IMPORTANT POINTS
Sub sections (1) and (2) are distinct, different and operate in different fields. They are also distinct in its content, objects and purpose and one is not a substitute to the other. In this background, though I concur with the conclusion arrived at by the Delhi High Court in Atul Dixit's case (supra) that a criminal proceeding will not be included in “other proceedings” appearing in sub section (2) of section 155 of Customs Act, the reason given for such conclusion being that prosecution has already been taken care of in sub section (1) does not appear to be rational or reasonable.

JUDGMENT :

The 2nd and 12th accused respectively in C.C.No.2 of 2015 of Special Judge (SPE/CBI), Thiruvananthapuram for offences punishable under sections 120B r/w 420 IPC and sections 7, 12, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 are the petitioners.

2. Petitioners, along with 14 other persons, which include various customs officials, clearing agents, and a private person face prosecution in the above crime registered as R.C. 14CA/2012/CBI/ACD/COCHIN dated 14.08.2012. The allegation of the prosecution, as is discernible from the records, is as follows:

3. The 1st, 12th and 13th accused were Superintendents of Customs, Department of Revenue and Central Excise and Customs, Government of India. The 2nd, 3rd, 4th, 14th, 15th and 16th accused were officiating in the capacity of Inspectors of Central Excise and Customs. All the above were posted at the unaccompanied baggage clearing centre, Air Cargo Complex, International Airport, Thiruvananthapuram during the period July 2012. As per the practice in place during the relevant time, Non Resident Indians, mainly in Gulf countries, were permitted to despatch their personal consignments to India as unaccompanied baggages, disclosing their addresses and passport numbers. On arrival of the parcel at the Airport, each consignee was obliged to present himself at the station, fill up the baggage declaration form, disclosing the details of each item and its approximate value and receive the parcel on payment of requisite fee imposed by the customs authorities. It is stated that due to heavy flow of parcels everyday, customs officers were permitted to avoid physical verification of small parcels which were bonafide baggage’s. According to the prosecution during the relevant period, accused customs officials, who were posted at the Air Cargo Complex, entered into a criminal conspiracy with few clearing house agents and permitted them to club several baggage’s known by the loose expression of door-to-door delivery, book the entire consignment in the name of an NRI who had recently undertaken travel to India and agreed to impose nominal fee. Utilizing this, several NRIs used to send their parcels through such agents who clubbed those parcels under the name of a single NRI, who had travelled to India. According to the prosecution, baggage’s were booked by delivery agents on the pretext of baggage of a single passenger. The customs officials, pursuant to the understanding, used to release them without levying the actual customs duty.

4. On getting information of this malpractice, the CBI conducted a joint surprise check in the Air Cargo Complex at Thiruvananthapuram Airport on 13.07.2012 and on finding that three consignments were released in violation of law, detained those unaccompanied baggages in the custody of Assistant Commissioner of Customs. Joint surprise check proceeding was drawn and statements of few persons present there were recorded. FIR was accordingly registered on 14.08.2012. According to the CBI, a very casual inspection of the three consignments showed that they were not bonafide baggage’s. Those three baggage’s booked in the name of 3 different passengers contained 20 packets, 42 packets and 35 packets respectively, weighing 1435 kgs, 1775 kgs and 1630 kgs respectively. They were only assessed of value Rs.9,500/-, Rs.24,150/-and Rs.17,900/-respectively and after allowing the free allowance, the duty assessed by the customs authorities were Rs.3425/-, Rs.8706/ and Rs.6453/-respectively totaling to Rs.18,584/-. The CBI got valued the above three consignments by SIIB(Special Intelligence and Investigation Branch), who assessed it at Rs.2,51,526/-. Accordingly, tax liable to be paid was fixed at Rs.2,28,615/-. The tax evasion was assessed at Rs.2,10,031/-.

5. Investigation revealed that 15 such unaccompanied baggage’s were released on earlier occasions by adopting similar modus operandi. According to the CBI, the above 15 consignments were dubious door -to-door d