1. The petitioners, who have been arrayed as A4 and A5 out of five accused, have come forward with this revision challenging the order of the learned II Additional District Judge, Special Court (CBI Cases) (Full additional charge), Coimbatore, dated

19.12.2008 made in C.M.P.No.243 of 2008 in C.C.No.3 of 2008 dismissing the petition filed for discharge under Section 239 Cr.P.C.

2. The First Information Report in this case was registered on the basis of source information, in which, the petitioners were implicated for the alleged offences under Sections 120(b) r/w 420 r/w 511 IPC, 468, 471 and 201 IPC, Section 15 of the Prevention of Corruption Act, 1988 and under Sections 132 and 136 of the Customs Act, 1962. On completion of the investigation final report was instituted on which the lower court took cognizance.

3. The first petitioner/A4 was working as Appraiser of Customs and the second petitioner/A5 was working as Senior Tax Assistant at Inland Container Depot (ICD), Irugur, Coimbatore during the relevant period.

4. The sum and substance of the prosecution case is that A1 purported to be the Exporter along with A2, who was his employee, floated fictitious firms and with the help of A3 created false and fabricated documents and prepared two sets of shipping bills one containing actual quantity and value and another with inflated quantity and value and colluded and conspired with A4 and A5 to cheat the Customs Department by making an attempt to claim excessive Customs Duty Drawback from ICD, Irugur, Coimbatore.

5. The specific allegation against A4 and A5 is to the effect that A4 inspected the consignment and certified by signing the GR Form (Guaranteed Receipt Form) inspite of knowing that the quantity of weight, FOB Value and market value were inflated in one set of shipping bills and whereas A5 alleged to have made false entries in the customs document, viz., Shipping Bills Register and Customs Security Register in respect of inflated weight, FOB Value and market value and subsequently, after the detection of the fraud, he had erased the entries in the said Registers. It is further alleged that in view of the above said allegations, A4 and A5 have caused disappearance of certain evidence in respect of the offences committed, with the intention of screening the offender.

6. Mr.K.Subramaniyan, learned Senior Counsel for the petitioners as well as learned Special Public Prosecutor for CBI Cases brought to the notice of this Court that during the pendency of this revision, the learned trial Judge framed charges against all the accused including the petitioners, who have been arrayed as A4 and A5. The learned Senior Counsel for the petitioners produced a true xerox copy of the charges framed against the accused. A perusal of the said true xerox copy of the charges framed against the accused reveals that the following charges have been framed against the accused :

Charge No. Accused Offences under Section/s

120-B r/w 420 r/w 511 IPC, 468, 471 and 201 IPC ; Section 15 of the

I A1 to A5 Prevention of Corruption Act, 1988 and Sections 132 and 136 of the

Customs Act.

II A1 and A2 468 IPC

III A1 and A2 468 r/w 471 IPC

IV A1 to A3 511 r/w 420 IPC

V A1 and A2 201 IPC

VI A4 and A5 201 IPC

VII A1 to A3 132 of the Customs Act

VIII A4 and A5 136 of the Customs Act

IX A4 and A5 15 of the Prevention of Corruption Act, 198

7. Mr.K.Subramaniyan, learned Senior Counsel for the petitioners/A4 and A5 vehemently contended that there is no material available on record to implicate the petitioners for the offences alleged against them and the learned trial Judge without considering the contentions raised in the petition for discharge and without any materials available on record dismissed the application for discharge on the basis of presumption by merely referring the case laws in respect of the scope of provisions under the Code of Criminal Procedure for discharge of the accused and put forward the following contentions :

(1) There are no two sets of d