IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 1057 OF 2007. APPLICATION NO. 1057 OF 2007. APPLICATION NO. 1057 OF 2007. K.P. Sasidharan. ..Applicant. versus 1. The Central Bureau of Investigation, A.C.B., Mumbai. 2. The State of Maharashtra. 3. The Union Public Service Commission...Respondents. .... Mr. Prakash Naik, for the Applicant. Mr. K.P. Shashidharan with V.S. Masurkar, for the Respondent No.3. Mr. R.Y.Mirza, for the Respondent No.1. Mr. D.R. More, APP, for the Respondent No.2. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 25TH JULY,2008. : 25TH JULY,2008. : 25TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the learned Counsel appearing for the parties were heard on 23rd July 2008 and today, the Application is kept for dictation of the Judgment. 2. The Applicant has invoked power under section 482 of the Code of Criminal Procedure, 1973 for quashing the proceedings of a case pending before the learned Special Judge, Greater Mumbai. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be - 2 - necessary to refer to the facts of the case in brief. 3. The Applicant is being prosecuted for offences punishable under sections 120B read with section 420 of the Indian Penal Code and section 13(1)(d) of the Prevention of Corruption Act, 1988. 4. At the relevant time, the Applicant was holding the post of Superintendent of Customs, U.B. Centre, Mumbai and Shri Sipahiram Yadav was posted as Preventive Officer at the same place. One L.R. Reddy, a passenger arrived from Dubai on 21st May 1999. He shifted his residence from Dubai to India. He had booked his accompanied baggage through M/s.Thawardas Wadhumal, Mumbai. The said goods reached Mumbai Port by vessel and delivery was taken from the shipping agent. 5. It is alleged that the said L.R.Reddy after receiving the goods from the Shipping Company made a declaration in the baggage declaration form stating that the baggage contained household items and personal belongings worth Rs.1,15, 700/-. The said Sipahiram Yadav, the Preventive Officer assessed the goods to be of value of Rs.1,50,580/- and accordingly, customs duty alongwith penalty of - 3 - Rs.1,16,205/- was imposed. The allegation is that in pursuance of the conspiracy, the Applicant counter-signed the said assessment of the goods done by the said S.R.Yadav. It is alleged that the said passenger cleared the baggage after paying the duty and the goods were released on 21st May 1999. 6. On the same day on the basis of the information received, a team of Marine and Preventive Wing of the Customs Department intercepted two vehicles carrying the goods outside the Mumbai Port Trust premises. The said seized goods were shifted to customs godown and ultimately, it was found that the value of goods was Rs.19,30,070/-. It was found that there were large number of items in commercial and tradeable quantity which were not reflected in the baggage declaration form, which was cleared by Shri Yadav. It is alleged that in pursuance of a criminal conspiracy, the Applicant and the said Yadav misused their official position and cleared the baggage of the said passenger Shri L.R.Reddey. This resulted in loss of revenue to the Government of India in the form of customs duty with corresponding wrongful gain to them. It is stated that the Applicant made an application for discharge which was rejected by the learned Sessions Judge. - 4 - 7. It is stated that the departmental proceedings were initiated against the Applicant and a memo of charge was issued. An Inquiry Officer was appointed to hold an inquiry against the Applicant. The Inquiry Officer came to the conclusion that charges were established against the Applicant. On the basis of the report of the Inquiry Officer, a penalty was imposed against the Applicant. An Appeal was preferred against order imposing penalty by the Applicant. The Appellate Authority called for the advice of the Union Public Service Commission. The advice submitted by the Union Public Service Commission was that charges levelled against the Applicant were not established. On 19th September 2006, the Appellate Authority (Hon’ble the President of India) allowed the appeal preferred by the Applicant and penalty imposed on him was quashed and set aside. The Appellate Authority was of the view that charges against the Applicant were not established. On the basis of the order of the Appellate Authority, a fresh application for discharge was made which was rejected by the learned Special Judge. On the basis of the order of the Appellate Authority, the Applicant has invoked powers of this Court under section 482 of the said Code. - 5 - 8. The learned Counsel appearing for the Applicant submitted that the allegations made in the disciplinary proceedings against the Applicant were the same as the allegations made against the Applicant in the pending criminal trial. He submitted that the evidence adduced before the Inquiry Officer and the evidence which may be adduced in the prosecution in the pending criminal case is the same. He submitted that there is a clear finding of the Appellate Authority that the goods which were seized on 21st May 1999, were not the same as the goods which were cleared on 20th May 1999. He submitted that considering the clear finding recorded by the Appellate Authority, continuation of prosecution will be an abuse of process of law. He placed reliance on certain decisions to which reference is made in the latter part of the Judgment. 9. The learned Counsel appearing for the first Respondent pointed out that the application for discharge filed by the Applicant was rejected by the Special Court and the said order has been confirmed by this Court by a detailed order dated 17th September 2004. He submitted that the findings, if any, recorded in the disciplinary proceeding will not - 6 - be relevant in the criminal trial. He submitted in the prosecution, independent evidence can be adduced to establish the guilt of the Applicant. He submitted that the fact that the Applicant is exonerated is no ground to quash the criminal proceeding. The prosecution can always adduce the evidence for establishing the guilt of the Applicant. He has also placed reliance on certain decisions of the Apex Court and this Court and submitted that no interference is called for. 10. I have carefully considered the submissions. I have perused the documents on record. In the departmental proceedings, it is alleged that the Applicant accepted the examination report submitted by Shri S.R.Yadav by which he had assessed the value of goods at Rs.1,50,580/-. It is alleged that on re-examination after the vehicles carrying goods were intercepted, the value of goods was assessed as Rs.19,17,017/-. It is alleged that the Applicant failed to exercise effective supervision on functioning of his subordinate officer who failed to conduct 100 % examination. It is alleged that by the above acts of commission and omission, while functioning as a superior officer, the Applicant did not maintain absolute integrity and showed lack of - 7 - devotion to duty. It must be noted here that the Appellate Authority has passed a detailed reasoned order. The Appellate Authority has categorically held that no monetary or malafide consideration for clearing the subject goods was either alleged or proved in the inquiry against the Applicant. The Appellate Authority held that as per the deposition of the tempo drivers, the contents of the goods were tampered near Grand Hotel on the way to Manish Market and hence, the Applicant cannot held responsible. After considering the advice of the Union Public Service Commission, the Appellate Authority allowed the appeal and set aside the penalty earlier imposed on the Applicant. The said order has attained finality. 11. It will be necessary to refer to the charge against the Applicant in the disciplinary proceedings. There were two articles of charge framed against the Applicant, which reads thus :- "Article-1- Shri K.P.Saseedharan, Supdt. of Customs (P) while functioning as such failed to exercise effective supervision on the functioning of his subordinate officer in as much as he accepted the examination report in - 8 - BDF No.739 dated 20.05.99 submitted by Shri S.R. Yadav, Prev.Officer wherein, the Pax had declared value of the goods at Rs.1,15,700/- and assessed by the P.O. at Rs.1,50,580/- on which the Pax paid duty, R.F. on 21.05.99. The baggage covered vide said BDF No.739 dated 20.05.99 was subsequently intercepted by officer of Marine & Preventive Wing, Customs (Preventive) Department on 21.05.99 and on re-examination the same was found to contain dutiable goods imported in commercial and tradeable quantity assessed and valued at Rs.19,30,070/-. The above acts of commission and omission disclose that while functioning as such he did not maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Govt. servant and thus violated Rule 3(i)(ii) of C.C.S. (Conduct) Rules 1964. "Article-2- Shri K.P.Saseedharan, Supdt of Customs (P) failed to exercise effective supervision on the functioning of his subordinate officer viz Shri S.R. Yadav who failed to conduct 100% examination of the baggage covered vide BDF No.739 dated - 9 - 20.05.99, as required in terms of standing order No.7109/95 dated 20.06.95 even when there was no packing list enclosed with the said BDF but dishonestly cleared the baggages. By the above acts of commission and omission on his part Shri K.P.Saseedharan, Supdt. of Customs (P) while functioning as supervisory officer in the UB Centre did not maintain absolute integrity, showed lack of devotion to duty and acted in a manner unbecoming of a Govt. servant and also failed to take all possible steps to ensure the integrity and devotion to duty of his subordinate officer Shri S.R.Yadav, P.O. and thereby, committed gross misconduct and thus violated Rule 3(1)(i)(ii) & (iii) and 3(2)(i) of CCS (Conduct) Rules 1964." 12. Considering the recommendations of the Union Public Service Commission, the Appellate Authority exonerated the Applicant of the aforesaid charges. It will be necessary to refer to relevant findings recorded by the Appellate Authority. The said findings can be summarised as under :- - 10 - (a) Considering the material on record, there is a probability that the goods were interpreted by the M. and P. Officers after the contents of the three cartons cleared on 20th May 1999 were changed/ re-arranged by the party. The cartons intercepted by the M. & P. Officers were found in unsealed condition. There were three cartons cleared under BDF No.739 dated 20th May 1999 and the goods found by the M. & P. Officers were packed in five cartons. (b) The possibility of tampering of the custom seal on the baggages and substitution of goods cannot be ruled out even though the substitution of goods having taken place cannot be established beyond doubt. (c) Once the packages duly sealed with the customs punch and signed by the Preventive Officer were handed over to Mumbai Port Trust for custody and further clearance after following the prescribed procedure, the Applicant cannot be held responsible for goods seized by M & P Officers unless linkage - 11 - of goods cleared under BDF No.739 dated 20th May 1999 with the goods which were seized by the M & P Officers was established. As per the deposition of the tempo drivers, the contents were tampered near Grand Hotel on the way to Manish Market. (d) No malafide or monitory consideration for clearing the subject goods has either been alleged or proved during the inquiry against the Applicant. (e) Considering all the facts and circumstances of the case, the charges against the Applicant are not conclusively established and as such, the Appeal preferred by the Applicants deserves to be accepted. (f) The advice of the Union Public Service Commission that charges levelled against the Applicant were not conclusively established was just, fair and reasonable and the Appeal deserves to be accepted and the Applicant deserves to be exonerated. 13. It will be necessary to refer to the decision - 12 - of the Apex Court in the case of P.S.Rajya v/s. State of Bihar [1996 (2) (Criminal) 234 (SC)], the question that arose for consideration of the Apex Court reads thus :- "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and Concurred by the Union Public Service Commission." This was a case whether the Appellant before the Apex Court was working as Inspector in the Income-Tax Department. Subsequently, he was promoted to the post of Income-Tax Officer. F.I.R was registered against him alleging commission of offence under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947. A Petition for quashing the prosecution by invoking section 482 of - 13 - the Code was filed by the Appellant. The High Court dismissed the Petition and therefore, the Appellant approached the Apex Court. In the said case, disciplinary proceedings were initiated against the Appellant. A departmental inquiry was conducted against him by the Central Vigilance Commission. A report was submitted by the Central Vigilance Commission exonerating the Appellant of all charges. The Union Public Service Commission concurred with the conclusion of the Central Vigilance Commission. The Hon’ble President of India passed an order accepting the recommendation of the Union Public Service Commission. A submission was made before the Apex Court that since the departmental proceedings were initiated against the Appellate on the same charges on the basis of which he was being prosecuted and since he was exonerated therein, no purpose would be served by continuing the criminal proceedings. The paragraph no.13 of the decision of the Apex Court reads thus :- "13. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard - 14 - of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For it the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings." . The High Court while dismissing the Application under section 482 of the said Code had taken a view that exoneration of the Appellant of the same charge in departmental proceedings would not conclude the criminal case against the Appellant. The Apex Court relying upon the decision in the case of State of Haryana and Others v/s Bhajan Lal and Others [1992 Supp. (1) SCC 335] quashed the proceedings of the criminal case by exercising power - 15 - under section 482 of the said Code. 14. Reliance was also placed on the decision of the Apex Court in the case of Joseph B. Bangera v/s State of Maharashtra [2006 (199) ELT 195]. 15. The learned Counsel appearing for the first Respondent placed reliance on a decision of Division Bench of this Court in the case of Babulal Verma v/s Union of India and Another [2008 (3) Mh.L.J. 484 ]. The question before the Division Bench of this Court was whether a departmental proceeding based on identical or similar set of facts deserves to be stayed on the ground of pendency of criminal proceedings. After considering the law on this aspect, the Division Bench came to the conclusion in paragraph no.7, which reads thus :- "7. In view of the above enunciated principle, the dictum that emerges is that there is no uniform principle that wherever a departmental enquiry and the criminal trial is based on somewhat similar facts, the departmental enquiry should essentially by stayed till conclusion of the criminal trial. Mere similarity of facts per se is not a - 16 - ground for staying any of the two proceedings. Their scope, ambit and consequences in fact and law are distinct and different. In the present case, the petitioner was served with a charge-sheet on 6th December, 2002, in relation to the article of charges relating to the period of 1999. Despite objection to the departmental proceedings it has reached at a mature stage and is about to conclude. It will be unfair to stay the departmental enquiry particularly when prosecution evidence in the criminal case has not even started. Even for the sake of argument it is accepted that in the criminal trial the petitioner may be acquitted, that itself would not absolve the petitioner of his liability in the departmental proceedings. The extent of proof of criminal charge would be beyond any reasonable doubt while in the departmental proceedings a person can be found guilty even on reasonable probability. It will be travesty of justice, if the respondents are not permitted to complete the departmental enquiry and await the final decision of the criminal trial which may take years. If the - 17 - petitioner is not guilty of the article of charges, the departmental enquiry will be dropped. But, if he is found to be guilty, then the respondents must have the right to proceed in accordance with law. Stay of departmental proceedings would not serve ends of justice and, in fact, would be prejudicial both to the employer and employee. No right of the petitioner would be offended must less any constitutional protection if departmental proceedings continue. The charges of financial misappropriation and wrongful refunds of the tickets to large number of persons are charges of serious kind. The evidence in the departmental enquiry thus neither is complex not complicated. It raises no complex questions of law. No expert evidence is required to be led and apparently there are no legal niceties of complex nature which require resolution particularly in the departmental proceedings. The case of the department is simple as is apparent from the article of charges and they must be given an opportunity to complete the departmental enquiry expeditiously so that even the petitioner also does not suffer - 18 - agony of sword of departmental proceedings hanging on his head for a long time. The employee is also entitled to know the fate of the departmental proceedings at the earliest. Most of the contentions raised by the petitioner in the present writ petition have been rendered ineffective inasmuch as the departmental proceedings have reached nearly to final stages." The said decision is of no help to the first Respondent. In the present case, in the departmental proceedings, the Applicant has been finally exonerated of the same allegations on the basis of which prosecution has been initiated. In a criminal prosecution a stricter proof is required. 16. The learned Counsel for the first Respondent also placed reliance on a decision of Apex Court in the case of The Assistant Collector of the Customs, Bombay and Another v/s L.R. Melwani and Another. Even the said decision does not help the first Respondent as issue involved in this Petition is not dealt with by the Apex Court. 17. In the present case, it cannot be disputed - 19 - that the disciplinary proceedings were initiated against the Applicant on the basis of the same allegations which are made against the Applicant in the criminal case. In the disciplinary proceedings, the Appellate Authority (Hon’ble the President of India) has exonerated the Applicant of all the charges. The Authority accepted the report of the Union Public Service Commission which was submitted after holding a detailed inquiry. It has been clearly held that the allegations against the Applicant have not been established. Thus, the charge against the Applicant could not be proved in departmental proceedings. The standard of proof required to establish guilt in the criminal case is higher than the standard of proof required to establish the guilt in the disciplinary proceedings. Now, there is an order passed by the Hon’ble the President of India holding that the charge against the Applicant is not proved. The said order has been passed by accepting the recommendation of the Union Public Service Commission. The evidence which may be adduced in criminal case will not be different from the evidence adduced in displinary proceedings. 18. In the circumstances, it is obvious that there is no possibility of the trial ending in - 20 - conviction. No purpose will be served by continuing the prosecution. In the light of the detailed findings recorded in disciplinary proceedings and considering the charges in the criminal proceedings, no purpose will be served by continuing the prosecution. This is a fit case, where the power under section 482 of the Code of 1973 will have to be exercised for securing the ends of justice. 19. In the circumstances, the Application must succeed. Accordingly, the proceeding of C.B.I Special Case No.110/2001 pending before the learned Special Judge ( for C.B.I cases in Greater Mumbai ) as against the Applicant is quashed and set aside. The bail bond of the Applicant stands cancelled. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]