-u/s132,135(1)(i) ofCustomsAct,1962 A4-u/s136(i)ofCustomsAct, &7 ofP.C.ActA1&A2-to undergo imprisonment till theraising of Court and to pay a fine ofRs.1000/- each u/s 120B, 420 r/w 511(2counts), 468, 471 r/w 468 IPC, S.132&135(1)(i) of Customs Act, in default toundergo R.I. for 2 months each.A3-to undergo imprisonment till theraising of Court u/s 120B, 420 r/w 511(2 counts), 468, 471 r/w 468 IPC,S.132&135(1)(i) of Customs Act, indefault to undergo R.I. for 2 monthseach.A4-to pay a fine of Rs.1000/- u/s 120BIPC in default R.I. for 2 months andalso to undergo 1 year R.I. u/s 13(2)r/w13(1)(d) of P.C.Act and to pay a fineof Rs.1000/- in default to undergo 2months R.I. and also to pay a fine ofRs.1000/- u/s 136(1) of Customs Act, indefault to undergo R.I. 2 months andalso imposed a sentence of 6 months u/s7 of P.C. Act and imposed a fine ofRs.1000/- in default to undergo 2 monthsR.I. https://hcservices.ecourts.gov.in/hcservices/ C.C.No.AccusedChargesAddl.chargesConviction and Sentence2/991.M/S.B.V.Leathers,rep. by A2and A32.Vinitha3.Rathnama4.K.AshokKumar5.M.RamkumarA1-u/s 120B,420 r/w 511IPCA2,A3&A4-u/s120B, 420r/w 511, 420r/w 511,468, 471 r/w468 IPCA5-u/s 120BIPC and 13(2) r/w 13(1)(d) ofP.C. Act,1988A1 toA4-u/s132,135(1)(i) ofCustomsAct,1962 A5-u/s136(i)ofCustomsAct, &7 ofP.C.ActA1-sentenced to pay a fine of Rs.1000/-u/s 120B, 420 r/w 511 IPC and 132 & 135(1)(i) of Customs Act, in default 2months R.I. for each.A2 to A4-sentenced to undergoimprisonment till the raising of theCourt u/s 120B, 420 r/w 511 (2 counts),468, 471 r/w 468 IPC, S.132& 135(1)(i)ofCustoms Act and also imposed a fine ofRs.1000/- each, in default to undergoR.I. for 2 months each.A5-sentenced to pay a fine of Rs.1000/-u/s 120B IPC and u/s 136(1) of CustomsAct, in default 2 months R.I. each andalso to undergo 1 year R.I. u/s 13(2)r/w 13(1)(d) of P.C.Act and to pay afine of Rs.1000/- in default R.I. 2months and also to undergo 6 months R.I.u/s 7 of P.C.Act and imposed a fine ofRs.1000/- in default to undergo R.I. for2 months.6/991.M/S.V.M.Sons rep. byShahulHameed2.ShahulHameed3.M.RamkumarA1-u/s 120B,420 r/w 511IPCA2-u/s 120B,420 r/w 511,420 r/w 511,468, 471 r/w468 IPCA3-u/s 120BIPC and 13(2) r/w 13(1)(d) ofP.C. Act,1988A1 & toA2-u/s132,135(1)(i) ofCustomsAct,1962 A3-u/s136(1)ofCustomsAct, &7 ofP.C.ActA1-sentenced to pay a fine of Rs.1000/-u/s 120B, 420 r/w 511 IPC and 132 & 135(1)(i) of Customs Act.A2-sentenced to undergo imprisonmenttill the raising of the Court u/s 120B,420 r/w 511 (2 counts), 468, 471 r/w 468IPC, S.132& 135(1)(i)of Customs Act andalso imposed a fine of Rs.1000/- each,in default to undergo R.I. for 2 monthseach.A3-sentenced to pay a fine of Rs.1000/-u/s 120B IPC and u/s 136(1) of CustomsAct, in default 2 months R.I. each andalso to undergo 1 year R.I. u/s 13(2)r/w 13(1)(d) of P.C.Act and to pay afine of Rs.1000/- in default R.I. 2months and also to undergo 6 monthsimprisonment u/s 7 of P.C.Act andimposed a fine of Rs.1000/- in defaultto undergo R.I. for 2 months. 3.The skeleton of the prosecution case is as follows: (i) M/S. V.M. Sons, represented by Shahul Hameed in C.C.No.6of 1999 and M/S.Triumph Leather, represented by P.Stanley in C.C.No.1of 1999 and M/S.B.V. Leathers, represented by A2-Vineetha and A3-Rathnama in C.C.No.2 of 1999 are Exporters of the finished leathers.A3-Solomon in C.C.No.1 of 1999 and A4-Ashok Kumar in C.C.No.2 of 1999are Clearing Agents.(ii)The case of the prosecution is that in C.C.No.6/1999, theExporters have exported 20 and 16 bundles as per shipping billNos.11464 and 11465 respectively, dated 29.10.2006. Likewise, inC.C.No.1/1999, M/S.Triumph Leather has exported 10 bundles as pershipping bill No.11463, dated 28.10.1996 and in C.C.No.2/1999,M/S.B.V.Leather has exported 14 bundles as per the shipping bill https://hcservices.ecourts.gov.in/hcservices/ No.11462, dated 29.10.1996. At that time, the appellant/Ramkumar, whois working as an Appraiser in the Customs Department has made anendorsement "Let Export" order. (iii) Except the appellant in Crl.A.Nos.102 to 104 of 2003,all other accused are Exporters and clearing Agents. The exportersexport finished leather to foreign countries as per the orders of thebuyers. In this case, the exporters after packing the leatherconsignments and preparing the packing list, invoice anddeclarations, process declaration and duty drawback declarationsigned by the appellant in Crl.A.No.792 of 2003 and other accusedviz. M/S. Triumph Leathers and M/S.B.V.Leathers on behalf of otherexporters submitted the documents to their Customs House Agentnamely, M/S.Mubin and Co by P.W.12. The export documents such asShipping bills were prepared by the typist of P.W.12 and since P.W.12is a clearing agent, they obtained signature by P.W.16 in theshipping bills and P.W.10 submitted, the export documents such asshipping bills, Invoices, Packing lists and declarations to theExport documentation Centre, Customs House, Chennai, for export ofconsignments relating to Exs.P25, P28, P31 and P43 for the assessmentby the Customs Authorities (P.W.9 and 15) and the said documents wereassessed by P.W.9 and open order of relevant bundles were passed byP.W.15 and returned the export documents to P.W.10 for furthernecessary action at the Docks. P.W.10 in turn handed over the saidexport documents to P.W.11 for examination of bundles in theconsignment at Docks by Appraiser Ramkumar in these cases. The saiddocuments were verified by P.W.8 and placed before Ramkumar for openand examination of bundles and passing "Let Export" order in thereverse side of the shipping bills. The case of the prosecution isthat Ramkumar demanded Rs.3,000/- per shipping bill for passing "LetExport" order as the leathers were not finished due to the absence ofprotective coat and dyeing and did not pass the "Let Export" orderand informed the same to P.W.11-Ramaiah, who in turn informed P.W.12over phone about non-passing of "Let Export" order. P.W.12 came tothe docks and met Ramkumar, Appraiser and obtained "Let 'Export"order in the shipping bills. (iv)On 31.10.1996, P.W.1, D.R.I. received intelligence fromC.B.I. about the unfinished leather being exported as finishedleather in contravention of Exim policy and duty drawback scheme.P.W.1 directed his officials (P.W.3 to P.W.6) to detain theconsignments under shipping bills in Exs.P25, P28, P31 and P43 andalso directed his officers to take samples (M.O.1 to M.O.4 series)from pieces of bundles. Accordingly, P.W.3 to P.W.6 took sample ofleathers in the presence of A3 and P.W.6 & P.W.7 at Madras Port, NewCFS, 'O' Yard and other officials under the proceedings Exs.P18, P17and P21 respectively, signed by Ramkumar and P.W.3 to P.W.6 andothers. P.W.1 forwarded the said samples under M.O.1 to M.O.4 alongwith his requisite letter under Exs.P2, P5 and P8 to C.L.R.I., Adyar,Chennai, for their opinion whether the samples satisfy the normsdeclared by the accused in Exs.P25 to P48 as per ETC PN 3/92-97 inExs.P10, P11 and P14. P.W.2-Parthasarathy along with oneN.K.Chandrababu examined the said sample leathers under M.O.1 toM.O.4 series and expressed their opinion in Exs.P3, Ex.P6=Ex.P12 andEx.P9=Ex.P13 signed by P.W.2, which states that the leather samplesare "not finished leathers" as per Public Notice No.3-ETC (PN)92-97. https://hcservices.ecourts.gov.in/hcservices/ (v)On receipt of the opinion under Exs.P3, P6 and P9 fromC.L.R.I., P.W.1 ordered P.W.4 to seize the consignment. On27.11.1996, consignments were seized under Exs.P15, P22 and P24.P.W.4 also examined Suresh Babu, Kothandram and Shahul Hameed andrecorded their statements under Exs.P19, P20 and P23. For furtherdetailed investigation, P.W.1 lodged a complaint under Exs.P1, P4 andP7 with SP, C.B.I., E.O.W. Chennai, who in turn registered a case asper Exs.P64, P66 and P67 respectively. (vi)On receipt of the complaint from P.W.1, C.B.I.represented by P.W.17 and P.W.18, registered regular case inR.C.5/E/97 (Ex.P64), 14/E/97 (Ex.P66) and 15/E/97 (Ex.P67) on10.03.1997 and took up the investigation. During investigation, theyexamined witnesses P.W.1 to P.W.12 and P.W.15 & P.W.16 and recordedtheir statements. On 04.09.1997, P.W.20 recorded the statement ofP.W.12 under Section 164 Cr.P.C. Since the accused had committed theoffences under the Customs Act, P.W.19 obtained sanction from P.W.13and P.W.14-Commissioners of Customs, Chennai, for prosecution againstthe accused in all the three cases, as they have committed theoffences punishable under Sections 132 and 135(1)(i) of Customs Act,1962 and the sanctions are marked as Exs.P51 to P53. After obtainingsanction orders, P.W.19 laid the charge sheets before the learnedACMM, EO-1, Chennai for offences punishable under Sections 120B readwith 420, 420 read with 511, 468 and 471 I.P.C. and Sections 132 and135(1)(i) of Customs Act, 1962 and Sections 7 and 13(2) read with 13(1)(d) of P.C.Act, 1988.(vii)Learned Special Judge for C.B.I. cases, after followingthe procedure, framed necessary charges against all the accused.Since the accused pleaded not guilty, the Special Court examinedP.W.1 to P.W.20 and marked Exs.P1 to P67 & M.O.1 to M.O.4. On thedefence side, D.W.1 was examined. After considering the oral anddocumentary evidence, the learned Special Judge has convicted andsentenced them as stated above. 4.Challenging the conviction and sentence as stated above,the following accused have preferred the appeals, which are asfollows: https://hcservices.ecourts.gov.in/hcservices/ CriminalAppealConviction and sentenceAppellant/AccusedCrl.A.Nos102 to104 of2003A3-sentenced to pay a fine of Rs.1000/- u/s120B IPC and u/s 136(1) of Customs Act, indefault 2 months R.I. each and also toundergo 1 year R.I. u/s 13(2) r/w 13(1)(d)of P.C.Act and to pay a fine of Rs.1000/- indefault R.I. 2 months and also to undergo 6months imprisonment u/s 7 of P.C.Act andimposed a fine of Rs.1000/- in default toundergo R.I. for 2 months.A4-to pay a fine of Rs.1000/- u/s 120B IPCin default R.I. for 2 months and also toundergo 1 year R.I. u/s 13(2)r/w13(1)(d) ofP.C.Act and to pay a fine of Rs.1000/- indefault to undergo 2 months R.I. and also topay a fine of Rs.1000/- u/s 136(1) ofCustoms Act, in default to undergo R.I. 2months and also imposed a sentence of 6months u/s 7 of P.C. Act and imposed a fineof Rs.1000/- in default to undergo 2 monthsR.I.A5-sentenced to pay a fine of Rs.1000/- u/s120B IPC and u/s 136(1) of Customs Act, indefault 2 months R.I. each and also toundergo 1 year R.I. u/s 13(2) r/w 13(1)(d)of P.C.Act and to pay a fine of Rs.1000/- indefault R.I. 2 months and also to undergo 6months R.I. u/s 7 of P.C.Act and imposed afine of Rs.1000/- in default to undergo R.I.for 2 months.Ramkumar, who wasarrayed as A3, A4 andA5 in C.C.Nos.6, 1and 2 of 1999respectively, hascome forward asappellant against theconviction andsentence passed inC.C.Nos.6, 1 and 2 of1999Crl.A.No792/2003A1-sentenced to pay a fine of Rs.1000/- u/s120B, 420 r/w 511 IPC and 132 & 135(1)(i) ofCustoms Act.A2-sentenced to undergo imprisonment tillthe raising of the Court u/s 120B, 420 r/w511 (2 counts), 468, 471 r/w 468 IPC, S.132&135(1)(i)of Customs Act and also imposed afine of Rs.1000/- each, in default toundergo R.I. for 2 months each.1.M/S.V.M.Sons, rep.by Shahul Hameed,2.Shahul Hameed, whowere arrayed as A1and A2 in C.C.No.6 of1999, has comeforward as appellantsagainst theconviction andsentence passed inC.C.No.6 of 19995.Challenging the conviction and sentence,Mr.R.Shanmugasundaram, the learned senior counsel appearing for theappellant/Ramkumar, would submit that the appellant was arrayed asA3, A4 and A5 respectively in C.C.Nos.6, 1 and 2 of 1999. He is anAppraiser in the Customs Department. He was found guilty underSections 120B IPC and 13(2) r/w 13(1)(d) of P.C. Act and Sections 136(1) of Customs Act & 7 of P.C. Act. He would further submit thatthere is no doubt that the appellant herein is a public servant andthere is no iota of evidence before this Court to show that theappellant herein has demanded illegal gratification and received thesame. The only witness alleged to be examined is P.W.12, who has notsupported the case of prosecution. The statement of P.W.12 underSection 164 Cr.P.C. was recorded by the learned MetropolitanMagistrate, who examined as P.W.20 and the same was marked as Ex.P50, https://hcservices.ecourts.gov.in/hcservices/ which is not a substantial piece of evidence. He would further submitthat as per the evidence of P.W.20, who examined P.W.12 under Section164(1) Cr.P.C. (i.e.) confession of the accused, that confessionstatement cannot be relied against the appellant/Ramkumar, sinceP.W.12 was examined as a witness before this Court. As per Section 30of Evidence Act, the confession statement of the co-accused will beadmissible or applicable, if the joint trial of both the accused hasbeen ordered. But here, P.W.12 even though his statements wererecorded under Section 164(1) Cr.P.C. as confession of the accused,he was not arrayed as an accused. He is only cited as a witness andexamined as P.W.12. So Ex.P50 is not an admissible evidence. Hefurther submitted that evidence of P.W.20 cannot be looked into,because he is not a competent person to narrate statements given byP.W.12 under Section 164 Cr.P.C. It is further submitted thatstatement under Section 164(5) Cr.P.C. has been recorded from thewitness used only from the corroboration and contradiction and it isnot a substantial piece of evidence. He would further submit thatthere is no evidence for conspiracy and no one has deposed theconspiracy and Expert opinion Exs.P3, P6 and P9 are not a substantialevidence. So the Special Court committed an error in convicting theappellant/accused under Section 120B I.P.C., Section 136(1) ofCustoms Act and Sections 13(2) r/w 13(1)(d) of P.C. Act and Section7 of P.C. Act, by considering the evidence of P.W.20 and Ex.P50.Hence, he prayed for setting aside the judgment of conviction andsentence passed against the appellant/Ramkumar. To substantiate hisargument, he relied upon the following decisions:(i) AIR 1960 SCC 490 (State of Delhi v. Shri Ram Lohia)(ii)1972 (3) SCC 280 (Ram Kishan Singh) v. Harmit Kaur and another)(iii)1998 (4) SCC 605 (George and others v. State of Kerala andanother)(iv) 1995(2) SCC 76 (Shivappa v. State of Karnataka)(v) (2007) 12 SCC 230 (Aloke Nath Dutta and others v. State of WestBengal)6.Mr.Jaseem Mohamed, the learned counsel appearing for theappellants/A1 & A2 in Crl.A.No.792 of 2003 would submit thatM/S.V.M.Sons represented by Shahul Hameed, is an Exporter. It isfurther submitted that A1 was convicted and sentenced to pay a fineof Rs.1,000/- under Section 120B, 420 r/w 511 IPC and Sections 132 &135(1)(i) of Customs Act and A2 was convicted and sentenced toundergo imprisonment till the raising of the Court under Section120B, 420 r/w 511(2 counts), 468, 471 r/w 468 IPC and Sections 132and 135(1)(i) of Customs Act and also imposed a fine of Rs.1,000/-each, in default to undergo R.I. for two months each. But they havenot committed any such offence and the same has not been provedbeyond reasonable doubt, because Expert opinion is not a substantialevidence. He further submitted that the authorised signatory of thereports under Exs.P3, P6 and P9 was one Chandrababu, who was notexamined. He also adopted the argument of learned senior counsel forthe appellant. Hence he prayed for allowing of the appeal.7.Resisting the same, Mr.N.Chandrasekaran, learned SpecialPublic Prosecutor for C.B.I. cases would submit that except theappellants herein, other exporters and clearing Agents were alsofound guilty under Section 120B I.P.C. 420 r/w 511 IPC and Sections https://hcservices.ecourts.gov.in/hcservices/ 132 & 135(1)(i) of Customs Act, but they were not preferred anyappeal. There was a conspiracy in passing "Let Export" order, togive advantage to the exporters by customs duty exemption and alsoduty drawback, even though the appellant/Ramkumar has aware of thefact that the leather intended to be exported is not a finishedleather. So the conspiracy has been proved by the evidence ofprosecution witnesses and statement of one Suresh Babu (i.e.) Ex.P19.Hence the Special Court has correct in held that the accused werefound guilty under Section 120B I.P.C. He further submitted that thelearned Special Judge has considered the evidence of P.W.8, P.W.9,P.W.15 and Exs.P25, P28 and P31, came to the correct conclusion thatthe appellant, who is an Appraiser in Customs Department has abusedhis position as public servant to obtain pecuniary advantage forexporters and passed "Let Export" order. That factum has beencorrectly considered by the Special Court and convicted the accused.Appellant/Ramkumar has committed criminal mis-conduct by abusing hisposition and obtained for the exporters pecuniary advantage ofcustoms duty exemption and also to obtain duty drawback for theexporters. So the judgment of conviction and sentence passed by theSpecial Court does not warrant any interference. Hence he prayed fordismissal of the appeals. To substantiate his argument, he reliedupon the decision reported in A.I.R. 1963 SC 1116 (M.NarayananNambiar v. State of Kerala).8.Considered the rival submissions made on both sides and thematerials available on record.9.Now this Court has to decide the facts of the case. Theappellant in Crl.A.No.792 of 2003 is an Exporter of leather productsfrom India to foreign countries. It is also an admitted fact that ifthe products are finished products, the exporters are entitled tocustoms duty exemption and also duty drawback. The exporters areintended to export finished leathers and after packing the leatherconsignments and preparing the packing list, invoice and declarationssigned by Agents A3 and A4 in C.C.Nos.1 and 2 of 1999, who submittedtheir documents to their Customs House Agent namely M/S.Mubin and Co,wherein P.W.12 is working. As P.W.12 is a clearing agent, P.W.10,who is the writer under P.W.12 has deposed that a Typist namely,Lakshmi has prepared the export documents. On receipt of thedocuments, P.W.10 has presented the documents before the CustomsDepartment and obtained shipping bills and assessment order. P.W.10further deposed that he handed over the the same to P.W.11-Ramaiah,who is the clearing Clerk for further processing of the cargo. Theshipping bills, packing list and invoices under Exs.P25 to P27,Process declaration under Ex.P34, Export declaration under Ex.P35,drawback declaration under Ex.P36 are presented by him and obtainedshipping bill No.11463 pertaining to C.C.No.1 of 1999. In respect ofthe appellant in Crl.A.No.792 of 2003 (C.C.No.6/1999), P.W.10obtained shipping bill, invoice, packing list under Exs.P31 to P33,declaration, drawback declaration, duty drawback declaration andshipping bill under Exs.P40 to 43, invoice, packing list,declaration, duty drawback declaration and general declaration underExs.P44 to P48 and presented the same before E.T.C. in CustomsDepartment. Then he obtained shipping bill Nos.11464 & 11465 andhanded over the same to P.W.11-Ramaiah. P.W.11, who in turn received https://hcservices.ecourts.gov.in/hcservices/ all the relevant documents for the cases pertaining to C.C.Nos.1, 2and 6 of 1999, has deposed that he gets permission for examination ofthe leather bundles from A.O. in 'O' yard at Chennai Port andobtained an order for open examination. After appraising made by theappraiser, P.W.11 obtained an order for loading. He received thedocuments under Exs.P25 to P48 and handed over the same to theappellant in Crl.A.Nos.102 to 104 of 2003, who is the appraiser inCustoms Department. The duty of the appellant in Crl.A.Nos.102 to 104of 2003 personally inspects and appraises the cargo materials andmade an endorsement "Let Export". Then only the product will beexported. But in this case, P.W.1-D.R.I. has received informationfrom C.B.I. and thereafter, he conducted the enquiry and seized thematerial objects and sent to C.L.R.I. Adyar for verifying whether theleather samples are finished leather or unfinished leather andobtained a report under Exs.P3, P6 and P9 as the samples were "Notfinished leather". Then he gave a complaint under Exs.P1, P4 and P7. 10.As per the evidence of P.W.10, P.W.11 and P.W.12, afterfollowing the procedure, P.W.11 obtained permission for examinationof the leather bundles from A.O. in 'O' yard at Chennai Port andobtained an order for open examination. He handed over the same tothe appellant/Ramkumar, is an Appraiser, who inspected the products.But he has not immediately issued "Let Export" order. Hence P.W.11intimated the same to P.W.12. Then only P.W.12 has obtained an orderof "Let Export" from the appellant/Ramkumar. Admittedly, P.W.11-Ramaiah was treated as hostile witness. Even though P.W.12 has notdeposed about the payment and receipt of the amount other than legalremuneration, he was not treated as hostile witness. It is wellsettled principle of law, the evidence of hostile witness can belooked into. On perusal of the evidence of P.W.10, P.W.11 and P.W.12,it has proved that there is a conspiracy for passing an illegal order"Let Export" by the accused Ramkumar with exporters and clearingagents.11.At this juncture, it is appropriate to consider whetherthe report given by P.W.2 is a substantial piece of evidence. Thelearned senior counsel appearing for the appellant/Ramkumar wouldsubmit that only the Ministry of Commerce is a competent person togive opinion in respect of the goods. But here, only C.L.R.I. hasgiven opinion under Exs.P3, P6 & P9 in respect of the leatherproducts (i.e.) M.O.1 to M.O.4. Therefore, the evidence of P.W.2 isnot a substantial piece of evidence. Hence, it cannot be looked into.But the above argument does not hold good, because the export comesunder the Ministry of Commerce. But Ministry of Commerce is not aninstitution to give opinion about the goods to be exported.Admittedly, the goods exported by the appellant in Crl.A.No.792 of2003 are finished leather and it was described as "finished leather".C.L.R.I. is a competent authority to give opinion about the leatherto be exported. Admittedly, P.W.2 along with one Chandrababu examinedthe material objects and gave a report under Exs.P3, P6 and P9. It istrue, it is not a substantial piece of evidence. But here P.W.2 wassubjected to cross-examination. Hence, report under Exs.P3, P6 and P9are reliable. 12.Now it is appropriate to consider the evidence of D.W.1-Suresh Babu, who has given opinion about M.O.1 is a finished product https://hcservices.ecourts.gov.in/hcservices/ and he has also given reason for the same. Opinion of D.W.1 is contrato the findings given by C.L.R.I., Adyar in Exs.P3, P6 and P9. Whileconsidering the cross-examination of D.W.1., he has fairly statedthat he is aware of the public notice ETC-PN3/92 to 97. But he doesnot know the exact technical name of ETC. He further stated that ifany one of the operations is not carried out as per public notice, itis also not a finished leather. Furthermore, he denied asuggestion, which was posed to him during the cross-examination thatin order to get more job works from tanners he deposed false hood insupport of the accused. In his chief-examination itself, D.W.1 statedthat he has done a job work for exporters in C.C.No.1 of 1999.Considering the evidence of D.W.1, he is interested with exporters.Hence, his evidence has rightly not considered by the Special Court. 13.Even though the report given by P.W.2 is not a substantialevidence, a prima facie proved that the leather samples are not inaccordance with the notice issued under ETC-PN3/92 to 97. So it isnot a finished product. Admittedly, If the exporters have exportedfinished products, they are entitled to customs duty exemption andalso duty drawback amount. To felicitate the exporters to get theamount, the appellant in Crl.A.Nos.102 to 104 of 2003 has given "LetExport" order.14.Now it is appropriate to incorporate some portion of theevidence of P.W.11 and P.W.12, which is as follows: Evidence of P.W.11-Ramaiah:@ // // M$h; vjphp uhk;Fkhh; m';F te;jhh;/ te;J Vw;Wkjp MFk; bghUl;fisxt;bthU njhy; fk;bgdpapd; bghUl;fisa[k; jpwe;J ghh;j;jhh;/ mjw;F gpwFxd;Wk; ngrhky; kPz;Lk; ghh;g;gjhf vjphp uhk;Fkhh; Twptpl;L mth; miwf;Fbrd;W tpl;lhh;/ ehd; 1-2 kzp neuk; ghh;j;J tpl;L mth; tuhjjhy; ehd;btspapy; brd;W vd; Kjyhspaplk; ehd; jfty; brhd;ndd;/ Kjyhsp KgpDhh;uFkhd; Rkhh; 30 epkpl';fs; fHpj;J te;jhh;/ mthplk; Vw;Wkjp Mtz';fisehd; bfhLj;Jtpl;nld;/ // // @Evidence of P.W.12-Mobinoor Rahman:" .. .. m/rh/11 uhikah Vw;Wkjp Mtz';fSld;. Vw;WkjpbghUl;fis nrhjidf;fhf X ahh;Lf;F vLj;J brd;whh;/ mjd; gpwF rpwpJneuk; fHpj;J uhikah vd;id nrhjid Koe;jjhft[k;. cj;jut[ nghLtjw;Ffhyjhkjk; MFk; vd;W vd;dplk; nghdpy; brhd;dhh;/ M$h; vjphp njhy;bghUl;fis nrhjid bra;jjhft[k; Mdhy; cj;jut[ nghltpy;iy vd;Wk; ,uhikah vd;dplk; bjhiyngrpapy; brhd;dhh;/ ehd; 5 kzp mstpy; Xahh;Lf;F brd;W m';F uhk;Fkhiu ghh;j;njd;/ mjd; gpwF nkw;brhd;d 4Vw;Wkjp Mtz';fisa[k; byl; vf;!;nghh;l; vd;W cj;jut[ nghl;L vd;dplk;bfhLj;jhh;/ uhk;Fkhh; vd;dplk; vJt[k; brhy;ytpy;iy/ gpy;fiscj;jut[ nghl;lt[ld; ehd; mthplkpUe;J nkw;fz;l Mtz';fis bgw;W te;njd;/ // @If two or more persons agree together to do something contrary to lawor wrongful or harmful towards another person or to use unlawful https://hcservices.ecourts.gov.in/hcservices/ means, in the carrying out of an object not otherwise unlawful, thepersons who so agree to commit the crime of conspiracy." Here, theappellant/Ramkumar is the appraiser in Customs Department, whoconspired with exporters giving "Let Export" order to help theexporters to enjoy the customs duty exemption and also duty drawback.He is fully aware that the leather is not a finished leather. So theSpecial Court has considered this aspect in a proper perspective andcame to the correct conclusion that the appellant in Crl.A.Nos.102 to104 of 2003 is guilty under Section 120B IPC and 136(1) of CustomsAct and the appellants in Crl.A.No.792 of 2003 are guilty underSection 120B IPC and 420 r/w 511 IPC.15.Admittedly, Exs.P40 to P42 are the declarations by theappellants in Crl.A.No.792/2003, wherein, it was stated as follows:"Variety of finished leather, semichrome Coatfurnishable upper finished leatherWe certify that above leather being exported fallsunder Serial No.(VI)(2)(K) of export trade controlpublic Notice No.3-ETC(PN)92/97 dt.27th May 1992 andthe same satisfies all the norms conditions asspecified in the export trade control public notice."It shows that the appellants had given false declarations, since thereport of C.L.R.I. under Ex.P9 would reveal that the goods are notfinished leathers. So the prosecution has proved that the appellantsin Crl.A.No.792 of 2003 are guilty for the offence under Section 132of Customs Act, since they given false declarations as if theyexported finished leather to entitle the customs duty exemption aswell as duty drawback. 16.Now it is appropriate to consider Section 135(1)(i) ofCustoms Act, which is as follows:"135.Evasion of duty or prohibitions.--(1) Withoutprejudice to any action that may be taken under thisAct, if any person--(a) is in relation to any goods in any way knowinglyconcerned in misdeclaration of value or in anyfraudulent evasion or attempt at evasion of any dutychargeable thereon or of any prohibition for the timebeing imposed under this Act or any other law for thetime being in force with respect to such goods; or(b) acquires possession of or is in any way concernedin carrying, removing, depositing, harbouring, keeping,concealing, selling or purchasing or in any othermanner dealing with any goods which he knows or hasreason to believe are liable to confiscation underSection 111 or Section 113, as the case may be; or(c) attempts to export any goods which he knows or hasreason to believe are liable to confiscation underSection 113; or (d) fraudulently avails of or attempts to avail ofdrawback or any exemption from duty provided under thisAct in connection with export of goods, he shall be punishable,------(i) in the case of an offence relating to,----- https://hcservices.ecourts.gov.in/hcservices/ (A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause(d), if the amount of drawback or exemption from duty exceeds thirty lakh of rupees; with imprisonment for a term which may extend to sevenyears and with fine:Provided that in the absence of special andadequate reasons to the contrary to be recorded in thejudgment of the Court, such imprisonment shall not befor less than one year;The prosecution has proved that the accused/appellants inCrl.A.No.792 of 2003 is guilty for the offence under Section 135(1)(i) of the Customs Act, since the appellants given a falsedeclaration as if they exported a finished leather for obtainingcustoms duty exemption and also duty drawback. So the Special Courthas correctly held that the appellants in Crl.A.No.792 of 2003 wereguilty for the offence under Sections 132 and 135(1)(i) of CustomsAct. 17.Admittedly, the appellants/exporters have knowingly wellthat the commodities are not finished products as contemplated underthe public notice-ETC PN 3/92-97. They also submitted thedeclarations as if they exported finished leather for getting customsduty exemption as well as duty drawback amount. So they are guiltyfor the offence under Section 468 IPC and also 471 read with 468 IPC.Hence the Special Court considering this aspect has come to thecorrect conclusion that the prosecution has proved that A2/secondappellant in Crl.A.No.792 of 2003 was guilty for the offence underSections 468, 471 read with 468 IPC. Hence the Special Court iscorrect in convicting the appellant/A2 in Crl.A.No.792 of 2003 forthe offence under Sections 120B IPC, 420 r/w 511, 468, 471 read with468 IPC and Sections 132 and 135(1)(i) of Customs Act. Consideringthe gravity of the offence, the Special Court has sentenced A2/ShahulHameed to undergo imprisonment till the raising of the Court and alsoimposed a fine of Rs.1,000/- for each counts. I do not find anyreason warranting interference with the findings of the Special Courtand hence, the order of conviction and sentence passed against theappellants in Crl.A.No.792 of 2003 are hereby confirmed. 18.The learned senior counsel appearing for theappellant/Ramkumar would take me through the document filed at thetime of questioning under Section 313 Cr.P.C. and submitted that theappellant/Ramkumar was subjected to disciplinary proceedings and thesame has been set aside by the Central Administrative Tribunal.While perusing the order dated 29.10.2009, passed by the CentralAdministrative Tribunal, in para-11, it was stated that without anydiscussion on the evidence of the witnesses and also documents relied https://hcservices.ecourts.gov.in/hcservices/ by the witnesses coming to conclusion that the charges in Article Iagainst the charged officer is proved, is not at all justified andsuch report of the enquiry officer is not at all based on anymaterial. In such circumstances, I am of the considered view that theabove order will not no way help the appellant herein. 19.The appellant/Ramkumar also relied upon another orderpassed by the Custom, Excise and Gold (Control) Appellate Tribunal,Chennai, in C/1251/98, C/1290/98 and C/1291/98, in para-5, it wasstated as follows:"5. .. .. As the goods tendered for exportconforms to most of the criteria and the variations hasbeen explained as minor and on account of differencesbetween the C.L.R.I., deficiencies and requirements ofthe buyers, these cannot be considered to be deliberateor committed with intent to export prohibited goods outof the country. With regard to the deficiencies, theAppellants are only seeking permission to take thegoods back to the units and to make good thedeficiencies. There was also no deliberate attempt toconceal the deficiencies or to misdeclare the goods.The whole dispute has arisen only because ofvariations, inaccuracies in mechanical operations orthe difference between experts and itraders with regardto grades. There was no effort to export prohibitedgoods. The Appellants have already incurredconsiderable financial loss on account of taking thegoods back for reprocessing and the delay in carryingout their exports and realisation of the exportvalue. .. .." It is true, there is no appeal against the above order. So it is noway improve the case of the appellant.20.Now this Court has to decide whether the learned SpecialJudge is correct in held that the appellant in Crl.A.Nos.102 to 104of 2003 is guilty under Section 13(2) read with 13(1)(d) ofPrevention of Corruption Act, 1988. The learned senior counselappearing for the appellant/Ramkumar would submit that there is noevidence that the appellant herein has demanded illegal gratificationfor passing "Let Export" order in the back side of the shipping bill.The confessional statement of P.W.12 under Ex.P50 is not anadmissible evidence, even though P.W.20-learned MetropolitanMagistrate has examined before the Court.21.At this juncture, it is appropriate to consider theprovisions of Section 13(1)(d) and 13(2) of Prevention of CorruptionAct, 1988."13.Criminal misconduct by a public servant- (1) A public servant is said to commit theoffence of criminal misconduct, ........(d)(ii)if he, -- by abusing his position as apublic servant, obtains for himself or for any otherperson any valuable thing or pecuniary advantage;(2) Any public servant who commits criminalmisconduct shall be punishable with imprisonment for aterm which shall be not less than one year but which https://hcservices.ecourts.gov.in/hcservices/ may extend to seven years and shall also be liable tofine."Admittedly, the appellant/Ramkumar is an Appraiser in CustomsDepartment. So he is a public servant as defined in Section 2(c)(i)of P.C.Act, which is as follows:"2(c)(i) "public servant" means,--any person inthe service or pay of the Government or remunerated bythe Government by fees or commission for theperformance of any public duty."Now this Court has to decide whether he abuses his position as apublic servant obtains for himself or for any other person anyvaluable thing or pecuniary advantage.22.Mr.N.Chandrasekaran, the learned Special Public Prosecutor forC.B.I.cases would submit that the appellant as an appraiser, for thebenefit of Exporters, passed an order for obtaining pecuniaryadvantage on customs duty exemption and also duty drawback amount.Hence he submitted that the ingredients of Section 13(1)(d) of P.C.Act has been proved by the prosecution beyond reasonable doubt andthat has been considered by the learned Special Judge and rightlyconvicted the appellant/Ramkumar. So the conviction passed underSection 13(1)(d) of P.C. Act does not warrant any interference. Healso relied upon the decision reported in A.I.R. 1963 SC 1116(M.Narayanan Nambiar v. State of Kerala) and submitted that being apublic servant, the appellant/Ramkumar abused his position and madean endorsement "Let Export" order. In the citation, it was held thatevery benefit obtained by a public servant for himself or for anyother person by abusing his position as a public servant falls withinthe mischief of the said clause. 23. The learned Special Public Prosecutor for C.B.I. cases wouldrely upon the judgment reported in A.I.R. 1963 SC 1116 (M.NarayananNambiar v. State of Kerala), in which, it is held as follows:"The juxtaposition of the word 'otherwise' with thewords "corrupt or illegal means", and the dishonestlyimplicit in the word "abuse" indicate the necessity fora dishonest intention on the part of the public servantto bring him within the meaning of the clause."24.Considering the citation along with the facts as alreadystated above, the appellant/Ramkumar as an Appraiser in the CustomsDepartment and so he is a public servant. If the exporters exportedthe finished leathers, they are entitled to customs duty exemptionand duty drawback. To enhance and promote the export, the Governmenthas given customs duty exemption as well as duty drawback to theExporters. As the appellant is an appraiser, after he gone throughthe material, even he is well known that the material to be exportedis not a finished leather, issued "Let Export" Order. So theevidence of P.W.11 and P.W.12 would clinchingly prove the guilt ofthe accused beyond reasonable doubt that the appellant/Ramkumarabuses his position and made an order "Let Export". In suchcircumstances, I am of the view that the appellant/Ramkumar hasabused his official position for the benefit of the exporters forpecuniary advantage on customs duty exemption and duty drawback. Thelearned Special Judge considering the oral evidence of P.W.11 and https://hcservices.ecourts.gov.in/hcservices/ P.W.12, convicted the accused based on the materials available onrecord. Hence I do not find any reason warranting interference withthe conviction passed by the learned Special Judge for the offenceunder Section 13(2) r/w 13(1)(d) of P.C.Act. I am of the view thatthe learned Special Judge has correct in held that theappellant/Ramkumar was found guilty for the offence under Section 13(2) r/w 13(1)(d) of P.C. Act.25.Now this Court has to consider whether the Special Court hascorrect in convicting the appellant/Ramkumar for the offence underSection 7 of Prevention of Corruption Act. It is appropriate toincorporate Section 7 of P.C.Act, which is as follows:"7.Public servant taking gratification other thanlegal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant,accepts or obtains or agrees to accept or attempts toobtain from any person, for himself or for any otherperson, any gratification whatever, other than legalremuneration, as a motive or reward for doing orforbearing to do any official act or for showing orforbearing to show, in the exercise of his officialfunctions, favour or disfavour to any person or forrendering or attempting to render any service ordisservice to any person, with the Central Governmentor any State Government or Parliament or theLegislature of any State or with any local authority,corporation or Government company referred to in clause(c) of Section 2, or with any public servant, whethernamed or otherwise, shall be punishable withimprisonment which shall be not less than six monthsbut which may extend to five years and shall also beliable to fine."26.On perusal of the record, P.W.11 and P.W.12 alone have deposedabout the handing over of the relevant documents for obtaining "LetExport" order. But admittedly, P.W.11 and P.W.12 have not deposedthat the appellant/Ramkumar herein has demanded money for passing"Let Export" order. It is pertinent to consider the evidence ofP.W.20, who recorded the statement of P.W.12 under Section 164(1)Cr.P.C. was marked as Ex.P50, in his evidence, his candid admissionis that he recorded the confession of the accused. But P.W.12 is notan accused before the Court and he was not cited as an accused in thecharge sheet. So the statement of P.W.12 is only a statement ofwitness, since he was arrayed as witness in the charge sheet and alsoexamined as witness. Furthermore, it is worthwhile to mention theargument of learned senior counsel for the appellant/Ramkumar thatthe confession of the co-accused cannot be relied against the co-accused. As per Section 30 of Evidence Act, the confession statementof the co-accused will be admissible or applicable, if the jointtrial of both the accused has been ordered. Since P.W.12 is not anaccused, I am of the view that the statement recorded by P.W.20 underEx.P50 is only the statement of witness as per Section 164(5) Cr.P.C.and Ex.P50 is not a substantial piece of evidence and not reliable. https://hcservices.ecourts.gov.in/hcservices/

27.It is worthwhile to consider the following decisions reliedupon by the learned senior counsel for the appellant/Ramkumar:(i) AIR 1960 SCC 490 (State of Delhi v. Shri Ram Lohia), inwhich, it is held that the statements recorded under Section 164Cr.P.C. are not substantive evidence in a case and cannot be made useof except to corroborate or contradict the witness.(ii)1972 (3) SCC 280 (Ram Kishan Singh v. Harmit Kaur andanother), in which, it is held that a statement under Section 164 ofthe Code of Criminal Procedure is not substantive evidence. It can beused to corroborate the statement of a witness. It can be used tocontradict a witness.(iii)1998 (4) SCC 605 (George and others v. State of Keralaand another), in para-36, it was held that the statement of witnessrecorded under Section 164 Cr.P.C. cannot be used as substantiveevidence and can be used only to contradict or corroborate the makerof the statement. (iv)1995(2) SCC 76 (Shivappa v. State of Karnataka), inwhich, it was held that the confession was not voluntary and couldnot be acted upon. In the above citation, the confession was recordedfrom the accused. But here, as already stated that P.W.12 is notarrayed as an accused. Hence, the above citation is not applicable tothe facts of the present case. (v) (2007) 12 SCC 230 (Aloke Nath Dutta and others v. State ofWest Bengal) in which, it was held that confession of the co-accusedwas admissible evidence only under Section 30 of Evidence Act. But asalready stated that P.W.12 is not arrayed as an accused, even thoughstatement has been recorded under Section 164(1) Cr.P.C. In suchcircumstances, the above citation is not applicable to the facts. Butthere is no quarrel over the proposition. 28.As catena of the judgment, it was well settled proposition oflaw that the statement of witness recorded under Section 164 Cr.P.C.is not a substantive evidence and it can be used only forcorroborating and contradicting the deponent. When P.W.12 was inwitness box, he neither treated as hostile nor Ex.P50 was confrontedwith him. P.W.20/Learned Metropolitan Magistrate, who recordedEx.P50, alone has corroborated the same, hence Ex.P50 is notreliable. So barring the evidence of P.W.20 and Ex.P50, there is noevidence to prove that the appellant/Ramkumar herein has demanded oragreed to accept or attempted to obtain gratification, other thanlegal remuneration or a motive or reward for doing. So the learnedSpecial Judge has not considered this aspect in a proper perspective.So I am of the view that the ingredients of Section 7 of P.C. Act hasnot been proved beyond reasonable doubt by the prosecution. So thebenefit of doubt given in favour of the appellant and acquitted theappellant/Ramkumar from the charges levelled against him underSection 7 of P.C. Act. Hence he is not found guilty for the offenceunder Section 7 of P.C.Act. So the conviction and sentence for theoffence under Section 7 of P.C.Act passed by the learned SpecialJudge against the appellant/Ramkumar is hereby set aside. 29.Let us consider Section 136(1) of Customs Act, which is asfollows: https://hcservices.ecourts.gov.in/hcservices/ "136.Offences by officers of customs.-(1) If anyofficer of customs enters into or aquiesces in anyagreement to do, abstains from doing, permits, concealsor [connives at any act or thing, whereby anyfraudulent export is effected or] any duty of customsleviable on any goods, or any prohibition for the timebeing in force under this Act or any other law for thetime being in force with respect to any goods is or maybe evaded, he shall be punishable with imprisonment fora term which may extend to [three years], or with fine,or with both."As per the evidence of P.W.2, Exs.P3, P6 and P9 and evidence ofP.W.11 & P.W.12 have proved that the appellant/Ramkumar, who is anAppraiser in Customs Department, permits the unfinished leathersamples as if they are finished leathers to export and help theexporters to avail the customs duty exemption. So the learned SpecialJudge is correct in finding that the appellant/Ramkumar is guilty forthe offence under Section 136(1) of Customs Act and imposed only afine of Rs.1000/-. Therefore, it does not warrant any interferenceand hence, it is hereby confirmed.30.As narrated above, the Special Court after considering theoral and documentary evidence, has correctly held that the appellantin Crl.A.Nos.102 to 104 of 2003 is guilty for the offence underSections 120B IPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act. So the order of conviction andsentence imposed by the Special Court in respect of Sections 120BIPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) ofPrevention of Corruption Act, does not warrant any interference andhence, they are hereby confirmed. But, however, the Special Court haserroneously convicted the appellant/Ramkumar for the offence underSection 7 of P.C. Act. So the appellant/Ramkumar is acquitted fromthe charge levelled against him for the offence under Section 7 ofP.C. Act and therefore, it is hereby set aside. 31.In fine,• Criminal appeal in Crl.A.No.792 of 2003 is dismissed confirming the order of conviction and sentence passed by the Special Court in C.C.No.6/1999.• Criminal Appeal Nos.102 to 104 of 2003 are partly allowed. The appellant/Ramkumar is acquitted from the charge levelled against him for the offence under Section 7 of Prevention of Corruption Act. Therefore, the fine amount of Rs.1,000/- paid by him is ordered to be refunded. https://hcservices.ecourts.gov.in/hcservices/ • The order of conviction and sentence passed by the Special Court in C.C.Nos.6,1 and 2/1999 in respect of the offence under Sections 120B IPC, 136(1) of Customs Act and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, is hereby confirmed. The bail bond executed by the accused, if any, shall stand cancelled. The Special Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence. Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.kjTo1.The Principal Special Court (C.B.I.Cases), Chennai.2.The Special Public Prosecutor (for C.B.I. Cases) High Court, Madras.3.The Record Keeper Criminal Section High Court, Madras.1 cc To Mr.K.S.Ramachandran, Advocate Sr 37041 cc To Mr.Jaseem Mohamed, Advocate Sr 3395Crl.A.Nos.102 to 104 of 2003 &Crl.A.No.792 of 2003ug[co]gp/31.1