Important points:
• The prosecution has no case that they have obtained sanction under Section 15 of the Passport Act before filing charge sheet before this court. For the purpose of the section 15 of the Act, institution of the prosecution takes place only when cognizance is taken place by the court having jurisdiction-The sanction is not required for registration of the case or investigation of the same. But, before filing charge sheet, it is mandatory on the part of the prosecution to obtain sanction from the Central Government and others.• The offence alleged against the petitioner under Section 12(1)(b) of the Act is not made out and also that the sanction under Section 15 of the Act was not obtained before initiation of prosecution, it has held that the criminal proceedings is a futile exercise. Therefore it has to be terminated in the interest of justice.• It is in public interest and the interest of justice to permit the appellant to cross-examine the two witnesses, whose statements have been recorded by the Adjudicatory Authority.

ASHOK MENON, J.

1. The appellant is a firm engaged in the business of importing and processing of betel nuts. The appellant filed W.P.(C) No.480/2018 to quash, Ext.P5 proceedings of the Commissioner of Customs (Adjudicating Authority) disallowing the request made by the appellant vide Exts.P3 and P4 to cross-examine some witnesses, whose statements have been relied on as material against the firm in a proceeding by the Commissioner of Customs against the appellant for which a show cause notice under S.25 of the Customs Act, 1962 (for short “the Act”) was issued. The appellant had filed the Writ Petition seeking issuance of a writ of mandamus to direct the respondent to permit cross-examination of the two witnesses, who are co-noticees in the proceedings. In initiation of which Ext.P2 notice was issued.

2. The facts are that the Customs Authorities conducted a search in the offices of the appellant-firm and seized certain documents. Consequent to which, Ext.P2 show cause notice was issued calling upon the firm to show cause why the value of the betel nuts imported by the petitioner from Indonesia covered by 26 Bills of Entry referred to therein shall not be re-determined and the differential duty amounting to Rs.6,42,67,411/- with interest and penalty be realised. The allegations were of mis-declaration of Country of origin and under-valuation. The betel nuts were said to be sourced from Indonesia but routed through Bangladesh to avail of the Preferential Trading Arrangement with SAARC Countries (SAPTA). The appellant-firm would assert that they were unaware of the Country of origin and had declared correct value in the bills of entry and that the proceeding was initiated solely based on the statements allegedly given to the Authorities by two persons, namely, Narendra Lodya and Dhaval Lapasiya, the former an Indonesian Indenter. The petitioner requested for copies of the statements and also sought permission to cross-examine those persons in order to discredit their versions. Exts.P3 and P4 are the representations made by the firm. However, the request for cross-examining those persons was turned down, though copies of the statements were handed over. Ext.P5 is the communication received by the firm denying their request to cross-examine the two witnesses and the same is challenged in the Writ Petition. Before we proceed we have to notice that substantial evidence relied on to support the allegation of mis-declaration and under-valuation, as we see from Ext.P2 notice, are the statements of the two individuals above referred and their e-mail communications.

3. The learned Single Judge, after considering the rival arguments and referring to the decisions of the Hon’ble Supreme Court in Canara Bank v. Debasis Das (2003) 4 SCC 557) and Andaman Timber Industries v. Commissioner of Central Excise, Kolkata (2016) 15 SCC 785), held that the Adjudicating Authority in its discretion shall permit examination of witnesses, but the question as to whether in a given case, the decision declining permission to adduce evidence or cross-examine persons is correct can be considered only after the conclusion of proceedings, having regard the prejudice, if any, caused to the party on account of the same.

4. The petitioner in W.P.(C) No.480/2018 is aggrieved by the judgment and is before us submitting that the learned Single Judge failed to consider the ratio contained in Andaman Timber Industries in the proper perspective and that the denial of opportunity to cross-examine the witnesses on the basis of which proceedings were initiated against the firm is illegal.

5. We heard the learned Counsel appearing for the petitioner and the learned Standing Counsel for the Central Board of Excise & Customs.

6. The learned Single Judge had drawn a distinction in the case in hand from the facts in Andaman Timber Industries (supra) in so far as the cited decision being rendered after culmination of the proceedings by issuance of an order, which was held to