- (1.) R. P. Yadav, J. These are two petitions under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) for quashing the charge-sheet dated 17-2-2,003 (Annexure No. 2 to the petition) and the order dated 15-2-2005 (Annexure-7) passed by III Additional Chief Judicial Magistrate, Lucknow rejecting the objection/representation filed by the petitioners pursuant to the order passed by this Court on 18-1- 2005 in Criminal Misc. Case No. 557 of 2003 (Vivek Chaturvedi and Ors. v. State of U. P and Ors.) and Criminal Misc. Case No. 617 of 2003 (Jogindra Singh and Ors. v. Sate of U. P. and Ors.), whereby the summoning order dated 15-3-2003 was quashed by this Court and the petitioners were given an opportunity to file a representation and the learned Magistrate was directed to pass appropriate orders thereon after deciding the question of requirement of Sanction under Section 197 of the Code.
(2.) CRIMINAL Misc. Case No. 977 of 2005 has been filed by S/shri Vivek Chaturvedi. D. P. Saxena and P. K. Katiyar, who were named in the F. I. R. of crime No. 14/2002 registered at police station Krishna Nagar, Lucknow in compliance of the direction of the learned Magistrate on 10-1-2002 passed on the application moved by opposite party No. 2 Shri R. K. Singh on 21-12-2001 in respect of occurrence dated 16-2-2001, whereas CRIMINAL Misc. Case No. 978 of 2005 has been filed by S/shri Jogindra Singh, C. Rajendran, P. K. Misra, Smt. Sanyogita Misra, Y. K. Chowdhary, A. K. Misra, Mohd. Tariq, S. K. S. Tomar, S. K. Srivastava, Raghuraj Singh, Gore Lal and Faridul Hasan, who were not named in the F. I. R. lodged in pursuance of the order passed by the learned Magistrate on 10-1- 2002. Common question of fact and law are involved, in both the petitions, therefore, they have been heard together and are being disposed of by this common judgment. This legal battle is between the officers of customs and central excise department working under the Government of India. The opposite party No. 2, R. K. Singh, who is the complainant and at whose prayer, the F. I. R. was lodged, was an Inspector, Central Excise and customs posted at Lucknow. He was placed under suspension by the order of the Additional Commissioner, Central Excise Lucknow on 7-3-2001 with effect from 17-2-2001. That order was revoked subsequently and he is now Superintendent of Customs and Central Excise. He will be called as the complainant hereinafter. Petitioners who are arraigned as accused persons are the officers of the said department. Some of them are the officers of the Indian Revenue Service.
(3.) IN order to appreciate the controversy involved, it would be necessary to look into the following facts lying in the background. The officers of the Directorate of INtelligence and investigation (For short DRI) intercepted two consignments of cargo in two containers at Nhava Sheva Mumbai, which were cleared by customs authorities at ICD Hyderabad. The said consignments were being exported in the name of two firms, namely, M/s. Sri Vishnu Merchants, Plot No. 70, Soujanya Co-operative Housing Society, New Bowenpally, Secunderabad and M/s. Pashupathi Traders plot No. 4, Sri Mansion Building, Jyothi Colony, Secunderabad. The said two consignments were examined by the officers of DRI on 9-2-2001. As per the documents of export, the goods contained therein were cleared from ICD Sunathnagar, Hyderabad. The goods were cosigned to M/s. Silverline Trading Company LLC, UAE and the description of the gods was "naproxen" (a bulk drug ). The said goods were into 235 drums, 45 of which were of hard board and the remaining were PBC drums. Labels found on the drums read as follows: Naproxen, (commercial grade), Batch No. NAP 10708, manufacturing December, 2000, Expiry dote-November, 2005, net weight: 50 Kg. Since some fraud was suspected in consignment of the said goods, the officers of the DRI, after observing necessary formalities, drew representative samples, which were sent to the chemical examiner. Grade-1 Nhava Sheva, Jawahar Customs House on 10-1-2001. The said samples were tested and the material therein was found to be not "neproxen" but inorganic chemical 'calcium carbonate' (commonly known as chalk powder/marble powder ). Total declared value of consignments of goods were Rs. 3,19,97,306. The goods were seized under the provisions of Customs Act, 1962, on 15-1-2001. The investigation revealed that one Rajnish Agrawal of Hyderabad was the ring leader and Shri Sanjay Agarwal, brother of Shri Rajnish Agarwal, Rajesh Jain and Shri Naresh Jain of Dubai and Shri Vimal Kumar Jain brother of Sri Naresh Jain residing at Delhi and Shri Manoj Kumar Jain of Hydrabad were involved in this scam. Shri Rajnish Agarwal was knowingly and actively concerned with the export of chalk powder cleared from ICD Hydrabad on 3-1- 2001 by mis-declaring the same as bulk drug namely Naproxen. The aforesaid consignment was being exported fraudulently to claim the customs duty exemption under DEPB Scheme. It was also found during the course of investigation that the bogus consignment was exported as per pre-determined strategy and active connivance of Shri Naresh Jain and Shri Rajesh Jain who were accepting the same and were to send money meant for compensatory Hawala payments through banking channels in the guise of export proceeds. Shri Rajesh Agarwal was instrumental in procuring chalk powder from M/s. Techno Minerals and getting the same packed and labelled at M/s. Apar Pharma. Shri Rajnish Agarwal took one Shri Janak Prasad Sharma to Shri V. K. Singh (C. H. S) Customs House Agent and gave instructions to Shri Janak Prasad Sharma to sign the documents for export. On reference being given by Sri Ravindra Rastogi his old friend he contacted Shri R. K. Singh opposite party No. 2 Inspector of Central Excise at Lucknow and sought his help to clear hurdles at Nhava Sheva port for the consignments intercepted by DRI, exported in the name of M/s. Shri Vishnu Merchants and M/s. Pashupathi Traders from ICD, Hyderabad.;