2017 (7) TMI 178

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....stoms, Custom House, Strand Road, Kolkata in criminal conspiracy with Surendra Singh Bisht, Superintendent of Customs, Kolkata Port Commissionerate; P. Vijay Kumar, Deputy Director, Directorate of Revenue Intelligence(DRI), Mumbai; Pydi Rama Prasad, Deputy Commissioner, Directorate General of Central Excise Intelligence(DGCEI), Kolkata; Baljeet Singh, Customs Appraiser, New Customs House, New Delhi and other unknown officers of Customs Department were demanding and accepting pecuniary favours and illegal gratification for processing import/export related work of one Rajesh Sarda(petitioner herein) of M/s Universal Agency. 3. During the investigation it was revealed that the proposal of M/s Universal Agency, Kolkata was initiated for transportation of cargo from Kolkata port by railway to Nepal through Nautanwa/Jogbani Land Customs Station(LCS) by rail. In this regard permission from the Central Board of Excise and Customs(CBEC), New Delhi was required. The said proposal of the petitioner-Rajesh Sarda was processed and recommended by N.K. Rai, Superintendent of Customs and was forwarded to CBEC, New Delhi through Kolkata Port Commissionerate for approval and N.K. Rai and other of....

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....ion of the offence and the conclusion arrived at by the investigating officer. 8. Consequently, the learned Special Judge (PC Act) (CBI)-06, Patiala House Court, New Delhi took cognizance against the petitioner-Rajesh Sarda (A6) and the petitioner-Sibnath Mal (A-7) for the offences punishable under Section 120B IPC and under Section 12 of PC Act, 1988 and against the petititoner-M.S. Badhan for the offence under Section 120B IPC and under Sections 7, 13(2) read with Section 13(1)(d) of PC Act, 1988 and vide impugned order dated 23.04.2015 summoned the present petitioners. Hence the present petitions. 9. The learned counsel for the petitioners has submitted that the trial Court was not correct in appreciating the evidence in the closure report and the trial Court wrongly took the cognizance and summoned the petitioners for the offence without taking or giving directions to the respondent/CBI under Section 173(8) Cr.P.C. for further investigation and the trial Court has fallen into grave errors of law and has misdirected itself on the issues involved therefore, the impugned order dated 23.04.2015 be set aside. 10. The learned SPP for the respondent/CBI has submitted that ....

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....qua the present petitioners. Sub-section (8) of Section 173 Cr.P.C. is reproduced hereunder:- "(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)." 16. In the instant case the learned Trial Court instead of issuing directions for further investigation to the respondent CBI in order to fetch material evidence under Section 173(8) Cr.P.C. finds sufficient material evidence for taking cognizance qua present petitioners when the respondent CBI itself says that there is no evidence found against the petitioners herein. 17. The Hon'ble Supreme Court in the judgment reported as Pepsi Foods Ltd.and Anr. vs. Special Judicial Magistrate and ....

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....that he was very guarded about the whole transaction. On telephone he scolded Shri P. Vijay Kumar for conducting the whole transaction without taking precaution. He visited Kolkata on 26.10.2012 where Shri P. Vijay Kumar discussed with him the permission to the proposal of M/s Universal Agency. Role of Shri Rajesh Sarda Shri Rajesh Sarda was instrumental in submitting application of M/s Universal Agency for transportation of goods to Nepal through Jogbani and Nautanwa by rail. He arranged bribe money for accused officers and paid them. He had knowledge of the work and payment of bribe. He pursued the matter till grant of permission. Role of Shri Shib Nath Mal Shri Shib Nath Mal is an employee of M/s Universal Agency, working assistant of Shri Rajesh Sarda. The application for permission on behalf of M/s Universal Agency for transportation of cargo through rail route was signed by him." 19. During the course of investigation carried out by the respondent/CBI on the material point of investigation the conclusion drawn is reproduced as under:- "Conclusion As revealed from foregoing paras, it appears that offence has been committed. however, following weaknesses ha....