A.R.LAKSHMANAN - (1.) LEAVE granted.
(2.) THESE two appeals arise out of the final judgment and order passed by the High Court of Delhi at New Delhi in Criminal Miscellaneous (M) Nos. 360/2002 and 447/2002 filed under section 482 of the Criminal Procedure Code read with Article 227 of the Constitution of India by the appellants herein seeking the invocation of the inherent powers of the High Court for quashing the F.I.Rs and the proceedings initiated in pursuance thereto, as also the process issued by the chief metropolitan magistrate, Delhi. The learned single judge of the Delhi High Court, by the impugned final orders held against the appellants that obtaining from the Ministry of Health Customs Duty Exemption Certificate, that was meant for 'actual user' on false assertion makes out the offence under section 120B read with section 420 of the Indian Penal Code. The respondent herein (Central Bureau of Investigation, New Delhi) initiated criminal proceedings under section 120B read with section 420 of the Indian Penal Code against the appellants on the ground that the appellants in conspiracy with the Director of Gujarat Cancer and Research Institute, Mr. T.B. Patel (deceased), Secretary of the Gujarat Cancer Society, Mr. N.L. Patel and Dr. Viral C. Shah with each other have cheated the government of India in terms of evasion of customs duty and by concealment of facts obtained customs duty exemption certificate in respect of MRI and Lithotripsy machines and by violating the provisions of 'actual user' condition as per Import Export Policy and Customs Notification no. 279/83 dated 30.9.1983 and customs notification no. 64/ 88 dated 1.3.1988 during the years 1987- 90, despite acknowledging the fact that the customs duty has been paid by the appellants to the customs department and settled under the Kar Vivad Samadhan Scheme, 1998. In the instant case, two machines were imported into India by the Gujarat Cancer Society (hereinafter referred to as "the GCS") who availed of the duty exemption on the basis of the exemption certificate issued in the name of the Gujarat Cancer and Research Institute (hereinafter referred to as "the GCRI") on a bona fide premise that since all the activities of the GCRI were funded by the GCS and all the operations of GCS were carried out through the GCRI and that they are akin to holding any subsidiary company, the same could be done. The customs authority raided the premises of the GCRI and seized the machines and necessary paper.work on the ground that the exemption certificate was issued in the name of the GCRI and not in the name of the GCS and thus the GCS was not entitled to exemption and was, therefore, liable to pay Customs Duty. The machines were immediately released on giving a usual undertaking. On 11.10.1991, show cause notice was issued to the GCS which was replied to by them. The Collector of Customs, Bombay by an order dated 10.4.1993 held that the GCS was liable to pay the Customs Duty, thus denying the concessional duty benefit under customs notification nos. 279/1983 and 64/1988 and demanded a duty of Rs. 2,16,80,444/- under section 28 of the Customs Act, 1962 read with the proviso to the said section. The said duty was to be paid by the importer - GCS and Canbank Financial Services as well as ICICI being joint holder of the said imported machines. However, considering the charitable and philanthropic activities of the GCS, no prosecution was recommended and only a token redemption fine of Re.1/- was imposed. No penalty was imposed on the above said financial organisations, namely, Canbank Financial Services and ICICI as they were acting as a lessor, who had extended financial extension to the above charitable organisation for import of sophisticated machines. A personal penalty was imposed on M/s. Shah Diagnostic Institute Pvt. Ltd., Ahmedabad and its director, Dr. Viral C. Shah jointly under section 112 A of the Customs Act, 1962. Against the order of the Collector of Customs, the appellants preferred appeals before the Customs, Excise and Gold (appellate) Tribunal, West Regional Branch, Bombay which confirmed the findings of the Collector of Customs.
(3.) AGAINST the order of the Customs, Excise and Gold (Appellate) Tribunal, the GCS came up in appeal before this Court in civil appeal no. 31/1999. Whilst the matter was pending before this Court, the government of India launched the Kar Vivad Samadhan Scheme, 1998, whereby whoever takes the benefit under the said scheme is granted immunity from prosecution from any offence under the Customs Act including the offence of evasion of duty. In accordance with the Kar Vivad Samadhan Scheme, 1998, the GCS had agreed to deposit the stipulated amount of over Rs. 98 lakhs which had already been deposited earlier and withdrew the civil appeal pending before this Court. On 19.7.1999, a certificate for full and final settlement of tax arrears in respect of the Kar Vivad Samadhan Scheme, 1998 was issued to the GCS. The said certificate, inter alia, certified the receipt of payment from the GCS towards full and final settlement of tax arrears determined in the order dated 10.2.1999 of the designated authority and further granting immunity to the GCS from any proceedings for prosecution from any offence under the Customs Act, 1962 or from the imposition of penalty under the said enactment, in respect of the matters covered in the declaration made by the GCS. However, a case was registered against the appellants on 6.1.1999 by the respondent alleging that the appellants in conspiracy with the director of the GCRI, Mr. T.B. Patel (deceased), secretary of the GCS, Mr. N.L. Patel and Dr. Viral C. Shah had cheated the government of India in terms of evasion of customs duty and by violating the provisions of 'actual user' condition as per Import Export Policy during the year 1987-88. A charge sheet was prepared for commission of offence under section 120B read with section 420 of the Indian Penal Code. On presentation of the said charge sheet, the trial court by its order took cognizance and summoned the appellants. The appellants were furnished copies of the charge sheet. In the meantime, the appellants preferred special criminal applications before the High Court of Gujarat at Ahmedabad seeking quashing of the FIR. However, the same was disposed of as withdrawn on the ground of jurisdiction with a liberty to file a fresh petition before an appropriate court. Thereupon the appellants filed criminal miscellaneous (main) petitions under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India in the High Court of Delhi at New Delhi seeking an appropriate order/directions to the respondent quashing the FIR concerned. The learned single judge of the High Court, of Delhi, by his final order, dismissed the said petitions. Hence these two appeals by way of special leave petitions.;