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IN THE COURT OF THE SPECIAL JUDGE, CBI, ASSAM, ADDITIONAL COURT
NO.1, CHANDMARI, GUWAHATI
Present: Mrs. S. Bora, AJS Special Judge CBI, Assam, Addl. Court No.1, Chandmari, Guwahati.
SPECIAL CASE NO.08/2015
RCSHG2013A0002
CBI
-Vs-
(1) Sri Sagar Kumar Dutta
(2) Sri Mukti Pada Acharjee
(3) Sri Chhanda Deb
(4) Sri Arijit Bhattacharjee
……….Accused persons
U/S 120B, 471 of IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of
Corruption Act, 1988 and Sections 132 and 136 of Custom Act, 1962.
A P P E A R A N C E:
For the Prosecution: Mr. A. Singh, Learned Public
Prosecutor through CBI.
For accused Sri Sagar Kumar Dutta: S. D. Purakayastha and S.
Choudhury.
For accused Sri M.P. Acharjee: R. Dubey.
For accused Sri Chhanda Deb: D. Nandi
For accused Sri Arijit Bhattacharjee: A. Bhattacharjee.
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Date of evidence: 25.07.16, 29.08.16, 26.10.16, 29.11.16,
18.04.17, 24.05.17, 26.07.17, 27.07.17,
31.08.17, 19.09.17, 27.10.17, 23.11.17,
19.01.18, 20.01.18, 15.02.18, 16.02.18,
12.03.18, 13.03.18, 06.04.18, 07.04.18,
05.06.18, 07.08.18, 08.08.18, 05.10.18.
Date of Arguments: 18.03.19, 26.03.19, 06.04.19, 26.04.19, 21.05.19, 13.06.19, 25.06.19, 15.07.19,
25.07.19.
Date of Judgment: 01.08.2019
J U D G M E N T
1. The case of the CBI as unfolded during trial, in short is that CBI received
information through reliable source that during the period of 2008 to 2011, Sri
Sagar Kumar Dutta, the then Superintendent (Disposal) and Sri Mukti Pada
Acharjee, the then Inspector (Disposal) in the office of Deputy Commissioner,
Customs Division, Karimganj have entered into criminal conspiracy with each
other and with (1) M/s Kathia Baba Drug Distributor, (2) M/s Shova Drug
Distributor, (3) M/s Sen Drug Distributor, (4) M. S Wing Drug Distributor, (5) M/s
Sen Drug Distributor, (5) M/s Dipali Pharma & Surgicals, (6) M/s Dhar Drug
Agency and with Syndicate people of Karimganj, namely (7) Sri Khukha Ghosh
(8) Sri Babul Kuri, (9) Sri Mashoq Ahmed @ Masuk, (10) Sri Mona Muhari, (11)
Sri Gautum Dhar @ Sumit Dhar, (12) Sri Raja Roy, (13) Sri Ramu Dutta, (14) Sri
Alok Roy, (15) Sri Rupak Deb and with unknown others, and in pursuance of said
conspiracy, have disposed huge quantities of phensedyls/specified good/schedule
‘H’ drugs through auction with a seizure value of Rs.99,07,365/- (approx) by
abusing their official power/position and violating all laid down
Instruction/Circulars/Rules & Regulations had dishonestly and fraudulently shown
undue favour and thus given undue pecuniary advantage to the said
bidders/syndicate people of Karimganj/unknown others and promoted illegal
export of phensedyls/specified goods/schedule ‘H’ drugs to Bangladesh and
neighbouring States/districts of Karimganj.
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2. It is alleged that the aforesaid Drug Distributors are small time
businessmen and they apparently do not have the financial capacity to purchase
such huge quantities of phensedyls. These Drug Distributors have reportedly
denied to have purchased the said Phensedyl nor paid the amount though their
signatures are available in the relevant records including TR-5, indicating
involvement of some unknown Drug Syndicates including Custom Officials.
3. It is alleged that in the Auction Notice, Security Deposit of Rs.50,000/-
and PAN Card for identity proof had been mentioned. However, the Custom
Officials has not collected said security money nor collected identifies proof from
the bidders/purchaser of auctioned phensedyls. Further alleged that Customs
Officials/Proper Officer did not maintained any records, such as, place of storage,
movement vouchers, accounts, etc. against the disposed phensedyls.
4. It is alleged that drug licenses and other related documents have been
collected from the License holders by the Customs’ Officials in collusion with
Syndicate People. Some Licenses have been collected without the knowledge of
the Proprietor or owner and some have been obtained by giving commission or
lump sum amount. There has been forgery and use of forged documents. It is
alleged that Sri Sudip Mazumder, Prop. of M/s Dipali Pharma & Surgicals that the
signature appearing on TR-5 No.B-31663 dated 22.11.2010 for Rs.14,90,000/-
towards sale of 29,980 bottles was forged and fictitious and there are similar
allegations lavelled by other Proprietors of Drug Distributors in question. Accused
Sri Sagar Kr. Dutta, the then Superintendent (Disposal) and Sri Mukti Pada
Acharjee, the then inspector (Disposal) conducted the auction and were
physically present. The fake and forged bid lists were signed by the customs’
officials in connivance with the other accused.
5. It is alleged that some individuals(s) who do not possess valid drug
license were allowed to purchase Phensedyls through auctions by the Customs
Officials, Karimganj, which was clear violation of laid down provisions of Law.
Further alleged that aforesaid Drug Distributors had failed to maintain any
accounts/records regarding the purchase and subsequent sale of the said
Phensedyl. The entire auctioned/disposed Phensedyls were presumably exported
illegally to Bangladesh and other neighbouring states where the prices go up
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manifolds, thus customs officials cause undue pecuniary advantages to the
accused who purchased phensedyl.
6. It is further alleged that said Customs’ Officials have disposed said
Phensedyls/Specified goods based on the Circular N.12/2006 Customs dated
20.02.2006 relating to guidelines for the valuation and disposal by auction-cum-
tender of seized, confiscated and time-expired goods, It is alleged that this
Circular has emphasized on normal goods, but has no particular mentioned
relating to disposal of Specified goods/Schedule ‘H’ drug/Phensedyls.
7. It is alleged that vide letter F.No.549/8/80-LCI dated 18.12.1981 issued
by the Ministry of Finance (Department of Revenue), which has laid down clear
instructions on disposal of seized/confiscated drug formulations. Those can be
either destroyed or used in hospitals.
8. It is further alleged that the Drugs Controller of Assam has wrote letter
vide No.HSD/Misc/36/99/Pt/2162 dated 19/05/2010 to the Commissioner of
Customs (Preventive), establishment not to sell drugs items without taking Drugs
Control Department into confidence as the sale on Phensedyl Cough Linctus item
is restricted in Assam and the Drugs Department into confidence do not allow
any sale of such item from the Company’s Depot or C & F agent unless the
purchaser produce a certificate from the Drug Department.
9. Wherein, vide Facility No.2/2008 dated 08-04-2008, issued by the
Commissioner of Customs (Preventive), NER, and Shillong – regarding procedure
for dealing with specified goods. It is alleged that Karimganj Town falls within 50
Kilometers width from India’s land border with Bangladesh, and is therefore
within the ‘Specified Area’ as cited in Section 11-H Clause (c) of Custom Act
1962. And under Section 11-H Clause (e) of Custom Act 1962, relating to “Drug
formulations containing Codeine or its salts” would mean, “Specified goods”. It is
alleged that in clear violation of said Facility No.2/2008, Customs’ officials of
Customs Division, Karimganj has disposed huge number of Phensedyls during the
said period through auction.
10. On the basis of a source information, Sri N. Gogoi, Superintendent of
Police, CBI, ACB, Guwahati registered FIR as Case No.RCSHG2013A0002, U/S
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120-B, 471 of IPC and U/S 13(2) R/W Section 13(1)(d) of Prevention of
Corruption Act, 1988 and Section 132 & 136 of Custom Act, 1962. The CBI,
thereafter, investigated into the matter in detail, recorded the statement of
witnesses U/S 161 of Cr.P.C., seized various documents. After completion of
investigation, CBI submitted charge-sheet against the accused persons, namely,
(1) Sri Sagar Kr. Dutta, the then Superintendent (Disposal), (2) Sri Mukti Pada
Acharjee, the then Inspector (Disposal), (3) Smt. Chhanda Deb, (4) Sri Arijit
Bhattacharjee @ Sanku, U/S 120-B, 471 of IPC and U/S 13(2) R/W Section
13(1)(d) of Prevention of Corruption Act, 1988 and Section 132 & 136 of Custom
Act, 1962.
11. On appearance of accused persons before the court, they were allowed to
go on bail. Copies were also furnished to the accused persons by CBI. My
learned predecessor, having heard learned counsel for CBI as well as defence
counsel on the point of framing charges, framed charges U/S 120-B, 471 of IPC
and U/S 132 of Custom Act against accused Sri Chhanda Deb & Sri Arijit
Bhattacharjee and charges U/S 120-B, 471 of IPC and U/S 13(1)(d) R/W Section
13(2) of Prevention of Corruption Act and Section 132 & 136 of Custom Act
against accused Sri Sagar Kr. Dutta & Sri Mukti Pada Acharjee. The contents of
the charge was read-over and explained to the accused persons to which, they
pleaded not guilty and claimed to be tried.
12. The CBI, in order to bring home the charges levelled against accused
persons has examined as many as 27 (twenty-seven) witnesses namely;
(i) PW-1, Sri B. K. Mahanta,
(ii) PW-2, Shri Gaigongdin Panmei,
(iii) PW-3, Shri Monmath Kumar Nath,
(iv) PW-4, Shri Bappi Chakraborty,
(v) PW-5, Shri Haripada Roy,
(vi) PW-6, Sri Arpan Das,
(vii) PW-7, Sri Chinmoy Roy,
(viii) PW-8, Shri Digendra Deb,
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(ix) PW-9, Shri Prashant Das,
(x) PW-10, Shri Bipul Dhar,
(xi) PW-11, Shri Sushen Mazumdar,
(xii) PW-12, Shri Debajit Bhattacharjee,
(xiii) PW-13, Mr. Abhishek Kr. Sinha,
(xiv) PW-14, Shri Abhijit Nag,
(xv) PW-15, Shri V.Hangzo,
(xvi) PW-16, Shri Vanlalfan Khuongpui,
(xvii) PW-17, Shi Probir Kr. Sen,
(xviii) PW-18, Sri Hidam Langdingamba Singh,
(xix) PW-19, Satyendra Kr. Sinha,
(xx) PW-20, M.N. Bhattacharya,
(xxi) PW-21, Sri C.M. Flavian,
(xxii) PW-22, Sri Tapas Bhattacharjee,
(xxiii) PW-23, Smti. R.M. Kharsyntew,
(xxiv) PW-24, Shri L. Loganathan,
(xxv) PW-25, Shri Paritosh Singha Choudhury,
(xxvi) PW-26, Sri Subrata Debnath,
(xxvii) PW-27, S. T. Khaute.
13. The accused persons are examined U/S 313 Cr.P.C. In their examination
U/S 313 of Cr.P.C., accused persons have denied the commission of the offences
alleged to have committed by them. Defence has not adduced any evidence.
14. I have heard arguments advanced by the learned counsels for CBI as well
as for the defence at length. I have carefully perused the evidence on record
both oral and documentary.
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15. POINTS OF ARGUMENT FOR PROSECUTION:
Learned Public Prosecutor in the course of argument has contended that
as per the charge-sheet filed by the CBI the main allegation against the accused
persons is that during the year 2008-11, S.K. Dutta and M. P. Acharjee entered
into criminal conspiracy with Arijit Bhattacharjee and Chhanda Deb and in
pursuance of the said conspiracy they disposed huge quantities of
Phensedyls/Specified goods/Scheduled “H” Drugs through auction by preparing
fake and forged bid lists and abusing their official power/position and violating all
laid down instructions/circulars/rules & regulations, had dishonestly and
fraudulently shown undue favour and thus regulations, had dishonestly and
fraudulently shown undue favour and thus given undue pecuniary advantage to
the said bidders/syndicate people of Karimganj/unknown others and promoted
illegal export of Phensedyls/Specified goods/Schedule “H” drugs to Bangladesh
and neighbouring States/Districts. All the PWs have supported the prosecution
case. Therefore guilt of the accused persons has been proved beyond all reason
doubts. It is proved that the accused persons have committed offence U/S 120B,
471 IPC, Section 13(2) r/w 13(1)(d) of PC Act and Section 132 & 136 of Custom
Act.
16. (A) POINTS OF ARGUMENT FOR ACCUSED SAGAR KR. DUTTA:
Learned counsel for accused Sagar Kr. Dutta has submitted in his
written argument that there was no valid sanction for prosecution of the accused
Sri Sagar Kr. Dutta (A-1) in the instant case. Situated thus, the case against the
accused Sri Sagar Kr. Dutta (A-1) is liable to be dropped and he deserves to be
acquitted for want of valid sanction.
In the instant case Sri Sagar Kr. Dutta (A-1) has also been charged for
the offence punishable under Section 132 and 136 of the Custom Act, 1962. He
was acting as Superintendent (Disposal), Karimganj at the relevant point of time.
No previous sanction under Section 137 of the Custom Act, 1962, has
been obtained by the prosecution for trying Sri Sagar Kr. Dutta (A-1) for the
offence punishable under Section 132 and 136 of the Custom Act, 1962, which
has vitiated the entire trial. PW-27 in his cross-examination has admitted that no
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previous sanction under Section 137 of the Custom Act, 1962, has been obtained
by him against the accused persons.
Learned counsel for accused Sagar Kr. Dutta has further submitted that
the prosecution has failed to prove the charge levelled against accused U/S 120B
and U/s 471 of IPC.
In support of contention, learned counsel has placed reliance the
following decisions:
(i) To bring home the charge of conspiracy within the ambit
of Section 120B of IPC, it is necessary to establish that
there was an agreement between the parties for doing an
unlawful act. It is no doubt true that it is difficult to
establish conspiracy by direct evidence and therefore, from
established facts inference could be drawn but there must
be some material from which it would be reasonable to
establish connection between the alleged conspiracy and
the act done pursuant to the said conspiracy. Vijayan vs
State of Kerala, reported in 1999 (3) SCC 54.
(ii) Sushil Suri vs Central Bureau of Investigation,
reported in (2011) 5 SCC 708/AIR 2011 SC 1713.
(iii) Sashi Kumar Banarjee & others vs. Subodh Kumar
Banarjee, reported in AIR 1964 SC 529; State of
Maharastra vs. Sukhdeo Singha and Anr, reported
in AIR 1992 SC 2100.
(iv) In the case of Mohd. Faizan Ahmad vs. State of Bihar,
reported in (2013) 2 SCC 131. Mere suspicion,
however, strong or probable it may be is no effective
substitute for the legal proof required to substantiate the
charge of commission of a crime.
(v) Hon’ble Supreme Court in the case of Asish Batham vs
State of Madhya Pradesh, reported in AIR 2002 SC
3206, held that Courts dealing with criminal cases at least
should constantly remember that there is a long mental
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distance between ‘maybe true’ and ‘must be true’ and this
basic and golden rule only helps to maintain the vital
distinction between ‘must be true’ and this basic and
golden rule only helps to maintain the vital distinction
between ‘conjectures’ and ‘sure conclusions’ to be arrived
at on the touch stone of a dispassionate judicial scrutiny
based upon complete and comprehensive appreciation of
all features of the case as well as quality and credibility of
the evidence brought on record.
(vi) AIR 1954 SUPREME COURT 637
(vii) (2007) 11 SUPREME COURT 273
(viii) (2012) 1 SUPREME COURT 532
(ix) (2005) 8 SUPREME COURT 370
(x) (2005) 8 SUPREME COURT 380
(xi) (2014) 14 SUPREME COURT 295
(xii) (1999) 3 SUPREME COURT 54
(xiii) (1999) 3 SUPREME COURT 60
(xiv) (2011) 5 SUPREME COURT 708
(xv) AIR 1964 SUPREME COURT 529
(xvi) AIR 1992 SUPREME COURT 2100
(xvii) (2013) 2 SUPREME COURT 131
(xviii) AIR 2002 SUPREME COURT 3206.
(B) POINTS OF ARGUMENT FOR ACCUSED MUKTI PADA ACHARJEE:
Learned counsel for accused Mukti Pada Acharjee has submitted that
there is no evidence on record to show that the phensedyl was exported to
Bangladesh and the Court cannot draw presumption.
Learned counsel for accused Mukti Pada Acharjee in support of his
contention has placed reliance the following decisions:
(i) (2009) 15 Supreme Court Cases 200
(ii) (2009) 6 Supreme Court Cases 587
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(C) POINTS OF ARGUMENT FOR ACCUSED ARIJIT BHATTACHARJEE
Learned counsel for accused Arijit Bhattacharjee in the course of
argument submitted that in the present case no godown register was seized by
the I.O. There was also no transport challan, without having transport challan
how the goods will be exported outside India. The Court cannot presume that
Accused No.4 sold goods outside India.
(D) POINTS OF ARGUMENT FOR ACCUSED CHHANDA DEB
Learned counsel for accused Chhanda Deb in the course of argument
submitted that although the FIR was lodged against more than 15 accused but
the prosecution submitted charge-sheet against 4 accused only including the
present accused and it is the prosecution case that due to misplace/missing of
the original file containing the bid list in respect of the other Drug Distributors,
the investigation of the case is to be confined only against this present four
accused and no investigation was conducted against other accused as mentioned
in paragraph No.17.8 and 17.11 of the final report, which clearly shows that the
prosecution has failed to investigate the case properly and the same vitiates the
prosecution case.
Arpan Das was examined before this Court as PW-6 by the prosecution
side where he developed his statement and deposed that on reaching the
residence of Smt. Chhanda Deb, Mashuk Ahmed and Bipul Dhar had a talk with
Sri Digendra Deb (Brother-in-law of Smt. Chhanda Deb). After sometime Smt.
Chhanda Deb signed on the paper and that was brought from Customs Office by
Mashuk Ahmed. In his evidence-in-chief he also admitted that whatever drug
have been purchased in this case in the names of various Drug Distributors like
Kathia Baba Drug Distributors, Shova Distributors was purchased by Mashuk
Ahmed only for smuggling to Bangladesh.
The CFSL report given by Sr. L. Loganathan (PW-24) states before the
court that due to lack of experience in qualification of the expert supporting the
evidence in matter beyond the realm of handwriting. As such, evidence of such
expert should be discarded. The Scientist is having the qualification of Scientist-
B where in relation to document or handwriting report the expert opinion and the
decision along with statement of Scientist-A is to be recorded. Here scientist A is
eligible. Admittedly PW-24 is Scientist B in the instate case, therefore his opinion
cannot be admitted by this court. Moreover, Sri L. Loganathan PW-24 also
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admitted in his cross-examination that there must be a necessity of two experts
to provide an opinion, but in the instant case only one expert has given the
opinion, which is not admissible in the eye of law for giving conviction of an
accused.
As per Ext.14 Bid List, Chhanda Deb is not the highest bidder. Highest
bidder is Prasanta Das, but he was not impleaded as accused in the case.
(C) POINTS FOR DETERMINATION:
(i) Whether the accused Sri Sagar Kr. Dutta, Sri Mukti Pada
Acharjee, Smt. Chhanda Deb & Sri Arijit Bhattacharjee @
Sanku had committed the offence of criminal conspiracy as
alleged?
(ii) Whether the accused persons had fraudulently and
dishonestly used the documents as genuine in the auction
sale as alleged?
(iii) Whether the accused persons had committed offence U/S
132 & 136 of Custom Act, 1962 as alleged?
(iv) Whether the accused Sri Sagar Kr. Dutta & Sri Mukti Pada
Acharjee, the public servant had committed the offence of
criminal misconduct as alleged?
18. DISCUSSION, DECISION AND REASONS THEREOF:
Let us discuss as to whether the prosecution has able to establish the
charges against the accused persons. Let us discuss the evidence of PWs.
PW-1, Shri B.K. Mahanta, Under Secretary, Ad. V. Section CBEC Deptt.
New Delhi, in his deposition has stated that at present he was serving as Under
Secretary to the Govt. of India in the same post and place. He put his signature
on Ext.1(Sanction order) on behalf of President of India, who is the competent
authority to remove the person, Sri Sagar Kr. Dutta, the then Superintendent
(Disposal) of Custom Divn. Karimganj now Asstt. Director NACEN, Faridabad. The
Hon’ble President of India examined all the documents placed before him
including of the statements of witnesses and after due application of mind, he
accorded sanction for prosecution against the accused Sagar Kr. Dutta. He issued
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the sanction order on behalf of the President of India in due process. Any Under
Secretary or above him are authorised to issue & convey the sanction to
prosecute on behalf of the President of India and in order to that process he
issued and conveyed the same. Ext.1 (in seven sheets) is the said sanction order.
Ext.1(1) to Ext. 1(8) are his signatures thereon with official seal. Ext.2 is the
forwarding letter issued by him in respect of sanction letter in connection with
RC2(A)/2013-SHG forwarding of corrigendum for prosecution of Sagar Kr. Dutta,
the then Superintendent (Disposal) now (AC). Ext.2(1) is his signature thereon.
19. During cross-examination, PW-1 has stated that the President of India
has a separate office at Rashtrapati Bhawan. There are Secretaries posted in the
office of the President of India. There is no paper to show conveying him to issue
sanction letter vide Ext.1. There is no averment in the sanction letter Ext.1 that
the President of India was conveying him to issue Ext.1 after dully & carefully
examining materials, documents including statements of witnesses and after
application of mind in due course.
20. PW-2, Shri Gaigongdin Panmei, Commissioner of Central Excise & Service
Tax, in his statement has stated that Ext.3 (in 6 sheets) is the prosecution
sanction order in CBI Case No.RC02(A)/2013-SHG. Sanction was accorded to
prosecute Mukti Pada Acharjee. The said sanction order was given by him on
07/08/2015. He was the competent person to issue sanction order as well as
removal/termination to Mukti Pada Acharjee, the then Inspector, Custom
(Disposal), Custom Division, Assam now he is Superintendent of Custom, Manu
LCS in the same Division. Ext.3(1) to Ext.3(7) are his signatures on the sanction
order. He issued sanction order on the basis of the materials placed before him
after application of his independent mind in due course. Ext.4 is the forwarding
letter dated 07/08/2015 in connection with RC02(A)/2013-SHG by which Mr.
Lalhmingmawia Ralte, the then Deputy Commissioner (P & V) as forwarded
certificate dated 07/08/2015 in respect of disciplinary authority sent to the Head
of Branch, CBI, ACB, Shillong. Ext.4(1) is the signature of Mr. Lalhmingmawia
Ralte, the then Deputy Commissioner (P & V) which He identifies. Ext.5 is the
certificate issued by the appointing & disciplinary authority (he) certifying that he
was the competent authority to appointment & removal of Mr. Mukti Pada
Acharjee from his service. Ext.5(1) is his signature thereon with seal.
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21. During cross-examination PW-2 has stated that he is the competent
sanctioning & disciplinary authority of Mukti Pada Acharjee. A disciplinary
proceeding has been initiated against accused Mukti Pada Acharjee. He was
aware about the charge against Mukti Pada Acharjee in the disciplinary
proceeding. The charge of the disciplinary proceeding as well as in the present
criminal proceeding are based on the same facts. He just completed 4(four)
years in the month of June in the Northeast Region of Central Excise Customs &
Service Tax. He issued the sanction order against the accused on the basis of
materials placed before him. In his 4 (four) years tenure in Northeast, he does
not find such incident. Auctioning of this kind of substance is a common
phenomenon of their department at that time. Now auctioning of such substance
is stopped about 2(two) years back in pursuant to the order of the Hon’ble
Supreme Court. But he cannot recollect the exact citation of the said case and
also the name of the party thereof. The observation made in Para 21 of sanction
order regarding presumption under section 11L of the Custom Act regarding
presumption of export is based on documentary materials placed before him. The
officer mentioned in Sub-section (3) of section 11L of Custom Act is a CBI officer.
He cannot recall specifically who is the officer empowered to verify u/s 11L of
Custom Act. There was no verification of goods as provided u/s 11L of Custom
Act in this case. In his sanction order he does not mention about incurring
financial loss in this case. In a suggestion put to him he admitted that no
financial loss incurred to the department in this case. In their border areas there
are customs stations. It is their duty to seize the goods in the border areas which
are illegally exported. He does not have knowledge regarding recovery of
phensedyl bottles involved in this case by any custom authority after auction.
The presumptions U/S 11L of Custom Act is a rebuttable presumption provided
that satisfactory explanation & reasons by the officer concerned are given. He
does not seek for any explanation from the concerned officer accused No.2-Mukti
Pada Archarjee. In his opinion, since accused Mukti Pada Archajee has violated
the provisions of Section 136 of Custom Act, the provisions U/S 13(1) & 13(2)(d)
of PC Act would be attracted. He has not come across any direct materials which
would show or indicate direct involvement of the accused Mukti Pada Archarjee
in act of export of phensedyl involved in this case. Clear violation of mere
guidelines not normally amount to any criminal offence. In this case there is a
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clear violation of law. There is a distinction between Guidelines and law and
guideline flows from the law. He is unaware whether guideline issued by the
department prescribed any criminal offence. Criminal proceeding and disciplinary
proceeding were initiated simultaneously against the accused No.2-Mukti Pada
Acharjee. In his knowledge there is no instance of punishing any officer for
violation of U/S 136 of Custom Act in the Northeast Region during his tenure. He
is unaware specifically on punishment of an officer for violations of the above
section in India also.
22. In cross-examination, PW-2 has further stated that if accused No.2 is not
at all involved in illegal export, the auction purchaser could possibly
independently involved in the illegal export. He does not come across direct
material to show that auction purchasers have illegally exported the goods. He
cannot recollect now under what sections of law he issued the sanction order
against the accused No.2. Later on it is said that the sanction U/S 13(1)(a) of the
P.C. Act. According to him, sanction order is a mandatory for initiation of
proceeding against the accused No.2 who being the Central Govt. Servant
money was deposited in the Govt. Exchequer from the sale proceed of the
auction in question. He has no idea whether money deposited in the Govt.
Exchequer received from auction purchasers. No document was produced before
him to show about the source of money deposited. There is no allegation that
the auction in the case fetched less money than in earlier auction. The rate for
the auction of the phensedyl was fixed by the Joint Pricing Committee. In each
case or group of cases, the Committee fixes the rate. The Chairman of the
Committee is higher in rank than that of the accused No.2. Inspectors are
normally not the member of the pricing Committee. He had gone through the
documents placed before him regarding verification of accounts of the auction
purchasers. He cannot recollect who had prepared the verification report.
According to section 2 of sub-section (34) the proper officer would be assigned
those functions under the Custom Act either by the Board or by the
Commissioner of Customs. No other authority in the department, except Board or
Commissioner of Customs can assign such power to a “Proper Officer”. According
to him, the Central Govt. also can assign this power to any other authority or
agency like BSF, State Police etc. According to him, the Central Govt. can assign
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this power to CBI. According to him, if the Central Govt. decides to assign the
power to CBI officer, such CBI officers can also carry out the functions of
Customs Officers. In this case Central Govt. has not particularly assigned any CBI
officer to carry out specific functions of Customs officer. The Disposal Officers are
the proper officer in this case. The Disposal officer means Superintendent or
Inspector of Customs. In a suggestion put to him he denied that this is not a
case of illegal export and also criminal conspiracy against the accused and also
the allegations levelled against the accused are false & fabricated. In a
suggestion put to him he denied that sanction order was issued without any basis
and without application of mind.
23. PW-3, Shri Monmath Kumar Nath, Chief Commercial Clerk, Karimganj
Railway Station, during the year 2014 he was posted as Sr. Commercial Clerk,
Karimganj Railway Station. On 18/09/2014 he was directed by the Station
Master, Karimganj to go to Circuit House to meet CBI official as witness. Ext.6 is
the seizure memo dated 18/09/2014, by which two drug licences were seized
from Sri Ritendra Deb, brother-in-law of Chhanda Deb by S.T. Khaute, Inspector
of police, CBI, ACB, Shillong. Ext.6(1) is his signature on the seizure list. Ext.7 is
the seizure memo dated 18/09/2014, by which two drug licences were seized
from Sri Arijit Bhattacharjee, Proprietor of Wings Drug Distributor by Mr. S.T.
Khaute, Inspector of police, CBI, ACB, Shillong. Ext.7(1) is his signature on the
said seizure memo. Ext.8 is the seizure memo dated 18/09/2014, by which
certified copies of two drug licences were seized from one Sri Prasanta Das, M/S
S.S. Drug Distributor by S.T. Khaute, Inspector, CBI, ACB, Shillong. Ext.8(1) is his
signature on the said seizure memo. Ext.9 is the seizure memo dated
18/09/2014, by which two drug licences reflected therein were seized from Sri
Anup Kr. Sen @ Bijoy Sen, Proprietor of M/S Sen Drugs Distributor by Sri S.T.
Khaute, Inspector, CBI, ACB, Shillong. Ext.9(1) is his signature thereon. Ext.10 is
the seizure memo dated 18/09/2014, by which two drug licences and one sheet
of Treasury Challan were seized from one Sri Chinmoy Roy, Proprietor of M/S
Rupam Drugs Distributor by S.T. Khaute, Inspector, CBI, ACB, Shillong. Ext.10(1)
is his signature thereon.
24. During Cross examination for accused Chhanda Deb, PW-3 has
stated that the seizure memos were prepared in his presence. He does not know
16
the person named Ritendra Deb. He checked the licence number mentioned in
Ext.6 of Smti. Chhanda Deb. The seizure memo prepared by seizing the licence
from Ritendra Deb, but the licence belongs to Smti. Chhanda Deb.
25. During Cross examination for accused Arijit Bhattacharjee @
Sanku, PW-3 has stated that he went to Circuit House to meet the CBI official as
per instruction of Station Master, Karimganj Railway Station. Never he saw any
drug licence before going to the Circuit House on that particular day. From whom
drug licences were seized he cannot say. He does not know who is Arijit
Bhattacharjee.
26. During Cross examination for accused Mukti Pada Acharjee, PW-3
has stated that the hand writing in the seizure memos of Sri S.T. Khaute,
Inspector, CBI, ACB, Shillong. The name of the witness written in block letter
below Ext.6(1) written by Inspector, S.T. Khaute. The name of second witness
Bappi Chakraborty was also written in block letter by Inspector S.T. Khaute. In
Exts.7,8, 9 & Ext.10 also the names were written in block letter by S.T. Khaute,
Inspector. The seizure memos Exts.7, 8 & 9 had been prepared by S.T. Khaute,
Inspector CBI in his presence. He does not know the person from whom the drug
licences were seized. The Inspector Sri S.T. Khaute never briefs him why he had
been called to the Circuit House, Karimganj. He is unaware about Form 20-B of
drug licence mentioned in the seizure list.
27. During Cross examination for accused Sagar Kr. Dutta, PW-3 has
deposed that the documents which were seized vide Ext.6 to Ext.10 were not
available before the court on the day of his deposition. He does not know what
documents were seized by the Inspector, CBI vide Ext.6 to Ext.10. He does not
know the contents of Ext.6 to Ext.10. He did not state to the CBI about the
seizure memos and also number of documents & details of documents as well as
the documents from whom documents were seized. He does not know the
identity of the persons from whom documents were seized.
28. PW-4, Shri Bappi Chakraborty, Ticket Collector, Karimganj Railway
Station, has stated in his deposition that during the year 2014, he had been
posted as Junior Ticket Collector, Karimganj Railway Station. He had been called
for to Karimganj Circuit House to be witness of seizure proceeding conducted by
17
Inspector, CBI, ACB, Shillong. The Station Manager asked him to go to the
Karimganj Circuit House for the purpose to be a witness at CBI case. In his
presence seizure memos were prepared by Inspector CBI, ACB, Shillong. He had
verified the seizure memos at the time of preparation. Ext.6 is the seizure memo
dated 18/09/2014, which was prepared at Karimganj Circuit House in his
presence. Vide Ext.6 two drug licences were seized from Ritendra Deb, brother-
in-law of Smti. Chhanda Deb in his presence by Inspector, S.T. Khaute, CBI, ACB,
Shillong. Ext.6(2) is his signature thereon. Ext.7 is the seizure memo dated
18/09/2014, by which two drug licences were seized from Sri Arijit Bhattacharjee,
Proprietor of Wings Drug Distributor by Mr. S.T. Khaute, Inspector of police, CBI,
ACB, Shillong. Ext.7(2) is his signature on the said seizure memo. Ext.8 is the
seizure memo dated 18/09/2014, by which certified copies of two drug licences
were seized from one Sri Prasanta Das, M/S S.S. Drug Distributor by S.T. Khaute,
Inspector, CBI, ACB, Shillong. Ext.8(2) is his signature on the said seizure memo.
Ext.9 is the seizure memo dated 18/09/2014, by which two drug licences
reflected therein were seized from Sri Anup Kr. Sen @ Bijoy Sen Proprietor of
M/S Sen Drugs Distributor by Sri S.T. Khaute, Inspector, CBI, ACB, Shillong.
Ext.9(2) is his signature thereon. Ext.10 is the seizure memo dated 18/09/2014
by which two drug licences and one sheet of Treasury Challan were seized from
one Sri Chinmoy Roy, Proprietor of M/S Rupam Drugs Distributor by S.T. Khaute,
Inspector, CBI, ACB, Shillong. Ext.10(2) is his signature thereon.
29. During cross-examination for accused Mukti Pada Acharjee, PW-4
has stated that he does not know about the Form-20-B mentioned in the seizure
memo in Ext.6 to Ext.10. He did not check & verify the documents which were
seized from Ext.6 to Ext.10. He put his signature on the seizure list on asking him
to put signature by the Inspector, CBI on the seizure list. He did not verify the
persons from whom documents were seized.
30. During cross-examination for accused Sagar Kr. Dutta, PW-4 has
admitted that he did not state to the CBI about the number of seizure memos
and the number and details of documents seized by CBI vide Ext.6 to Ext.10.
Although, there was a written instruction of Station Master, but that order was
not shown to him. He does not know how the persons from whom documents
were seized came to the Circuit House.
18
31. During cross-examination for accused Arijit Bhattacharjee @
Sanku, PW-4 stated that he cannot identifies the persons in connection with the
document i.e. Ext.7 was seized from whom & why. He put signature on the
seizure memos as he had been instructed by the Inspector, CBI, ACB, Shillong.
32. During cross-examination for accused Chhanda Deb, PW-4 stated
that the CBI Inspector prepared the seizure list and he put his signature on the
seizure list without knowing the names of documents and also the names of the
licence holders. He does not know the reason as to why the papers were seized
from Ritendra Deb which belonged to Chhanda Deb. He had not verified to
ascertain the fact that Ritendra Deb and Chhanda Deb they are the same person.
Without knowing the identity of the persons from whom document was seized he
put his signature on the seizure list.
33. PW-5, Shri Haripada Roy, Assistant Commissioner, Central Excise &
Service Tax Audit Commissionerate to the Govt. of India, has stated that in the
year 2013, he had been posted as Superintendent (Disposal) in the office of
Deputy Commissioner, Custom Division, Karimganj. The seizure with regard to
specified goods and all goods is done by their field staffs. At the time of seizure
of goods their officers are to prepare inventory of the goods seized. The name of
the goods & quantity, value are entered in the inventory prepared by their
officers. If it is a claim case the officers are to prepare inventory in three copies
(03 sets). One copy thereof is to be furnished to the party itself. Another copy is
to be given to the disposal section if goods are sent to store after making entry
in the Godown Receipt Register. The goods are stored in the godown after
observing all formalities. In case of disposal of the seized goods they are to wait
adjudication of the cases. After adjudication they are to wait 60 days for appeal
against the adjudication process before disposal. The adjudication process is
done by Superintendent, AC/DC, Additional Commissioner/Commissioner of
Central Excise. The adjudicatory power depends on the financial power of the
concerned officers. Before disposal they are to send the list of the seized goods
to the Headquarter office for approval of pricing committee. The pricing
committee would fix the value of the seized goods and they are to send order
accordingly. In case of specified goods like phensedyl they are send the goods
for testing and certification to the drug controlling authority. It is the duty of the
19
drug controlling authority to ascertain the alleged goods phensedyl for human
consumption or not. Again after obtaining the report of the drug controlling
authority they are to send a letter to the Headquarter for approval of
Headquarter for disposal. Without the permission and approval, nothing can be
disposed of. In the approval letter it would be mentioned the specified goods
would be in auction sale or otherwisely to be disposed of. Before auction, public
notice is given specifying the intention of putting auction in the office notice
Board as well as in paper and by mike if the Deputy Commissioner desires.
34. Ext.11 is the seizure memo dated 26/08/2013 by which following
documents are seized from him by CBI officers:-
1) one file No.viii (25) 1/GO/KXJ/10 containing 392 pages with note
sheets from page 1 to 14,
2) one file No.viii (25) 2/GO/KXJ/10 on the subject (Correspondence on
disposal of goods by way of quotations/auction-cum-tender/direct sales in
respect of phensedyl cough linctus etc containing 346 pages with note
sheets from 1 to 10,
3) TR-5 book bearing Serial No.31601 to 31700,
4) TR-5 book bearing Serial No.23101 to 23200.
Ext.11(1) & Ext.11(2) are his signatures with seal & date on the said
seizure memo.
Ext.12 is the Ministry of Finance Deptt. downloaded letter No.MOF (DR)'s
letter F.No.549/8/80-LCI dated 18//12/1981 with regard to disposal of seized and
confiscated drug formulation - instructions regarding and also subsequently
certified by Superintendent (SIU-VIG Custom Preventive NER Shillong) dated
12/09/14.
Ext.13 (in 04 sheets) is the instruction letter of the Govt. of India, Ministry
of Finance on controlling export & import of goods, the procedures thereof. The
Central Government vide Notification No.31/2008- Customs (NT) dated
25/03/2008 has specified inland area within 50 km in width from India's land
20
border with Bangladesh falling within the territory of Tripura, Assam, Meghalaya,
Mizuram under the jurisdiction of Northeast Commissionerate as specified area.
Further the Central Government of India vide Notification No.35/2008-
Customs (NT) dated 02/04/2008 has notified "Drugs formulation containing
codeine or its salts" as the goods in respect of which special measures for the
purpose of checking the illegal export and facilitating detection of the said goods
which are lilkely to be illegally exported shall be taken in the area specified in
India's land border falling within the territories mentioned above.
Where a part of any village or city falls within the specified area as
mentioned above, the whole of such village, town or city shall notwithstanding
that the whole of it is not within the area of specified area be deemed to be
included in such specified area. Ext.13(1) to Ext.13(4) are his signatures with
seal & date thereon. The detailed procedure is reflected in Ext.13 itself.
Ext.14 is the 3rd Bid list Serial No.20/10-11 dated 05/08/10. Ext.14(1) is
the signature of Mr. M.P. Acharjee, Inspector, Disposal, Custom Division,
Karimganj with date & seal who assisted in the auction he identifies his
signature. Ext.14(2) is the signature of Mr. B.B. Adhikari, Deputy Commissioner,
Custom Division, Karimganj with seal & date who supervised the auction and he
identifies his signature. Ext.14(3) is the signature of Sri S.K. Dutta,
Superintendent (Disposal), Custom Division, Karimganj who conducted the
auction with seal & date he identifies his signature.
Ext.15 is the 3rd Bid list Serial No.27/10-11 dated 03/09/10. Ext.15(1) is
the signature of Mr. M.P. Acharjee, Inspector, Disposal, Custom Division,
Karimganj with date & seal who assisted in the auction. He identifies his
signature. Ext.15(2) is the signature of Mr. B.B. Adhikari, Deputy Commissioner,
Custom Division, Karimganj with seal & date who supervised the auction and He
identifies his signature. Ext.15(3) is the signature of Sri S.K. Dutta,
Superintendent (Disposal), Custom Division, Karimganj who conducted the
auction with seal & date he identifies his signature.
Ext.16 is the TR file Counter foil No.31640 date 05/08/2010 showing
receipt of Rs.748176/- from Chhanda Deb, M/S Kathia Baba Drugs Distributor
21
Station Road, Karimganj. Ext.16(1) is the signature of Mr. M.P. Acharjee,
Inspector, Disposal with date & seal which he identifies. Ext.17 is the TR file
Counter foil No.31647 dated 03/09/2010 showing receipt of Rs.13 lacs from M/S
Wings Drugs Distributor Settlement Road, Karimganj. Ext.17(1) is the signature
of Mr. M.P. Acharjee, Inspector, Disposal with date & seal which he identifies.
Ext.18 is the TR-6 Challan No.18/10-11 dated 06/08/2010 of Rs.748176/-.
Ext.18(1) is the signature of Mr. M.P. Acharjee, Inspector, Disposal Customs
Division, Karimganj with date & seal which he identifies.
Ext.19 is the TR-6 Challan No.25/10-11 dated 03/09/2010 of Rs.13 lacs.
Ext.19(1) is the signature of Mr. M.P. Acharjee, Inspector, Disposal Customs
Division, Karimganj with date & seal which He identifies.
Ext.20 is the notice for auction sale dated 16/07/2010 with regard to sale
of 18627 bottles of Phensedyl, linctus and 72 bottles corex cough syrup issued by
Superintendent, Disposal, Custom Division, Karimganj. Ext.20(1) & Ext.20(2) are
the signatures of Sri S.K. Dutta, Superintendent (Disposal), Custom Division,
Karimganj, Assam which he identifies.
Ext.21 is the notice for auction sale dated 18/08/2010 with regard to sale
of 32484 bottles of Phensedyl of linctus issued by Superintendent, Disposal,
Custom Division, Karimganj. Ext.21(1) & Ext.21(2) are the signatures of Sri S.K.
Dutta, Superintendent (Disposal), Custom Division, Karimganj, Assam which he
identifies.
Exts.14, 15, 20 & Ext.21 are available in file No.VIII (25)2/GO/KXJ/10 (D
42) correspondence on disposal of goods by way of quotation/auction-cum-
tender/direct sale in respect of phensedyl cough linctus etc.
Ext.22 is the said file containing in Exts.14, 15, 20 & Ext.21.
Karimganj town is a specified area since it falls within 50km from India’s
land border with Bangladesh. Phensedyl contains Codeine and therefore it comes
within the definition of specified goods.
22
35. During cross-examination for accused Sagar Kr. Dutta, PW-5 has
admitted that there is always pressure on the disposal section to dispose of the
seized medicines as well as all other seized goods from the superior authority.
The Pricing committee at the Head Quarter of Excise Department (Disposal
Section, Shillong) fixes the rate for disposing the medicines and other goods. The
Phensedyls relevant to the instant case were disposed of as per the rate given by
the Pricing Committee. This witness has also admitted that in the instant case
several attempts were made by the Superintendent of Disposal Sri Sagar Kr.
Dutta (Accused No.1) to dispose of the seized Phensedyls as per the directive of
the authority but due to non-getting off served price fixed by the Pricing
Committee, those bids were cancelled.
Ext.22(A) (at page-142 of Ext.22:File) is a letter dated 18.06.2010 written
by Sagar Kr. Dutta addressing Inspector of Drugs, Karimganj District, Assam
requesting inspector of sample of medicine Phensedyl Cough Linctus for the
purpose of testing which was duly received by the Inspector of Drugs. Similarly,
Ext.22(B) (at page-104 of Ext.22:File) is a letter dated 24.05.2010 written by
Sagar Kr. Dutta addressing Inspector of Drugs, Karimganj District, Assam
requesting inspector of sample of medicine Phensedyl Cough Linctus for the
purpose of testing which was duly received by the Inspector of Drugs. Ext.22(A)
and Ext.22(B) show that Sagar Kr. Dutta (Accused No.1) fulfil the requirement of
approaching the Drug Inspector of Government of Assam, and he has performed
his duty properly in this respect.
In a suggestion put to PW-5 he denied that there is no specific guideline
stating on what conditions auction has to be made.
In Disposal Manual, guidelines are there, but he has not seen the said
guideline in the Court. No Disposal Manual was seized from him.
He stated that from Ext.20 and Ext.21, it appear that Sagar Kr. Dutta
cited all the conditions required for auction sale in the notice for auction sale.
He does not remember if there is no specific rule or guideline for
collecting Rs.50,000/- as security from the intending bidders. The security of
23
Rs.50,000/- as mentioned in Ext.20 and Ext.21 is only to bind the successful
bidder to pay the bid amount. It is returned to the unsuccessful bidder to pay the
bid amount. It is returned to the unsuccessful bidders and the security amount
will be adjusted to the successful bidders on completion of the bid. If the
successful bidder pays the full bid amount then the security amount will be
returned. Security is not revenue to the customs department.
He further stated that achieving a successful auction is the primary object
of any auction.
Ext.20 and 21 were issued by Sagar Kr. Dutta himself, so there is no
question of violation of those notices by him.
Ext.14 and 15 bid list show that Rs.7,48,176/- and Rs.13,00,000/- had
been fetched in the auction as highest bids respectively.
Ext.16 and 17 TR5 receipts show that the successful bidder namely
Chhanda Deb of M/s Kathiyababa Drug Distributors and M/s Wings Drugs
Distributors respectively has paid the aforesaid amounts against their bid. Ext.18
and 19 shows that accused public servants deposited the entire amount so
collected through the respective bids as aforesaid in the Govt. account.
Therefore, there is no loss caused to the govt. or Customs department by the
aforesaid two bides rather govt. earned revenue. Thus, the accused public
servant performed their duty properly.
In the instant case along with the public notice, the auction notice was
also published in the local news paper “Dainik Jugasankha” of Silchar which is
available in Ext.-22 File (at page-154) which is Ext.22(C).
Phensedyl cough Linctus is a medicine and it has expiry period. Ext.A is
MoF (DR) letter F No.711/31/83-LC(AS) dated 22/05/1984 regarding
seized/confiscated goods-review of the list of perishable goods-supplementary
instructions. As per Ext.A vide category-II medicines and drugs which remain
efficacious only for limited period has to be disposed of within 06 months from
the date seizure or where the date of expiry is indicated well before that date.
Phensedyl cough Linctus falls under this category.
24
Ext.B is the forwarding along with inspection report on the audit of
receipt of refunds pertaining to the Commissioner of Customs, NER, Shillong for
the period from 01/04/2001 to 31/03/2003 (11 sheets). Ext.B(1) is the para 10
(Part-III) of the report which indicates findings regarding non-disposal of the
seized medicines and consequent loss of Government revenue due to such non-
disposal.
36. During cross-examination for accused Chhanda Deb, PW-5 has
stated that he does not know prior to this case that any auction was took place.
Prior to his joining at Karimganj he had been in Guwahati Customs Adjudication
branch. The auction took place before his joining at Karimganj. Apart from the
auction procedure in a normal case, the procedure adopted in this auction is not
known to him, because at the relevant time he was not there. He cannot say
now whether in this particular case such entry was made in the Godown Register
because he was not there in the particular point of time. He had not seen the
Godown Register in the court on the day of his deposition. He has no knowledge
who was the highest bidder and the parties (other bidders) in this particular
case. He also does not know M/S Kathia Baba Drug Distributors as well as its
Proprietor. The signature of accused Chhanda Deb in Ext.14 is not acquainted to
him.
37. During cross-examination for accused Arijit Bhattacharjee @
Sanku, PW-5 stated that he cannot say whether the amount was received from
Arijit Bhattacharjee, Proprietor of Wings Drug Distributor or not. No challan is
required for carrying the seized articles from godown to a particular destination
except TR6/TR5. He was not aware about the entire facts of this case and he
was talking about the general procedures which are to be followed in the case of
seizure/auction/disposal etc.
38. During cross-examination for accused Mukti Pada Acharjee,
Phensedyl cough Linctus is a medicine and it has expiry period. Ext.A is
MoF (DR) letter F No.711/31/83-LC(AS) dated 22/05/1984 regarding
seized/confiscated goods-review of the list of perishable goods-supplementary
instructions. As per Ext.A vide category-II medicines and drugs which remain
25
efficacious only for limited period has to be disposed of within 06 months from
the date seizure or where the date of expiry is indicated well before that date.
Phensedyl cough Linctus falls under this category.
According to him, the auction in question the guidelines referred to in
Ext.12 has not been violated. One cannot presume what would be the price of a
commodity in other country based on a price of the said commodity prevailing in
India. He has not come across any material that the price of Phensedyl is higher
in Bangladesh than India while he was working in Customs Department at
Karimganj.
As per Ext.14, the reserve/fair price was fixed by Joint Pricing Committee,
Shillong bearing No.A/L No.21 dated 02/03/2010. As per Ext.14, the reserve
price was fixed on 02/03/2010. Ext.14(2) is the signature of the then Deputy
Commissioner. As per Ext.14, the Deput Commissioner, Customs Division,
Karimganj had supervised the auction on 05/08/2010 and he was also present as
per Ext.14. Sri B.B. Adhikari was the then Deputy Commissioner, Customs,
Karimganj. He does not know whether B. B. Adhikari was an accused in this case.
As per Ext.15, the reserve/fair price was fixed by Joint Pricing Committee,
Shillong bearing No.A/L No.21 dated 02/03/2010. As per Ext.15, the reserve
price was fixed on 02/03/2010. Ext.15(2) is the signature of the then Deputy
Commissioner. As per Ext.15, the Deputy Commissioner, Customs Division,
Karimganj had supervised the auction on 03/09/2010 and he was also present as
per Ext.15. Sri B.B. Adhikari was the then Deputy Commissioner, Customs,
Karimganj.
The third bid mentioned in Ext.14 to mean that earlier two bids of the
same Phensedyl were cancelled and was in the third attempt that Phensedyl
could be disposed of in auction.
The third bid mentioned in Ext.15 to mean that earlier two bids of the
same Phensedyl were cancelled and was in the third attempt that Phensedyl
could be disposed of in auction.
The first two bids in respect of Ext.14 and Ext.15 were cancelled because
prices fetch were lower than the price fixed by the JPC.
26
As per Ext.16, the Customs Division, Karimganj received a sum of
Rs.7,48,176/- in cash from the bidder Chhanda Deb, Proprietor of M/S Kathia
Baba Drug Distributor for the auction held on 05/08/2010.
Similarly as per Ext.17, the Customs Division, Karimganj received a sum
of Rs.13,00,000/- in cash from the bidder Arijit Bhattacharjee, Proprietor of
Wings Drugs for the auction held on 03/09/2010.
The money amounting to Rs.7,48,176/- in cash received from auction
held on 05/08/2010 was deposited in State Bank of India, Karimganj Branch
under the Head of Customs in Account No.00370029 on 06/08/2010 vide Ext.18
through Sri M.P. Acharjee (Accused No.2).
The money amounting to Rs.13,00,000/- in cash received from auction
held on 03/09/2010 was deposited in State Bank of India, Karimganj Branch
under the Head of Customs in Account No.00370029 on 03/09/2010 vide Ext.19
through Sri M.P. Acharjee (Accused No.2).
The amount which was received from the bidders from both the auction
were deposited in the bank account of the Customs Deptt. He was not aware
whether the accused No.1 and 2 got any pecuniary benefit from the auctions.
As per Ext.20 notice for auction sale on 05/08/2010 which was issued on
16/07/2010 were circulated to Whole Sale Drug licence holders/Distributors. A
copy of such notice was also forwarded to Inspector of Drugs, Karimganj Branch
for information and action as per Ext.20.
As per Ext.21 notice for auction sale on 03/09/2010 which was issued on
18/08/2010 were circulated to Whole Sale Drug licence holders/Distributors. A
copy of such notice was also forwarded to Inspector of Drugs, Karimganj Branch
for information and action as per Ext.21.
During his tenure at Karimganj he never came across any information
regarding any nexus between the Customs officials and the Drug Distributors
/auction purchasers regarding fraudulent auction of Phensedyl or other goods of
the Customs Deptt., which were auctioned. As per his knowledge, Customs
Deptt., Disposal Section is not obliged to maintain any record of the manner and
27
method of disposal of the Phensedyl after those have been disposed of by
auction to third party.
39. PW-6, Shri Arpan Das, Businessman has stated in his deposition that he
was doing flying business. He used to purchase goods from Customs Office such
as toys, garments and small electronic items through auction. Big and costly
items were purchased by Sri Mashoq Ahmed since he had good relation with M.P.
Acharjee and S.K. Dutta of Customs Department. Long time back Sri M.P.
Acharjee asked him to lead Sri Bipul Dhar and Sri Mashoq Ahmed to the house of
Smti Chhanda Deb and Digendra Deb (M/s Kathia Baba Drugs Distributors) since
he konws their house, for obtaining her signature on some papers. Sri M.P.
Acharjee also handed over some custom papers for obtaining the signature of
Smti Chhanda Deb. On reaching the residence of Smt. Chhanda Deb, Mashoq
Ahmed and Bipul Dhar had a talk with Sri Digendra Deb, brother-in-law of Smti
Chhanda Deb. After sometime, Smti. Chhanda Deb signed on the paper that was
brought from Customs Office by Mashoq Ahmed. After obtaining her signature
both Mashoq Ahmed and Bipul returned to the Customs Office and he left for his
home. Sri M. P. Acharjee and Mashoq Ahmed had a good relationship and
Mashoq Ahmed was running business as a leader. Whatever drugs have been
purchased in this case in the names of various drugs Distributors like Kathia Baba
Distributors and Shova Distributors, was purchased by Mashoq Ahmed only for
smuggling to Bangladesh. The documents provided by M.P. Acharjee to Mashoq
Ahemd was TR-5 and Bid list. His statement was recorded by the Magistrate.
Ext.23 is his statement given U/S 164 of Cr.P.C. and Ext.23(1) & Ext.23(2) are
his signatures. He has given his said statement voluntarily.
40. During cross-examination for accused Sagar Kr. Dutta, PW-6 has
stated that he did not state that Sri M.P. Acharjee also handed over some custom
papers for obtaining the signature of Smti Chhanda Deb and that on reaching the
residence of Smti. Chhanda Deb, Mashoq Ahmed and Bipul Dhar had a talk with
Sri Digendra Deb, brother-in-law of Smti. Chhanda Deb and that after sometime
Smti. Chhanda Deb signed on the paper that was brought to Customs Office by
Mashoq Ahmed and after obtaining her signature both Mashoq Ahmed and Biput
returned to the Customs Office and he left for his home. He does not have any
proof to show that the medicines/drugs purchased by Kathia Baba Drugs
28
Distributor and Shova Distributor were purchased by Mashoq Ahmed or that
these were illegally smuggled to Bangladesh. He did not have good relation with
M.P. Acharjee.
41. During cross-examination for accused Chhanda Deb, PW-6 has
stated that he knows M.P. Acharjee as he used to visit the Customs office.
Mashoq Ahmed also used to participate in auction under the Customs
Department; as such, he is acquainted to him. Smt. Chhanda Deb put her
signature on the papers given by Mashoq Ahemd in his presence. Mashoq Ahemd
took all the initiatives regarding participating in auction in the name of M/s Kathia
Baba Drug Distributor and Chhanda Deb was not aware about it. He has not
stated before the I.O. and his statement U/S 164 of Cr.P.C. that Mashoq Ahmed
and Bipul Dhar carried TR-5 and Bid list to the residence of Chhanda Deb for
obtaining her signature.
42. During cross-examination for accused Arijit Bhattacharjee @
Sanku, PW-6 stated that Mashoq Ahmed was the main person in running the
Syndicate of drug business.
43. During cross-examination for accused Mukti Pada Acharjee, PW-6
stated that he has been knowing Sri M.P. Acharjee probably since last 5 years.
He has not stated in Ext.23 on which paper the signature was to be taken. When
he signed on Ext.23, he did not read the contents and without knowing the
same, he put his signature on Ext.23. He was not aware what was the contents
of Ext.23. He is aware about the presence case in which he is deposing before
this court.
He had no good relation with the accused. No.2, M.P. Acharjee. He had a
very good relation with Mashoq Ahemd. He had not tried to implicate Mashoq
Ahemd in any criminal case. He has never deposed earlier in any criminal case.
He is not aware about the process of auction of Phensedyl by the Customs
Department, Karimganj. Since the auction is closed now, he has not visited
Customs Department for last 3 years.
44. PW-7, Shri Chinmony Roy, Proprietor of M/s Rupam Drugs Distributors at
Karimganj has stated in his deposition that he was the Proprietor of M/s Rupam
29
Drugs Distributors at Karimganj, Silchar Road. He never visited in any Customs
Office and never attended in any auction so there is no question of purchasing
Phensedyl from Customs through auction.
Ext.15 is the bid list dated 03.09.2010. On the said bid list Ext.15(4) is the
signature in his name; but the said signature is not him.
Ext.24 is the bid list dated 20.05.2010. On the said bid list Ext.24(1) is the
signature in his name; but the said signature is not him.
Ext.25 is the bid list dated 02.07.2010. On the said bid list Ext.25(1) is the
signature in his name; but the said signature is not him.
His statement was recorded by the Magistrate. Ext.26 is his statement
given U/S 164 of Cr.P.C. and Ext.26(1) is his signature with date. He has given
his said statement voluntarily.
Ext.27 (in 02 pages) are his specimen signature and handwriting taken in
connection with this case. These signatures/handwritings were taken by I.O., CBI
at Circuit House, Karimganj. His signatures/handwritings were taken in presence
of two independent witnesses. Ext.27(1) and Ext.27(2) are his signatures with
address taken in lieu of giving his signatures and handwritings.
Ext.28 is the photo copy of Income Deptt. PAN Card No.AHVPR3947H in
his name. However he has not provided his PAN Card to any of the Customs
officials for any official purpose. They may have collected the same from the
office of Inspector of Drugs, Karimganj because the said office has the files of all
Drugs Distributors who have applied for Drug licence as well as their renewals.
Bellow his PAN Card is the photocopy of Treasury Challan for renewal of his Drug
licences for 2007 to 2011. Treasury Challan also bears his signature which is
Ex.28(1) & Ext.28(2).
Ext29 (in 03 pages) is the photo copy of his Drug Licence No.KMJ/3273
and KMJ/3274 dated 26.08.2002 in form 20-B, Rule 61(1) and form 21-B Rule
61(2) of Drug Control Act and Licencing Authority , This licences was issue to him
by Drugs Controller and Licencing Authority, Assam, Hengrabari, Guwahati.
However he has not provided his licence copy to any of the Customs officials for
30
any official purpose. They may have collected the same from the office of
Inspector of Drugs, Karimganj because the said office has the files of all Drugs
Distributors, who have applied for Drug licences as well as their renewals.
45. During cross-examination for accused Arijit Bhattacharjee @
Sanku, PW-7 has stated that he has not lodged any complaint/FIR after knowing
the fact and somebody has put signatures. He has never participated in auction
conducted by Customs Department. He has no personal knowledge about the
case.
46. During cross-examination for accused Chhanda Deb, PW-7 has
admitted that in the office of Inspectors of Drugs, documents were scattered
around so, he has doubt that his documents may be collected from that office.
Drugs licences are renewed in every 5 (five) years.
47. During cross-examination for accused Sagar Kr. Dutta, PW-7
admitted that he is the Proprietor of Rupam Drugs Distributor. He is the
custodian of his Drugs licences and PAN Card. No other person to access to his
said documents. Ext.28(1) and Ext.28(2) are his signatures on Ext.28. Although
all the signatures are his, there are differences in both the signatures in writing
the alphabet. Customs officers are not the employee of the office of the Drugs
Inspector, Karimganj.
48. During cross-examination for accused Mukti Pada Acharjee, PW-7
stated that since 2002, he is in the business of drugs distributor and is still going
his business. He was never aware that Customs Department used to auction
seized Phensedyl.
He was not aware whether other drugs distributors also used to purchase
Phensedyl in auctions conducted by Customs Department. He was aware that
forging of signature is an offence and unauthorized use to drugs licence is also
an offence. He has not lodged any FIR regarding forgery of his signature as well
as unauthorized use of drug licence even after coming to know about them.
He is not aware whether somebody has obtained Xerox copy of his drug
licence and PAN Card. At times stockists of drugs companies used obtain copies
31
of his drug licence and PAN Card for business purpose. He usually put his
signature in the Xerox copies of his drug licence and PAN Card when the same
were issued to the Stockists. There is no possibility that those stockists night
have used his drug licence and PAN Card since his signatures appeared on the
Xerox copies. There is a possibility that after erasing those signatures photo
copies of his drug licence and PAN Card could be made and even could have
been sued.
He has never enquired from the office of the Inspector of Drugs licence
whether copy of his licence was ever obtained by the Customs Department. He
has never sold Phensedyl in his entire business career. He has a wholesale shop.
He has sold cough syrup through his shop. Some of those brands also contained
codaine.
49. PW-8, Shri Digendra Deb is declared hostile. He was cross-examined by
the prosecution as well as defence.
50. PW-9, Shri Prashant Das, Businessman, has stated that he was the
Proprietor of S.S. Drugs Distributor and he was running his business since 2010-
11; but he closed his drugs store in the year 2012-13.
Ext.14 is the third bid list Serial No.20/10-11 dated 05/08/2010 containing
auction of phensedyl cough linctus 100 ml each, total 18627 bottles by custom
Division Karimganj. The licence No. and the name of bidder mentioned at serial
No.2 is him. The name of Proprietor is also mine. But he did not participate in the
said auction and Ext.14(4) is also not his signature though it is shown as his
signature put thereon. He does not know who put the said signature.
He knew Kathia Baba Drugs Distributor; but he does not know whether
they participated in the auction Ext.14. He has never given his drug licence to
Customs Department or any other person for obtaining Phensedyl. His shop was
looked after by Shuban Das and Debu Gupta.
Ext.31 is his statement U/S 164 of Cr.P.C. and Ext.31(1) is his signature.
The above statement was given by him voluntarily and whatever he has stated
therein is true.
32
Ext.32 (in 09 sheets) are the specimen signatures and writings given by
him voluntarily at Karimganj Circuit House on 31/01/2014. When he gave his
specimen handwritings and signatures two other witnesses were also present
there.
51. During cross-examination for accused Sagar Kr. Dutta, Chhanda
Deb & Arijit Bhattacharjee, PW-9 has stated that he does not know what is
third bidder list. In his statement Ext.31 there is no mention about third bidder
list. He has not seen his drug licence in the court on the day of his deposition.
He does not remember his drug licence number.
During his evidence in-chief after going through the bid list Ext.14, he has stated
that the licence No. and the name of bidder mentioned at serial No.2 are him.
But as he has stopped his business about 3-4 years ago so, now he cannot
remember exactly what was his drug licence number. He cannot remember after
going through Ext.14 also that the licence No. mentioned in Serial No.2 actually
belongs to him or not. In Ext.31 and Ext.32 (09 sheets) he put his signature as
Prashant Das not as Prashanta Das. He used to sign as Prashant Das, but he is
Prashanta Das. There may be many Prashanta Das in Karimganj. There may be
some other business house in Karimganj named as S.S. Drugs Distributor.
52. During cross-examination for accused M.P. Acharjee, PW-9 has
stated that in Ext.31 he has not mentioned anything about misuse of his drug
licence.
53. PW-10, Shri Bipul Dhar, Casual worker in Customs Department has
stated that he knows Chhanda Deb as she used to take Phensedyl from Customs
Department. On one day, Mr. S.K. Dutta and M.P. Acharjee asked him whether
he knows the residence of Chhanda Deb to which he replied in negative.
Thereafter, Mr. Dutta and Mr. Acharjee asked from Mashoq Ahmed and Arpan
Das who were also present there as to whether they know the residence of
Chhanda Deb to which they replied in affirmative. After that Mr. Acharjee and Mr.
Dutta handed over one TR-5 to him and asked him to accompany Mashoq Ahmed
and Arpan Das to the house of Chhanda Deb to obtain her signature on TR-5.
33
When they reached the house of Chhanda Deb, Mashoq Ahmed called one
person from her house to whom he handed over the TR-5 and Mashoq asked
that person to get it signed. After getting it signed he returned it to him and he
handed over the TR-5 to Mr. Acharjee and Mr. Dutta in Customs Office.
The Phensedyl purchased by Kathia Baba Drugs Distributor in this case
was delivered by him to the representative of Kathia Baba Drugs Distributor in
presence of Mr. M.P. Acharjee and Mr. S.K. Dutta from the godown of Customs.
He was unaware of the fact that where they have taken the said Phensedyl upon
delivery. He also could not identify the person who has taken Phensedyl for
Kathia Baba Drugs Distributor although he was the person who has taken out the
goods from the godown. He does not have any knowledge regarding the
payment in this case. In most of the auction the drug store owners are present
at godown till the stocks are handed over to them. As and when auction took
place 10/12 persons came to the Customs Office to take delivery of Phensedyl.
His statement was recorded in connection with this case at Shillong by the
Magistrate. His statement was recorded in English. After recording his statement
it was not explained to him. Ld. Magistrate asked questions in English; however,
he replied in Hindi as he does not know English. Whatever he has deposed to-
day before this Hon’ble court, the same facts he has stated before the
Magistrate.
He can identify the handwritings of Mr. M.P. Acharjee as well as Mr. S.K.
Dutta. Ext.14 is in the handwriting of Mr. M.P. Acharjee. Ext.14(1) is the
signature of Mr. M.P. Acharje
e. Ext.14(2) is the signature of the then Deputy Commissioner Mr. Adhikari and
Ext.14(3) is the signature of Mr. Sagar Kr. Dutta.
Ext.15 is in the handwriting of Mr. M.P. Acharjee. Ext.15(1) is the
signature of Mr. M.P. Acharjee. Ext.15(2) is the signature of the then Deputy
Commissioner Mr. Adhikari and Ext.15(3) is the signature of Mr. Sagar Kr. Dutta.
Ext.33 is his statement recorded before the Magistrate, Shillong and Ext.33(1) is
his signature thereon.
34
54. During cross-examination for accused Sagar Kr. Dutta, PW-10 has
stated that in 2010, he was working as Mali/Safiwala in the Customs Office,
Karimganj. Still he was working as Mali/Safaiwala there. He never dealt with
official records of the Customs Office, Karimganj. He never dealt with Exts.14
and 15. He studied up to Class-VII. He cannot say about the contents and
purpose of Exts.14 and 15. What he has stated in Ext.33 is true.
55. During cross-examination for accused Chhanda Deb, PW-10 has
stated that though his duty was only sweeping and cleaning but he has delivered
the Phensedyls as per the directions of the officers; but he did not recognize the
persons to whom he delivered the Phensedyls in question.
56. During cross- examination for accused M.P. Acharjee, PW-10 has
stated that he did not have any role in the auction of Phensedyl. He is not aware
about the documents which are used during the auction of Phensedyl. I cannot
read and understand the contents of Ext.33. He is not aware whether there is
any reference of document in Ext.33 on which signature was to be obtained. He
is not aware whether his statement Ext.33 contains any reference of delivery of
Phensedyl after auction. He has known Arpan Das since last 5/6 years. He had
gone to take the signature of Chhanda Deb. He had met Chhanda Deb when CBI
personnel had called Chhanda Deb and other persons along with him. Before that
he had never met Chhanda Deb. He cannot recognize the signature of Chhanda
Deb.
57. PW-11, Shri Sushen Mazumdar, Drug Inspector, Silchar has submitted
that he joined as Drug Inspector in 1994 in Guwahati Head Office. He was
transferred to Karimganj and remained there as Drug Inspector during 1994 to
1996 and thereafter 2010 to 2012. During his tenure as Drug Inspector at
Karimganj he never got any information for auction of Phensedyl by Custom
Office, Karimganj in the past as well as during his time from the records of his
office.
There was letter from Mr. P.C. Basumatary, Drug Controller of Assam that
there was certain violations of rules in sale and auctions by Customs Department
35
without informing the department of drugs and also that Phensedyl is a restricted
medicine in the State of Assam and Customs department sold to unlicensed
Drugs Distributors.
In relation to sample testing of any medicines the Customs department
should inform and request the Drug Department to take sample and test it. But
during his tenure from December, 2010 there was no request or information
regarding seizure of any habit forming drugs or for taking sample by the Customs
Department.
Ext.34 is the Drug license No.KMJ/3203 and KMJ/3204 in two pages form
20-B and 21-B in the name of Kathia Baba Drug Distributor valid for 19/09/2009
to 18/09/2014 and the competent person is Mrs. Chhanda Deb. This license is
issued by the licensing authority Mr. M.C. Deka, Deputy drug Controller and
Exts.34(1) and 34(2) are his signatures and seal which he identifies.
Ext.35 is the Drug license No.KMJ/3362 and KMJ/3363 in two pages form
20-B and 21-B in the name of M/S Wings Drug Distributors Settlement Road,
Karimganj valid for 07/04/2004 to 31/12/2008 and the competent person is Ajit
Bhattacharjee. This license is issued by the licensing authority Mr. P.C.
Basumatary, Drug Controller and licensing authority and Exts.35(1) and 35(2) are
his signatures and seal which he identifies.
Ext.36 is the certified photocopy of Drug license No.KMJ/3201 and KMJ/3202 in
two pages form 20-B and 21-B in the name of M/S S.S. Drug Distributors, Silchar
Road, Karimganj valid for 19/09/2009 to 18/09/2014 and the competent person
is Prashant Das. This license is issued by the licensing authority Mr. M.C. Deka,
Deputy drug Controller and licensing authority and Exts.36(1) and 36(2) are his
signatures and seal which he identifies. This drug license is certified by him and
Ext.36(3) and 36(4) are his signatures with date and seal.
Ext.37 is the Drug license No.KMJ/3117 and KMJ/3118 in two pages form
20-B and 21-B in the name of M/S Sen Drug Distributors, Silchar Road,
Karimganj valid for 23/08/1995 to 31/12/1996. This license is issued by the
36
licensing authority Mr. Chanchal Debroy, licensing authority and Exts.37(1) and
37(2) are his signatures which he identifies.
Ext.38 is the Drug license No.KMJ/3273 and KMJ/3274 in two pages form
20-B and 21-B in the name of M/S Rupom Drug Distributors, Silchar Road,
Karimganj valid for 26/08/2002 to 31/12/2006. This license is issued by the
licensing authority Mr. P.C. Basumatary, Drug Controller and licensing authority
and Exts.38(1) and 38(2) are his signatures which he identifies. The competent
person is Sri Chinmoy Roy. Ext.39 is the Challan with respect to Ext.38 in the
name of M/S Rupom Drug Distributor for deposit of Rs.3,005/-. Ext.40 is the
attested photocopy of Drug license No.CHR/3591 and CHR/3592 in two pages
form 20-B and 21-B in the name of M/S Dipali Pharma and Surgicals,
Vebakanand Road, Hailakandi valid for 16/10/2003 to 31/12/2007. This license
is issued by the licensing authority Mr. P.C. Basumatary, Drug Controller and
licensing authority and Exts.40(1) and 40(2) are his signatures with seal which
he identifies. The competent person is Sri Pannalal Nath.
Ext.41 is the attested photocopy of treasury challan in the name of Dipali
Pharma and Surgicals of Rs.4,005/-. Ext.40 and Ext.41 are contained in file
Ext.22. Of all the drug licenses which he has exhibited on the day of deposition
except the drug license of M/S Sen Drug Distributor all others are genuine. M/S
Sen Drug Distributor is non-existent which he came to know after physical
verification. There is a requirement of existence of premises as per rules.
Before his posting at Karimganj in 2010, Sri P.K. Kakati, Inspector of Drug
was looking after the post of Drug Inspector, Karimganj.
As per Ext.44 which is challan No.2007/2012/03998 Sen Drug Distributor
deposited of Rs.3,005/- for renewal of drug license. The drug license Ext.36
which he has exhibited on the day of deposition certified by him, he has verified
it from the original.
58. During cross-examination for accused Mukti Pada Acharjee, PW-
11 has stated that the letter referred to in his evidence in chief of Mr. P.C.
Basumatary is dated 19/05/2010 bearing No.HSD/MISC/36/99/Pt./2162 this letter
was addressed to Commissioner of Customs, NER, Shillong. The Customs
37
Department never used to inform his department regarding auction of Phensedyl.
He was not aware whether the Customs department also sold Phensedyl in
auction to unlicensed drug distributors as his department was never informed
about any such auction. His department has no proof regarding sale of Phensedyl
in auction by the Customs Department to the unlicensed drug distributors. His
department was also not informed regarding auction of phensedyl involved in the
present case. On the scrutiny of the drug licenses, in his opinion all the drug
licensees mentioned in his chief except M/S Sen Drug Distributor are genuine.
59. During cross-examination for accused Chhanda Deb, PW-11 has
stated that he was not aware whether the aforesaid drug Distributors namely,
M/S Shova Drug Distributor, M/S Wing Drug Distributor, M/S Kathia Baba Drug
Distributor, M/S Dipali Pharma and Surgical and M/S Sen Drug Distributor
participated in the auction of phensedyl by the Customs Department in the
present case.
60. During cross-examination for accused Sagar Kr. Dutta & Arijit
Bhattacharjee, PW-11 has stated that Ext.22/A and Ext.22/B are the two
letters which show that S.K. Dutta, Superintendent (Disp), Customs Division,
Karimganj had requested the Inspector of Drug, Karimganj on 18/06/2010 and
24/05/2010 respectively for inspection of medicines phensedyl cough-linctus for
the purpose of testing sample by the competent authority. Ext.22/A and Ext.22/B
shows that the same were received by someone, but he does not know who
received the same.
He admitted that from the contents of Exts.22/A and 22/B, it is apparent
that the requirement of informing and requesting the Drug Department to take
sample for test, has been fulfilled in this case.
61. PW-12, Shri Debajit Bhattacharjee, Branch Manager, Amarpur Branch,
SBI, has stated that on 25/09/2013 he went to Circuit House, Karimganj as
directed by his Chief Manager to become a witness in relation to this case.
Ext.42 in two pages are the specimen signatures/handwriting of Smti.
Chhanda Deb which she has given voluntarily to the CBI in his presence. One
38
other witness Mr. Abhijit Nag who is also from the bank was also present there.
Ext.42(1) and Ext.42(2) are his signatures and Ext.42(3) and Ext.42(4) are the
signatures of Sri Abhijit Nag which he identifies. Ext.42(5) and Ext.42(6) are the
signatures of Smti. Chhanda Deb which she has put in his presence in lieu of
giving of specimen signatures voluntarily.
Ext.43 in two pages are the specimen signatures/handwriting of Mr. Arijit
Bhattacharjee which he has given voluntarily to the CBI in his presence. One
other witness Mr. Abhijit Nag who is also from the bank was also present there.
Ext.43(1) and Ext.43(2) are his signatures and Ext.43(3) and Ext.43(4) are the
signatures of Sri Abhijit Nag which he identifies. Ext.43(5) and Ext.43(6) are the
signatures of Arijit Bhattacharjee which he has put in his presence in lieu of
giving of specimen signatures voluntarily.
Ext.27 in two pages are the specimen signatures/handwriting of Mr.
Chinmoy Roy which he has given voluntarily to the CBI in his presence. One
other witness Mr. Abhijit Nag who is also from the bank was also present there.
Ext.27(3) and Ext.27(4) are his signatures and Ext.27(5) and Ext.27(6) are the
signatures of Sri Abhijit Nag which he identifies. Ext.27(1) and Ext.27(2) are the
signatures of Sri Chinmoy Roy which he has put in his presence in lieu of giving
of specimen signatures voluntarily.
62. During cross-examination for accused Mukti Pada Acharjee, PW-
12 has stated that he does not know Smti. Chhanda Deb, Arijit Bhattacharjee and
Chinmoy Roy personally. CBI had requested the Head of our Branch, the Chief
Manager to depute officers from the bank as specimen witness. He was directed
by the Chief Manager in writing to appear as specimen witness. He has not
exhibited of the aforesaid order in writing by the Chief Manager.
63. During cross-examination for accused Sagar Kr. Dutta, Chhanda
Deb & Arijit Bhattacharjee, PW-12, has stated that before going to Circuit
House, Karimganj he was aware that he would be a specimen witness. In Ext.27
nowhere it is mentioned that specimen handwriting/signatures of Chinmoy Roy
was taken at the Circuit House, Karimganj.
39
64. PW-13, Shri Abhishek Kr. Sinha, Manager, UCO Bank, Chandni Chauk
Beihat Branch, CBI has recorded his statement in connection with this case.
Ext.45 is the seizure memo dated 18/09/2014 by which CC Account opening form
in respect of Sri Anup Kr. Sen of M/S Sen Drug Distributor (CC Account
No.08220500000433) was seized from him by CBI at Karimganj Circuit House.
Ext.45(1) is his signature with date and designation.
Ext.46 (in 02 pages) is the account opening form of CC Account
No.08220500000433 in the name of M/S Sen Drug Distributor. As per Ext.46 the
said account is to be operated by Mr. Anup Kr. Sen.
Ext.47 is the letter written by him to CBI, I/O informing therein that the
CC Account No.08220500000433 was opened in our branch on sanction of loan
on 26/06/1996 in the name of M/S Sen Drug Distributor is to be operated by Sri
Anup Kr. Sen. Ext.47(1) is his signature with seal.
The above said document Ext.46 was asked by the CBI and as per the
instruction of the then Branch Manager, he has handed over the same to CBI.
65. During cross-examination for all the accused persons, PW-13 has
stated that Manager and Assistant Branch Manager of the bank are the custodian
of the bank documents. Ext.46 is a genuine document of their bank. He does not
know if the Ext.46 or Ext.47 are not relevant in this case. He also does not know
for what purpose these documents were seized. He has simply handed over the
documents to CBI.
66. PW-14, Shri Abhijit Nag, a retired bank employee is a seizure witness, in
whose presence specimen signatures of Smt. Chhanda Deb were taken. PW-14
has proof Ext.42 (in two pages) is the specimen signatures in Chhanda Deb
marked as S-1A, S-1/1, S-1/B & S-1/2. Ext.42(3) and Ext.42(4) are to be his
signatures. Accused has also proof Ext.42(5) and Ext.42(6) are to be the
signatures of Chhanda Deb in lieu of giving her specimen signature. These
specimen signatures were given by her voluntarily.
40
Ext.43 (in 02 pages) is the specimen signatures of Arijit Bhattacharjee
marked as S-3A, S-3/1, S-3/B and S-3/2. Ext.43(3) and Ext.43(4) are his
signatures. Ext.43(1) and Ext.43(2) are the signatures of his colleague Debajit
Bhattacharje. Ext.43(5) and Ext.43(6) are the signatures of Arijit Bhattacharjee in
lieu of giving his specimen signature. These specimen signatures were given by
him voluntarily.
Ext.27 (in 02 pages) is the specimen signatures of Chinmoy Roy marked
as S-4A, and S-4B. Ext.27(5) and Ext.27(6) are his signatures. Ext.27(3) and
Ext.27(4) are the signatures of his colleague Debajit Bhattacharje. Ext.27(1) and
Ext.27(2) are the signatures of Arijit Bhattacharjee in lieu of giving his specimen
signature. These specimen signatures were given by him voluntarily.
67. During cross-examination for all accused persons, PW-14 has
stated that at the time of obtaining specimen signature, he did not know who is
Chhanda Deb, Arijit Bhattacharjee and Chinmoy Roy. He does not know in
relation to which case their specimen signatures were obtained by CBI officer.
68. According to PW-15, Shri V. Hangzo, retired Assistant Commissioner,
Custom, Ext.48 is a letter address to him by Superintendent (Disposal) Mr. G.
Kalita. Vide this letter Superintendent (Disposal) has forwarded to him the
documents as desired by CBI. Ext.48(1) is the signature of Mr. G. Kalita,
Superintendent (Disposal) which he identifies.
Ext.49 is the letter addressed to him regarding production of certain
documents by Mr. P.K. Sen, Superintendent (Audit) and Ext.49(1) is the
signature of Mr. P.K. Sen which he identifies.
Ext.50 is the letter dated 15th September, 2014 addressed to Sri S.T.
Khaute, Inspector, CBI, ACB, Shillong by him and Ext.50(1) is his signature with
date and designation. Vide Ext.50 he has forwarded the documents as desired by
CBI which were received from Superintendent (Disposal) vide Ext.48.
Ext.12 is the MOF (DR)’ letter F No.549/8/80-LCI dated 18/12/1981 which
are instructions regarding the disposal of seized/confiscated drug formulation.
41
Ext.12 is certified by him after comparing with the office copy. Ext.12(1) is his
signature with date and seal and remarks “Certified to be true copy”.
Ext.51 (in 03 sheets) is the MOF (DR) letter F No.711/31/83-LC (AS)
dated 22/05/1984 which are the supplementary instructions for seized/
confiscated goods-Review of perishable goods. Ext.51 is certified by him after
comparing the same with his office copy. Ext.51(1),Ext.51(2) and Ext.51(3) are
his signatures with date and seal and remarks “Certified to be true copy”.
Ext.52 (in 02 sheets) is the Circular No.12/2006-Customs which are
guidelines for the valuation and disposal by auction cum tender of
seized/confiscated and time-expired goods dated 20/02/2006. Ext.52(1) is his
signature with date and seal and remarks “Downloaded from CBEC website” and
Ext.52(2) is his signature with seal and remarks “Certified to be downloaded”.
69. During cross-examination for all the accused persons, PW-15 has
stated that he has not seen the letter by which CBGI has asked for documents
whose he has Ext.48 and Ext.49 were written by Mr. G. Kalita and Mr. P.K. Sen
respectively in reference to his letters addressed to them. But today he has not
seen those two letters referred by them, in the court. He cannot say what are the
documents referred as Sl. No.1 to 3, in Ext.48. Therefore, He also cannot say
what are the documents forwarded by Mr. G. Kalita vide Ext.48.
Vide Ext.49 Mr. P.K. Sen informed him that it is difficult to trace out the
concerned file with data provided by CBI and he suggested to request the CBI for
more information.
He admitted that Mr. P.K. Sen did not furnish any document to him. In a
suggestion put to him he admitted that in Ext.50 He did not mention what are
the documents and articles forwarded to CBI by him. He only referred that
documents and articles received from Superintendent (Disposal) and
Superintendent, (Audit Branch), Customs, Shillong are enclosed. Mr. P.K. Sen
was the then Superintendent, (Audit Branch), Customs, Shillong and Mr. G. Kalita
was the then Superintendent (Disposal).
42
70. PW-16, Shri Vanlalfan Khuongpui, Sr. Statistical Officer, National Sample
Survey Office (FOD), Pune Regional Office, on 08.09.2014, his Director gave him
oral order to appear in CBI office. Two persons he along with his colleague Shri
Angelyn Ramneichieng went to CBI office. Two persons present and were
introduced them. Both the persons present gave their specimen signatures
voluntarily before them.
Ext.53 (in 04 sheets) is the Specimen signatures of Sri Sagar Kr. Dutta
marked as S-5A to S-5D. Ext.53(1) to Ext.53(4) are his signatures with date and
designation. Ext.53(5) to Ext.53(8) are the signatures of his colleague Ms.
Angelyn Ramneichieng, which he identifies.
Ext.54 (in 12 sheets) is the Specimen signatures of Sri Mukti Pada Acharjee
marked as S-6A to S-6L. Ext.54(1) to Ext.54(12) are his signatures with date and
designation. Ext.54(13) to Ext.54(24) are the signatures of his colleague Ms.
Angelyn Ramneichieng, which I identifies.
71. During cross-examination for all accused persons, PW-16 has
stated that he personally does not know Sagar Kr. Dutta and Mukti Pada
Acharjee. He cannot say if any force was exercised on those two persons before
they reached CBI office for giving their specimen signatures. In Ext.53 and
Ext.54 there is no signature of Sagar Kr. Dutta and Mukti Pada Acharjee
respectively stating that they have given the specimen signatures voluntarily.
72. PW-17, Shri Probir Kr. Sen, Superintendent, Central GST Commissioner,
Shillong has exhibited a letter No.Spl./109/3/2(A) 13-HSG dated 25.09.2014 by
Inspector, CBI, ACB, Shillong addressed to the Superintendent, Head Quarter,
Audit, office of the Commissioner of Customs (Preventive), NER, Shillong. At the
relevant point of time, he was the In-charge of the Superintendent, Headquarter,
Audit. vide Ext.55, CBI has asked for certified copy of audit report AQ
No.RA/CRA/LAR/LC/SHG/03-04/1 dated 20.11.03 and IR No.RA/CRA/LAR/LC/
AGT/08-09/35 dated 17.03.2009.
Ext.56 is the letter No.C.No.VIII (25) 07/Audit/CUS/Misc.-CORRES/SH
/2014/11054 addressed to the HOB, CBI, Shillong written by him dated 29th
43
September, 2014. Vide Ext.56 he has forwarded the attested copy of some of the
documents asked by CBI. Ext.56(1) is his signature.
Ext.57 (in 10pages) is the attested copy of Inspection report of Customs
Revenue Audit Department, Kolkata which he has forwarded to CBI as enclosure
of Ext.56 Ext.57(1) to ext.57(10) are his signatures with seal and remarks
“Attested”. He has attested these documents after comparing with the originals.
Angelyn Ramneichieng, which I identifies.
73. During cross-examination for accused Sagar Kr. Dutta, PW-17 has
stated that he has not personally received Ext.55. Vide Ext.55 report dated
20.11.2003 and 17.03.2009 were sought for by the CBI. By Ext.56 he forwarded
the report dated 18.12.2003. He does not remember whether he had forwarded
the report dated 20.11.2003 and 17.03.2009 to the CBI. He does not know who
has prepared Ext.57 report. There is also no signature of person who has
prepared Ext.57 report. He does not have any personal knowledge about this
case.
74. During cross-examination for accused M. P. Acharjee, Chhanda
Deb & Arijit Bhattacharjee, PW-17 has stated that he cannot say whether any
audit has been exhibited pertaining to the period in which the auctions in
question in this case were held. He cannot say from his personal knowledge
whether the department has incurred loss for delay in disposal of this kind of
seized medicines. As per Ext.57 Part-III, there is a finding to the effect that there
is loss of Government revenue due to destruction of expired medicines as a result
of prolonged storage.
75. PW-18, Shri Hindam Langdaingamba Singh, Dy. Manager, SBI, Kakching
Branch, Imphal has exhibited 32 (in 0 sheets) as the specimen
signature/handwriting of Prashanta Das, which was taken at Karimganj Circuit
House on 31.01.2014. The specimen signatures/handwriting Ext.32 which was
given by him voluntarily were taken in their presence at Karimganj Circuit House.
44
76. During cross-examination for accused Sagar Kr. Dutta, PW-18 has
stated that in Ext.32 there is no signature of Prashanta Das declaring that he has
given the specimen signature/writings voluntarily.
77. During cross-examination for accused M. P. Acharjee, Chhanda
Deb & Arijit Bhattacharjee, PW-18 has stated that about the specimen
signatures particulars of the person whose specimen signatures were taken were
filled up by CBI officer namely, Mr. S.T. Khaute. All the particulars in 09 sheets
were filled up by him. He cannot say whether the typed portions of the
particulars at the top of the specimen signature page Ext.32 including “Taken
voluntarily” were inserted before taking the specimen signatures or thereafter.
78. PW-19, Shri Satyendra Kr. Sinha, Financial Adviser, Water Resource
Deptt., Dispur has proved deposit certificate (Challan) of Rs.3,005/- in the name
of M/s Sen Drugs Distributor as Drug licence fees as Ext.44. Ext.44(1) is his
signature with date.
79. During cross-examination for accused Sagar Kr. Dutta, PW-19 has
stated that as per office record, Ext.44 was issued.
80. During cross-examination for accused M. P. Acharjee, PW-19 has
stated that Ext.44 is an exhibit issued by the Treasury Office, Karimganj as a
proof of deposit of the drug licence fee in the name of M/s Sen Drug Distributor
vide challan No.2007/12/03998 dated 26.12.2007.
81. Defence has not cross-examined for accused Chhanda Deb.
82. PW-20, Shri M. N. Bhattacharya, Salesman in Khadi Gram Udyug (KVIC),
in his deposition has stated that he was directed by his Director to go to CBI
office for some official work and accordingly, on 28.08.2014, he went to CBI
office, Shillong. When he reached CBI office, one Arijit Bhattacharjee was present
there and some ID proof of his was shown to him. Some documents were seized
from Arijit Bhattacharjee in his presence by CBI office. The documents were
handed over by Arijit Bhattacharjee voluntarily.
45
He has proved Ext.58 is the seizure memo dated 20.08.2014, by which
the documents reflected in the seizure memo were seized. Ext.58(1) is his
signature with date and Ext.58(2) is the signature of Arijit Bhattacharjee with
date, which he identifies, since it was put by him in front of him. Ext.59 is the
Ledger book of Wings Drugs Distributor containing pages No.1 to 93. Ext.59L(L1)
is his signature with date and designation.
83. During cross-examination for accused Arijit Bhattacharjee, PW-20
has stated that Arijit Bhattacharjee was not known to him earlier. The seizure
was done in his presence.
84. During cross-examination for accused Chhanda Deb, PW-20 has
stated that he has not seen all the documents mentioned in the seizure list
before the court. The signature of Arijit Bhattacharjee was put in his presence.
He was not present at Karimganj in connection with this case. He cannot say
right now the existence of the shop of accused Arijit Bhattacharjee at Karimganj.
85. During cross-examination for accused Sagar Kr. Dutta, PW-20 has
stated that as per Ext.58, the address of Arijit Bhattacharjee is Karimganj,
Assam. He does not know why and how the documents mentioned in the Ext.58,
which was seized at Shillong from Arijit Bhattacharjee. He does not know about
the documents seized vide Ext.58. In Ext.59 there is no endorsement why
Ext.59(1) signature was put by him (PW-20).
86. During cross-examination for accused M. P. Acharjee, PW-20 has
stated that the seizure was conducted at CBI Office, Shillong. At the CBI office
there were 6/7 CBI officials and Sri Arijit Bhatttacharjee. He was not aware about
Ledger Book. He cannot remember what goods or documents were seized vide
Ext.58 was signed in the evening.
87. PW-21, Shri C.M. Flavian, Sr. Statisical Office, NSSO, CGO Complex, CPD
Belapur, Navi Mumbari has stated that he was directed by his Dy. Director
General, NSSO, Shillong to appear in CBI office on 25.07.2014 in writing. At that
time he was working as Sr. Statistical officer, Shillong. As per his direction, he
46
proceeded to Shillong on 25.07.2014 and he was introduced by CBI officer with
one person Mr. Ritendra Deb whose ID proof was also shown to him. He handed
over some documents to CBI officer which were seized by a seizure memo. The
documents were handed over voluntarily by Mr. Ritendra Deb to CBI.
Ext.60 is the seizure memo dated 25.07.2014, by which 05 documents
reflected therein were seized and Ext.60(1) is his signature with date and
designation. Ext.60(2) is the signature of Ritendra Deb and he identifies his
signature since he put it before him.
Ext.61 (in 12 sheets) is the duplicate copy of Assam Profession, Trade,
Calling and Employment Taxation Rules 1947, Form-vii-CC Challan and the
Assam Value Added Tax Rules Form-54 Challan along with itemwise. Trading
Account from 01.04.2010 to 29.03.2011 and list of taxable purchase and input
tax credit, 2010-11 in respect of Chhanda Deb, Proprietor of M/S Kathia Baba
Drugs Distributor. Ext.61(12) are his signatures with date.
Ext.62 is the retail invoice dated 03.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.6412/- and Ext.62(1) is his signature with
date on the reverse side of Ext.62.
Ext.63 is the retail invoice dated 03.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.6898/- and Ext.63(1) is his signature with
date on the reverse side of Ext.63.
Ext.64 is the retail invoice dated 06.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.3043/- and Ext.64(1) is his signature with
date on the reverse side of Ext.64.
Ext.65 is the retail invoice dated 06.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.8500/- and Ext.65(1) is his signature with
date on the reverse side of Ext.65.
Ext.66 is the retail invoice dated 06.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.8585/- and Ext.66(1) is his signature with
date on the reverse side of Ext.66.
47
Ext.67 is the retail invoice dated 07.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.3606/- and Ext.67(1) is his signature with
date on the reverse side of Ext.67.
Ext.68 is the retail invoice dated 07.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.4621/- and Ext.68(1) is his signature with
date on the reverse side of Ext.68.
Ext.69(in 02 sheets) is the retail invoice dated 07.09.2010 of purchase
medicines by Kathia Baba Drugs Distributor of Rs.17,221/- and Ext.69(1) &
Ext.69(2) are his signature with date on the reverse side of Ext.69.
Ext.70 is the retail invoice dated 09.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.920/- and Ext.70(1) is his signature with date
on the reverse side of Ext.70.
Ext.71 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.882/- and Ext.71(1) is his signature with date
on the reverse side of Ext.71.
Ext.72 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.507/- and Ext.72(1) is his signature with date
on the reverse side of Ext.72.
Ext.73 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.4319/- and Ext.73(1) is his signature with
date on the reverse side of Ext.73.
Ext.74 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.1569/- and Ext.74(1) is his signature with
date on the reverse side of Ext.74.
Ext.75 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.2646/- and Ext.75(1) is his signature with
date on the reverse side of Ext.75.
48
Ext.76 is the retail invoice dated 10.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.2409/- and Ext.76(1) is his signature with
date on the reverse side of Ext.76.
Ext.77 is the retail invoice dated 13.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.7675/- and Ext.77(1) is his signature with
date on the reverse side of Ext.77.
Ext.78 is the retail invoice dated 13.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.450/- and Ext.78(1) is his signature with date
on the reverse side of Ext.78.
Ext.79 is the retail invoice dated 14.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.7648/- and Ext.79(1) is his signature with
date on the reverse side of Ext.79.
Ext.80 is the retail invoice dated 15.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.371/- and Ext.80(1) is his signature with date
on the reverse side of Ext.80.
Ext.81 is the retail invoice dated 15.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.2942/- and Ext.81(1) is his signature with
date on the reverse side of Ext.81.
Ext.82 is the retail invoice dated 16.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.5415/- and Ext.82(1) is his signature with
date on the reverse side of Ext.82.
Ext.83 (in 02 sheets)is the retail invoice dated 20.09.2010 of purchase
medicines by Kathia Baba Drugs Distributor of Rs.13251/- and Ext.83(1) &
Ext.83(2) is his signature with date on the reverse side of Ext.83.
Ext.84 is the retail invoice dated 20.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.1397/- and Ext.84(1) is his signature with
date on the reverse side of Ext.84.
49
Ext.85 is the retail invoice dated 21.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.3077/- and Ext.85(1) is his signature with
date on the reverse side of Ext.85.
Ext.86 is the retail invoice dated 21.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.17395/- and Ext.86(1) is his signature with
date on the reverse side of Ext.86.
Ext.87 is the retail invoice dated 24.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.7556/- and Ext.87(1) is his signature with
date on the reverse side of Ext.87.
Ext.88 is the retail invoice dated 24.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.2917/- and Ext.88(1) is his signature with
date on the reverse side of Ext.88.
Ext.89 (in 02 sheets) is the retail invoice dated 24.09.2010 of purchase
medicines by Kathia Baba Drugs Distributor of Rs.12964/- and Ext.89(1) is his
signature with date on the reverse side of Ext.89.
Ext.90 is the retail invoice dated 24.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.882/- and Ext.90(1) is his signature with date
on the reverse side of Ext.90.
Ext.91 is the retail invoice dated 27.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.10568/- and Ext.91(1) is his signature with
date on the reverse side of Ext.91.
Ext.92 is the retail invoice dated 28.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.7100/- and Ext.92(1) is his signature with
date on the reverse side of Ext.92.
Ext.93 is the retail invoice dated 29.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.1704/- and Ext.93(1) is his signature with
date on the reverse side of Ext.93.
50
Ext.94 (in 02 sheets) is the retail invoice dated 29.09.2010 of purchase
medicines by Kathia Baba Drugs Distributor of Rs.18,365/- and Ext.94(1) &
Ext.94(2) is his signature with date on the reverse side of Ext.94.
Ext.95 is the retail invoice dated 29.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.2527/- and Ext.95(1) is his signature with
date on the reverse side of Ext.95.
Ext.96 is the retail invoice dated 29.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.840/- and Ext.96(1) is his signature with date
on the reverse side of Ext.96.
Ext.97 is the retail invoice dated 29.09.2010 of purchase medicines by
Kathia Baba Drugs Distributor of Rs.3319/- and Ext.97(1) is his signature with
date on the reverse side of Ext.97.
88. During cross-examination for accused Sagar Kr. Dutta, PW-21 has
admitted that the documents seized vide Ext.60 are not pertaining to Sri Ritendra
Deb. He does not know how Sri Ritendra Deb got custody of all those
documents. In Ext.60 it is not mentioned that Ritendra Deb has handed over all
the documents voluntarily. He also does not know what is the relevancy of all
those documents and he is also not privy to all those documents.
In Ext.61 (12 sheets) there is no endorsement with his signatures
Ext.61(1) to Ext.61(12) that these were seized in his presence. Vide Ext.60 para
4, only photocopy was seized not the duplicate copy. In Ext.61 there is no
signature or endorsement of any other person or authority except him.
Ext.62 to Ext.97 are the invoices of purchase on different dates.
There is no endorsement with his signature Ext.62(1) to Ext.97(1) in
Ext.62 to Ext.97 respectively that these were seized in his presence.
51
89. During cross-examination for accused M. P. Acharjee, Chhanda
Deb & Arijit Bhattacharjee, PW-21 has stated that CBI office did not mention
regarding the ownership of those documents. Mr. Ritendra Deb did not inform
him as to show the documents were seized. He has no personally knowledge
regarding M/s Kathia Baba Drugs Distributor. He was also not informed by the
Proprietor of M/s Kathia Baba Drugs Distributor.
From a reading the list of 05 documents mentioned in Ext.60, he cannot
say as regard the ownership of those documents. As regard document No.2 in
Ext.60, which is an Income Tax Return for the assessment year 2011-12 of one
Chhanda Deb, he was neither informed nor aware as to whether she had
personally provided her copy of Income Tax Return.
Ext.61 3rd sheet where his signature appears as Ext.61(3), is an item wise
trading account from 01.04.2010 to 31.03.2011 contents details regarding
opening shock, purchase, sales and closing stock. This bunch of documents in
Ext.61 do not include profit & loss account and Balance Sheet. In Ext.61(sheet
No.3 to 12) there is no certificate or endorsement by either the accountant of
Kathia Baba Drug Distributor to the effect that these are the correct and true
figures depicted from the books of account.
He cannot say from Ext.62 to ext.97 whether Kathia Baba Drug
Distributor had purchased medicines from the suppliers. In none of Ext.62 to
ext.97 there is reference for any purchase of medicines by auction. In serial No.3
to Ext.60 there is mentioned for print out copy of sale details of Kathia Baba
Drug Distributor for the period from 17.02.2010 to 04.12.2010. However, the
source of the print out is no mentioned and he has also not aware of it. He coat
say whether Sri Ritendra Deb was authorized to hand over the documents to CBI.
90. PW-22, Shri Tapas Bhattacharjee, Inspector (Statistics), Customs
Division, Karimganj has stated that CBI has recorded his statement in connection
with this case. He worked in Disposal Section as Inspector, Customs Deptt. since
1st June, 2012 in the office of Deputy Commissioner, Customs Division, Karimganj
upto January/February, 2015.
52
With regard to the normal procedure for disposal of specified
goods/goods first adjudication of seized items is done. Thereafter, they wait for
appeal period of two months. After expiry of this period, Annexure-L is prepared
and the same is sent to Shillong Headquarter for fixing the price. Annexure-L is
supported by valuers report and the same is also accepted by seizing unit. There
is a Pricing Committee at Shillong Headquarter. After receiving the approved
Annexure-L a date and time of auction is fixed and a notice of auction is issued
to the general public in our Notice Board. In case of disposal of specified goods,
rules/regulation/facilities fixed by the higher authority is maintained in
accordance with existing rules prescribed by the Govt. In auction the intended
bidders make the bid and the highest bidder is allowed to take the goods on
payment of entire value of the highest bid. The payment made by the highest
bidder is received in two types i.e. either TR-5 or TR-6. When payment is made
through TR-5, the department deposits the amount to the designated bank of
their department. In case of TR-6, the party directly deposits the amount to the
designated bank. But in case of TR-6, it is countersigned by the concerned
Inspector before deposit in the bank.
Auction goods are released to the parties only after receipt of payment to
the Govt. Exchequer and after showing the proof of deposit.
Disposal of specified goods also includes disposal of specified goods by sale in
auction, destruction.
Ext.98 (in 03 sheets) is the seizure memo dated 04/09/2013 by which CBI
has seized the documents reflected therein, from him and Ext.98(1), Ext.98(3)
and Ext.98(4) are his signatures with date and seal and Ext.98(2) is his
signature.
Ext.12 is the Circular No.549/8/80-LCI dated 18/12/1981 by Ministry of
Finance (DR’s) letter regarding disposal of seized/confiscated drugs formulation.
As per the circular, the instructions of the competent authority with regard to
sub-standard/expired specified goods which are to be destroyed is to be done by
adhering to norms prescribed for that purpose. In this case letter has been sent
to the concerned authority such as, Drugs Controller etc., but no response has
been received to the department from the concerned authority.
53
Ext.13 (in 04 sheets) is the Govt. of India, Ministry of Finance facility
No.2/2008 dated 8th April, 2008 with regard to section 11 J, K, L & M of Custom
Act with regard to auction of Phensedyl cough linctus during 2008 to 2010
through disposal of specified goods through e-auction conducted by Head Office,
Shillong their office has not received any intimation/information from the
purchaser who has purchased the Phensedyl through auction.
Ext.99 is the TR-5 Receipt book page No.B-31614 vide GDR No.171/08
and 08/09 to Sri Sumit Dhar, Son of Sri J.K. Dhar of Dhar Drug Agency on
05/02/2010 vide TR-6 No.28/09-10 dated 05/02/2010. Amount received is
Rs.22828/- for sale of 439 Phensedyl bottles. Ext.99(1) is the signature of the
then Inspector, Sri M.P. Acharjee and he identifies his signature.
Ext.100 is the TR-5 Receipt book page No.B-31616 vide GDR No.132/08
(Part) to Sri Sumit Dhar, Son of Sri J.K. Dhar of Dhar Drug Agency on
15/02/2010 vide TR-6 No.29/09-10 dated 15/02/2010. Amount received is
Rs.11232/- for sale of 216 Phensedyl bottles. Ext.100 (1) is the signature of the
then Inspector, Sri M.P. Acharjee and he identifies his signature.
Ext.101 is the TR-5 Receipt book page No.B-31627 vide GDR No.24/09
(Part) to Sri Sujit Roy, Son of Sri Sunil Roy of M/S Shova Drug Distributor on
17/05/2010 vide TR-6 No.05/10-11 dated 17/05/2010. Amount received is
Rs.5,58,135/- for sale of 11850 Phensedyl bottles. Ext.101(1) is the signature of
the then Inspector, Sri M.P. Acharjee and he identifies his signature.
Ext.102 is the TR-5 Receipt book page No.B-31636 vide GDR No.54/09
and 64/09 to Sri Anup Kr. Sen of M/S Sen Drug Distributor on 15/07/2010 vide
TR-6 No.14/10-11 dated 16/07/2010. Amount received is Rs.12,51,500 /- for sale
of 25030 Phensedyl bottles. Ext.102(1) is the signature of the then Inspector, Sri
M.P. Acharjee and he identifies his signature.
Ext.16 is the TR-5 Receipt book page No.B-31640 vide GDR No.24/09,
26/09, 27/09, 28/09, 44/09, 49/09, 60/09, 09/09 and 74/09 to Chhanda Deb of
M/S Kathia Baba Drug Distributor on 05/08/2010 vide TR-6 No.18/10-11 dated
06/08/2010. Amount received is Rs.748176/- for sale of 18617 Phensedyl bottles
54
and 72 Corex bottles. Ext.16(1) is the signature of Sri M.P. Acharjee and he
identifies his signature.
Ext.18 is the TR-6 No.18/10-11 dated 06/08/2010. Amount received is
Rs.748176/-. For deposit of sale proceeds of seized/confiscated goods under A/L
No.21 dated 02/03/2010 vide bid list No.20/10-11 dated 05/08/10 against GDR
No.24/09, 26/09, 27/09, 28/09, 44/09, 49/09, 60/09, 09/09 and 74/09 both
realised under TR-5 No.B-31640 dated 05/08/10. Ext.18(1) and Ext.18(2) are the
signatures of Sri M.P. Acharjee and he identifies his signature. Ext.18 is in the
handwriting of Sri M.P. Acharjee and he identifies his handwriting.
Ext.17 is the TR-5 Receipt book page No.B-31647 vide GDR No.20 /09, to
M/S Wings Drug Distributors Licence No.KRJ/3362 and KRJ/3363 on 03/09/2010
vide TR-6 No.25/10-11 dated 03/09/2010. Amount received is Rs.13,00,000/- for
sale of 32484 Phensedyl bottles. Ext.17(1) is the signature of Sri M.P. Acharjee
and he identifies his signature.
Ext.19 is the TR-6 No.25/10-11 dated 03/09/2010. Amount received is
Rs.13,00,000/-. For deposit of sale proceeds of seized/confiscated goods under
deposit of ASP against GDR No.20/09 vide S/case No.01/CL/EXP/PREV/SIL/08-09
dated 10/02/09, A/L No.21 dated 02/03/10 under B/list No.27/10-11 dated
03/09/10 realised vide TR-5 No.B-31647 dated 03/09/2010. Ext.19(1) and
Ext.19(2) are the signatures of Sri M.P. Acharjee and he identifies his signature.
Ext.19 is in the handwriting of Sri M.P. Acharjee and he identifies his
handwriting.
Ext.103 is the TR-5 Receipt book page No.B-31656 vide GDR No.118/09, 122/09,
12/10, 34/10 and 116/10 to M/S Wings Drug Distributors on 12/10/2010 vide TR-
6 No.33/10-11 dated 13/10/2010. Amount received is Rs.47100/- for sale of 943
Phensedyl bottles. Ext.103(1) is the signature of Sri M.P. Acharjee and he
identifies his signature.
Ext.104 is the TR-5 Receipt book page No.B-31660 dated 28/10/2010
vide GDR No.79/09, 83/09 (Part), 97/09 (P), 12/2010 (P) to Sri Gautam Dhar
ofM/S Dhar Drug Agency vide TR-6 No.37/10-11 dated 29/10/2010. Amount
55
received is Rs.5840/- for sale of 124 Phensedyl bottles. Ext.104(1) is the
signature of Sri M.P. Acharjee and he identifies his signature.
Ext.105 is the TR-5 Receipt book page No.B-31662 dated 22/11/10 vide
GDR No.44/09 and 83/09 to Chhanda Deb M/S Kathia Baba Drug Distributors on
vide TR-6 No.39/10-11 dated 22/11/2010. Amount received is Rs.1,551/- for sale
of 33 Phensedyl bottles. Ext.105(1) is the signature of Sri M.P. Acharjee and he
identifies his signature.
Ext.106 is the TR-5 Receipt book page No.B-31663 dated 22/11/2010
vide GDR No.35/10 (P) to Sri Pannalal Nag of M/S Dipali Pharma & Surgical on
vide TR-6 No.40/10-11 dated 23/11/2010. Amount received is Rs.14,90,000/- for
sale of 29980 Phensedyl bottles. Ext.106(1) is the signature of Sri M.P. Acharjee
and he identifies his signature.
Ext.107 is the TR-5 Receipt book page No.B-31671 dated 21/12/10 vide
GDR No.25/10 to Sri Abhijit Bhattacharjee M/S Nilima Medical Hall vide TR-6
No.48/10-11 dated 22/12/2010. Amount received is Rs.720/- for sale of 16 Corex
Cough Syrup bottles. Ext.107(1) is the signature of Sri M.P. Acharjee and he
identifies his signature.
Ext.108 is the TR-5 Receipt book page No.B-31683 dated 20/04/11 vide
GDR No.109/09, 117/09, 118/09, 08/10, 10/10, 12/10, 46/10, 119/10, 128/10 to
M/S Wings Drug Distributors vide TR-6 No.01/11-12 dated 21/04/11. Amount
received is Rs.40,285/- for sale of 820 Phensedyl bottles. Ext.108(1) is the
signature of Sri M.P. Acharjee and he identifies his signature.
In respect of maintenance of TR-5 & TR-6 with regard to auction during
the concerned period, the respective Customs Inspector who has put his
signature therein, used to maintain and fill up the said documents in his
handwriting.
Ext.109 is the letter No.C.NO.viii(25) 25/CUS/DISP/SH/08-09/2491-97(B)
dated 18th June, 2010 addressed to the Deputy Commissioner, Customs
Preventive Division, Karimganj for disposal of medicines/drug formulation by Sri
L.S.Vanchhawng, Joint Commissioner. Ext.109(1) is the signature of Sri
56
L.S.Vanchhawng, Joint Commissioner which he identifies. This letter inter-alia
prescribed for consultation with State Drug Controller/Zonal & Port Officers of
Drug Controller of India at different stages from the time of seizure till disposal,
value and drawal of representatives samples from the branded lots for testing
and analysis of such samples at Drug Testing Lab. However, instances have
come to notice wherein it is found either there were considerable delay in
consulting the concerned State Drug Control Authority or the concerned official
did not pay heed to the request made by the Department timely or the testing
laboratory took excessive time to complete the analysis and forwarding the test
report. As a result, difficulties being faced by the disposal units to dispose of
such goods well within the expiry date and in few cases the consignment of
drugs/medicines got expired by the time test reports were received from the
concerned authority resulting destruction of the same leading to loss in revenue.
It is therefore desired that henceforth all seizures of drugs/medicines should
immediately be taken up with the concerned drug control authority and the
process of physical examination and drawal of sample should invariably be
completed within 10 working days from the date of seizure. However, in situation
where the services of the concerned official of drug control authority cannot be
availed during the specified period, the alternative arrangement for drawal of
sample/forwarding to testing laboratories may be worked out in consultation with
the concerned drug control authority. (Your personal supervision in such situation
will be highly appreciated).
Ext.110 (in 02 sheets) is the letter No.C No.viii(25) 25/CUS/DISP/SH/08-
09/1511-17 (A) addressed to the Deputy/Assistant Commissioner, Customs
Preventive Division, Agartala/Aizal/Dhubri/Dimapur/Guwahati/Imphal/Karimganj
with regard to sale/auction of habit forming drugs, viz, Phensedyl cough linctus
etc., by Sri S.K. Chakraborty, Joint Commissioner along with enclosure (Under
objection) letter No.HSD/Misc./36/99/ Pt/2162 dated 19/05/2010 received from
the Drugs Controller, Assam, Hengrabari, Guwahati with regard to auction of
habit forming drugs like, Phensedyl. Vide Ext.110 it has been desired that the
instructions as contained in the letter No.HSD/Misc./36/99/Pt/2162 dated
19/05/2010 are strictly adhered to while disposing seized/confiscated habit
57
forming drugs like, Phensedyl etc. It has also been requested to furnish the
desired particulars directly to the Drugs Controller, Assam, Hengrabari, Guwahati.
As per the enclosure (Under objection) to Ext.110 addressed to the
Commissioner of Customs (Prev.), NER, Shillong, it is stated that every now and
then the Customs Deptt., seized habit forming drugs from different parts of NE
Region and after due test of seized articles, it is auctioned in the opened market.
The article is purchased mostly by Cachar/Karimganj District whole-seller
(Medicines), but while selling the drugs, your office (Custom) do not examine
some serious points nor they discuss any matter with Drugs Deptt. The
Phensedyl Cough Linctus is restricted sale item in Assam and the Drug Deptt., do
not allow the sale of such item from Company Depot or C&F agent unless the
purchaser produces a certificate from the drug department. It has also been
reported that some drugs items has already been sold to unlicensed firm by
Customs Deptt. The matter was discussed in the meeting held at NEIGRIMS,
Shillong of NE Drugs Controller with Drugs Controller General (India) on
17/05/2010.
It has also been requested vide the said letter to issue instruction to all
the Custom Offices not to sell any drugs item without taking drug control Deptt.
into confidence. It has also been requested to provide a list of drug seized during
2009-10, purchaser name and address to verify the validity of their licenses and
utilization certificate of the purchased items. Ext.110(1) is the signature of Sri
S.K. Chakraborty, Joint Commissioner and he identifies his signature. Ext.109 and
Ext.110 are contained in Ext.22 (file).
Ext.14 is the 3rd bid list, serial No.20/10-11 dated 05/08/2010 for 18627
bottles of Phensedyl and 72 bottles of Corex cough Syrup. This bid is accepted by
Chhanda Deb of Kathia Baba Drug Distributor for an amount of Rs.7,48,176/-.
Ext.14(1) is the signature of Sri M.P. Acharjee who has assisted in this bid.
Ext.14(2) is the signature of Sri B.B. Adhikari, Deputy Commissioner who has
supervised the auction and Ext.14(3) is the signature of Sri Sagar Kr. Dutta,
Superintendent of Disposal, who has conducted the auction and he identifies
their signatures.
58
Ext.15 is the 3rd bid list, serial No.27/10-11 dated 03/09/2010 for 32484
bottles of Phensedyl. This bid is accepted in favour of Arijit Bhattacharjee of M/S
Wings Drug Distributor for an amount of Rs.13,00,000/-. Ext.15(1) is the
signature of Sri M.P. Acharjee who has assisted in this bid. Ext.15(2) is the
signature of Sri B.B. Adhikari, Deputy Commissioner who has supervised the
auction and Ext.15(3) is the signature of Sri Sagar Kr. Dutta, Superintendent of
Disposal, who has conducted the auction and he identifies their signatures.
Ext.14 and Ext.15 are contained in file Ext.22.
Ext.22 is the file No.VIII(25) 2/GO/KXJ/10 for correspondence on disposal
of goods by way of quotations/auction-cum-tender/direct sales in respect of
Phensedyl cough Linctus and after going through Ext.22, he does not find any
undertaking/declaration taken from the drug distributors who were awarded the
bid in auction of Phensedyl. If any declaration would have been obtained from
the respective bidders, it would have been there in Ext.22.
91. During cross-examination for accused M. P. Acharjee, PW-22 has
stated that he cannot say how many seizures of Phensedyl were done during his
tenure as Inspector (Disposal) at Karimganj. At least there were more than 10 to
15 seizures of Phensedyl were made during his tenure. Phensedyl seized in those
seizures were not auctioned. They might have finally destroyed with the
permission of the higher authority. Non auction of the seized Phensedyl and their
destruction may be said to be loss of revenue for the department. He cannot say
whether during his tenure as Inspector (Disposal), the instructions of the Drug
Authority of the State were followed completely. He cannot say either exactly or
roughly the number auction of Phensedyl which were conducted during the
tenure of Sri Sagar Kr. Dutta, Superintendent and Sri M.P. Acharjee. He does not
know whether Chhanda Deb or Arijit Bhattacharjee who are shown to be the
highest bidder in Ext.14 & Ext.15 respectively participated in any other bid.
He does not know whether for violation of the provisions of the Custom
Act, 1962 there is provision for penalty under the Act itself or it has been
prescribed in somewhere else.
59
He has no information as to whether any illegal gratification or benefits
were availed of by the Custom Officer at Karimganj from the auction purchasers.
He was not aware whether any complaint has been lodged in respect of any
custom official posted at Karimganj to the higher authorities regarding illegal
gratification or benefits from the auction purchasers.
He was not aware whether any enquiry as contemplated u/s 11M of the
Custom Act, 1962 has been carried out against Chhanda Deb or Arijit
Bhattacharjee.
92. During cross-examination for accused Sagar Kr. Dutta, PW-22 has
stated that since the month of June, 2010 till 31st May, 2012 he was posted at
Sutarkandi Land Custom Station. He does not have any personal knowledge
about the present case. He has deposed only after going through the records
and documents.
He admitted that the auction involved in this case was made after getting
approval of the Joint Pricing Committee. He also admitted that in the instant
case, several attempts were made by the Superintendent (Disposal) Sri Sagar Kr.
Dutta to dispose of the seized Phensedyl as per the direction of the authority but
due to non-getting of reserved price fixed by the Pricing Committee, those bids
were cancelled.
He further admitted that there is always pressure on the disposal section
from the superior authority to dispose of the seized medicines before it get
expired.
TR-6 is a departmental document. It is not available in the market. When
bid amounts were collected through TR-5, the amount is deposited in the bank
through TR-6. Generally bid amounts are collected from the bidders through TR-
5. He was not aware whether in all cases of auction TR-5 is required to be
maintained or not. TR-5 and TR-6 involved in this case are signed by the
Inspector.
Superintendent of the office of the Deputy Commissioner of Custom
Division, Karimganj was the custodian of all the documents seized through
Ext.98. He was not custodian of all those documents. Out of the documents
60
seized through Ext.98, only 02 numbers of TR-6 have been exhibited by him in
this case.
Out of exhibited TR-5, Ext.99 to Ext.108; Ext.16 and Ext.17, only TR-5
vide Ext.16 and Ext.17 are relevant in this case. Ext.16 and Ext.17 TR-5 show
that bid amounts were received from bidders and Ext.18 & Ext.19 TR-6, show
that the amounts were deposited in the Govt. Account through State Bank of
India, Karimganj. There was no loss of Govt. revenue.
Ext.12, circular is pertaining to destruction of seized drugs.
Ext.A(Ext.51), Ministry of Finance Circular regarding seized/confiscated
goods, Category 2 of this circular, stipulates that medicines and drugs which
remain efficacy only for limited period has to be disposed of within 6 (six)
months from its seizure or where the date of expiry is indicated. Phensedyl cough
linctus fall under this category.
Ext.13 pertains to the guidelines of the disposal of goods through e-
auction conducted by the Head Office. The auctions in question are neither e-
auction nor these are conducted by the Head Office.
As TR-5 & TR-6 are departmental documents, those have to be filled up
by the departmental officers. While working as Inspector (Disposal), He also used
to fill up TR-5 and TR-6 and signed those documents.
Every page of the file Ext.22 has double pagination and double pagination
does not tally to each other. It seems that the pagination indicated by black ink
are written by one person only.
In a suggestion put to him he admitted that on going through the
Ext.109 document in the court, He deposed in his examination-in-chief.
Ext.22(A) and Ext.22(B) show that the requirement as per Ext.109, for
testing Phesedyl cough linctus by the Inspector of Drugs, Karimganj was fulfilled
by the accused Sagar Kr. Dutta.
The enclosure (2nd sheet) of Ext.110 is a photocopy and is not certified to
be true copy. The contents of Ext.109 and Ext.110 are almost similar.
61
He never worked with S.K. Chakraborty, Joint Commissioner Customs
Division, Karimganj. However, He can identifies his signature as we received day
to day official correspondence.
There is nothing wrong in maintaining Ext.14 and Ext.15 Bid lists. The bid
amounts are also deposited in the Govt. Account.
He admitted that the declaration from the successful bidders are required
only in the e-auction and he has not exhibited any document to show that
declaration from the successful bidders is required in case of all auctions.
In a suggestion put to him he denied that his examination-in-chief is
exaggeration of procedures, circulars and documents and he has supplemented
many things in his examination-in-chief without any documentary proof.
In another suggestion put to him he denied that he has deposed falsely in
this case.
93. During cross-examination for accused Chhanda Deb & Arijit
Bhattacharjee, PW-22 has stated that he does not have any personal
knowledge about this case. He cannot say whether the signature of Chhanda Deb
was forged by M.P. Acharjee in Ext.16 or not. In general, the intended bidders
are required to go to the Customs Office and perform all the formalities. He
cannot say as to whether in this particular case, the general procedure was
followed or not. He cannot say whether the signature of Chhanda Deb in Ext.14
and Arijit Bhattacharjee in Ext.15 were forged by custom officials or any other
person. No date is mentioned in Ext.14 and Ext.15 along with the signatures of
Chhanda Deb and Arijit Bhattacharjee respectively.
He cannot say in Ext.105 whether the signature of Chhanda Deb was
forged by customs officials or any other person. It is mandatory for the highest
bidder to give the undertaking/declaration. He was not aware about the
signatures given in Ext.17 and Ext.19 by Sri Arijit Bhattacharjee. If it is written in
the tender condition that the security money is to be paid in that case, it is
mandatory for the bidder to deposit the security amount. He cannot say why the
mandatory security deposit was not taken in this case. It is compulsory for the
Customs officials to obtain declaration/undertaking from the highest bidder
62
immediately after completion of the bid as per the customs Circular. He was not
aware about the fact that there is a connivance of the customs officials with any
other person regarding auction of the Phensedyl.
94. PW-23, Smti R.M. Kharsyntew, C.J.M. Nagaon, has stated that she has
recorded the statement of witnesses, Sri Digendra Deb and Sri Arpan Das on
29.09.2014. On 30.09.2014, she has recorded the statement of Bipul Dhar, Sri
Chinmoy Roy & Prasanta Das, in connection with this case. She has proved
Ext.30, 23, 33, 26 & 31, which are the 164 statements of Sri Digendra Deb, Sri
Arpan Das, Sri Bipul Dhar, Sri Chinmoy Roy and Sri Prashanta Das. The same are
her handwriting. She has also proved Ext.30(1), which is the signature of
Digendra Deb. Ext.23(1) and Ext.23(2) are the signature of Sri Arpan Das and
Ex.31(1) is the signature of Sri Bipul Dhar, Ext.26(1) is the signature of Sri
Chinmoy Roy and Ext.31(1) is the signature of Sri Prashanta Das, which were put
before him and Ext.30(2), Ext.23(3), Ext.33(2), Ext.26(2) & Ext.31(2) are his
signatures thereon. All the witnesses have given their statement voluntarily.
95. During cross-examination for accused Sagar Kr. Dutta, Mukti
Pada Acharjee & Arijit Bhattacharjee, PW-23 has stated that Exts.30, 23,
33, 26 and 31 do not disclose in connection with which case the statements are
recorded. In the said exhibits, it is also not indicated that these were recorded
u/s 164 Cr.P.C. However, these are forms which are used for recording of 164
statement.
96. Defence has not cross-examined the witness for accused
Chhanda Deb.
97. PW-24, Sri L. Loganathan, CFSL, Pune as Assistant Director has stated
that he has passed M.Sc degree in Forensic Science with Questioned Documents
Examination as one of the subject in the year 1985. He has about 33 years of
service in questioned document examination. He has examined more than 1000
cases comprising of about one lac exhibits. He has also tendered evidence as
expert witness in many courts across the country.
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On 10th October, 2014 he was posted as Scientist-B at CFSL, Guwahati.
Certain documents in relation to this case were referred by the HOB, CBI, ACB,
Shillong vide letter No.DPSHG/2014/3353/RC 2(A)/2013-SHG dated 07/10/2014.
The case was received by our office on 10/10/2014 and the case was endorsed
to him for examination.
The documents were scientifically examined by him and the opinion
No.CFSL (G)/54/2014/DOC/C/2014/39 dated 31/10/2014, along with his reasons
for opinion was sent to the HOB, CBI, ACB, Shillong. The details of the
documents examined by him are as follows:-
Documents marked Q1 to Q19, S1/1, S1/2, S2/1 to S2/9, S3/1, S3/2,
S4/1, S4/2, S5/1 to S5/4, S6/1 to S6/12, S7/1 to S7/6, S8/1 to S8/10 and A1 to
A22 in 68 sheets + one volume. All the documents examined by him bears office
stamp with relevant case number written on it.
Ext.112 is his opinion No.CFSL (G)/54/2014/DOC/C/2014/39 dated
31/10/2014 in 03 sheets. Ext.112(1) is his signature and Ext.112(2) is also his
signature with official seal. Ext.112(3) is the signature of the then Deputy
Director, Mr. M.C. Joshi forwarding the report.
Ext.113 are the reasons for opinion No.CFSL (G)/54/2014/DOC/C/2014/39
dated 31/10/2014 in 05 pages given by him and Ext.113(1) to Ext.113(4) are his
signatures and Ext.113(5) is his signature with official seal.
Para 2 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S1/1, S1/2 and A1 to A9 also wrote the red enclosed
signatures similarly stamped and marked Q2 and Q5.”
Q2 is Ext.16(2) and Q5 is Ext.14(5), S1/1 and S1/2 is contained in Ext.42 in 02
sheets). Ext.114 (in 06 sheets) is the account opening form in the name of M/S
Kathia Baba Drug Distributor (Under objection) and A1 to A9 is contained in
Ext.114. This para relates to signatures reading Chhanda Deb.
Para 3 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S2/1 to S2/3 and A10 to A14 did not write the red enclosed
signature similarly stamped and marked Q6.”
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S2/1 to S2/3 (in 03 sheets) is contained in Ext.32. Q6 is Ext.14(4). A10 to A14 is
contained in Ext.115. Ext.115 is the account opening form in the name of
Prashant Das of United Bank of India, Karimganj Branch in 05 sheets (under
objection). This para relates to signatures reading Prashant Das.
Para 4 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S3/1, S3/2 and A15 to A19 also wrote the red enclosed
signatures similarly stamped and marked Q4 and Q9.”
Q4 is Ext.17(2), Q9 is in Ext.15(9), S3/1 and S3/2 in 02 sheets is contained in
Ext.43, A15 to A19 is contained in Ext.116. Ext.116 is the account opening form
of Assam Gramin Vikash Bank, Karimganj Branch in the name of.
Arijit Bhattacharjee in 03 sheets (under objection). This para relates to signature
reading Arijit Bhattacharjee
Para 5 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S4/1, S4/2 and A20 to A22 did not write the red enclosed
signature similarly stamped and marked Q11.”
Q11 is in Ext.Ext.15(4); S4/1 and S4/2 in 02 sheets in contained in Ext.27 and
A20 to A22 is contained in Ext.117. Ext.117 is the account opening form of
Punjab National Bank in the name of Sri Chinmoy Roy (Under objection). This
para relates to signature reading Chinmoy Roy.
Para 6 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S5/1 to S5/4 also wrote the red enclosed signatures
similarly stamped and marked Q7, Q13 and Q16 to Q19.”
Q7 is Ext.14(3), Q13 is Ext.15(3), Q16 is Ext.20(1), Q17 is Ext.20(2), Q18 is
Ext.21(1), Q19 is Ext.21(2) and S5/1 to S5/4 in 04 sheets are contained in
Ext.53. This para relates to the person stated as Sri Sagar Kr. Dutta.
Para 7 of Ext.112 reads “the person who wrote the blue enclosed signatures
stamped and marked S6/1 to S6/3 also wrote the red enclosed signatures
similarly stamped and marked Q1, Q3, Q8, Q12, Q14 and Q15.”
65
Q1 is Ext.16(1); Q3 is Ext.17(1); Q8 is Ext.14(1); Q12 is Ext.15(1); Q14 is
Ext.18(1); Q15 is Ext.19(1); S6/1 to S6/3 in 03 sheets is contained in Ext.54. This
para relates to the person stated as Sri Mukti Pada Acharjee.
Ext.113 is the detail reasons as to how he has arrived at the opinion Ext.112. His
opinion was technically reviewed by Sri M.C. Joshi, HOD (Deputy GEQD)
98. During cross-examination for accused Sagar Kr. Dutta & Mukti
Pada Acharjee, PW-23 has stated that finger prints are unique which do not
change in life time whereas handwriting of a person varies in one’s life time. He
admitted that the process of examining finger prints are different from that of
examination of handwriting. Identity of both finger prints and handwriting are
based on probability. Examination of handwriting of comparison, evaluation and
possible conclusion arrived by the expert is a human thought process.
In a suggestion put to him he denied that handwriting is a snapshot of
the brains inner thinking at the time writing was written. Writing is a
subconscious act.
Brain must co-ordinate to produce a handwriting. He cannot comment
on that mind is busy in making hundreds of decisions per minute when
handwriting occurs. There are persons of multiple personalities who are capable
of thinking many things at a time. Writing is the outcome of neuro-muscular co-
ordination.
A person can consciously change some of his decisions that the mind
has to make in writing. A person can alter his handwriting. Similar writings for
the second time by a person always subject to variation, which is very natural.
Position of writing, nature of writing support, writing condition, effect of external
condition are responsible for nature of writing superficially.
A person cannot write two signatures perfectly alike, however, if two
signatures look perfectly alike, then certainly either one of them is forged.
Writing also depends upon the surface condition. In the case of request standard
handwriting (specimen), the person giving the writing may be interested in
proving or disproving the questioned writing. He can disguise his writing also
66
while giving his specimen writings. In case of disguised writings, the writings are
inconsistent among themselves. The universal fact is that writing of a person
varies in course of time.
In the instant case the questioned documents which he has examined,
are of the year 2010 whereas Ext.32 and Ext.27 specimen writings are of the
year 2014 and 2013 respectively. The admitted writings of Prashanta Das and
Chinmoy Roy vide Ext.115 and Ext.117 are of the year 2008 and 2002
respectively. He has not privy to Ext.115, Ext.116 & Ext.117. These are the
bank’s documents which were never dealt with by him except the role of
examining the signatures therein after these were sent to him by CBI. He cannot
say how these documents were procured by CBI.
In a suggestion put to him he denied that the surface of the paper in
questioned documents and standard documents are not the same. He admitted
that surface of writing and support of writing are not the same.
In Para 3 of Ext.113 (reasons for opinion), he has not mentioned about
Pen pressure in respect of the standard writing. If quality of the papers are
different then, surface of each paper also differ and there is possibility of
superficial variations in the writing characters.
He also admitted that quality of papers of questioned documents and
standard documents are different. If surface is different there is possibility of
variation of line quality of writing.
The admitted writing of Chinmoy Roy is of the year 2002 whereas the
questioned documents are of the year 2010.
In Para 5 of Ext.113 (reasons for opinion), he has not mentioned about
Pen pressure in respect of the standard writing.
In another suggestion put to him he denied that he has wrongly applied
his thought process while coming to the conclusion in giving his opinion in the
instant case to make out the case for CBI.
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There must be two experts in examining independently and reporting of
the questioned documents examination of a case. In the instant case only he has
examined the documents independently.
99. During cross-examination for accused Chhanda Deb and rest of
the accused person, PW-24 has stated that he has not submitted any
documents before the court to show that he has about 33 years of service in
questioned document examination. He has examined more than 1000 cases
comprising of about one lac exhibits. He has no personal knowledge that his
expert opinion has been discarded in any case. He has not submitted any
document before the court to prove that the case was endorsed to him for
examination.
In a suggestion put to him he denied that two different persons execute
their signatures in a similar way.
100. During cross-examination for accused Arijit Bhattacharjee, PW-24
has stated that in case of Arijit Bhattacharjee he has opined on two questioned
documents i.e. marked as Q4 & Q9. Except these two documents no other
questioned documents were placed before him in respect of Sri Arijit
Bhattacharje. In his reasons Para 4 of the opinion i.e. Ext.113, he has considered
natural variations while arriving at the conclusion.
101. PW-25, Shri Paritosh Singha Choudhury, Deputy Manager, SBI, Regional
Business Office, Agartala North, has stated that on 31/01/2014 he was Deputy
Manager SBI, Karimganj Branch. He was directed verbally by his Chief Manager
to proceed to Circuit House, Karimganj on 31/01/2014 along one of his colleague
Sri H.L. Singh for being a witness in the instant case. When they reached Circuit
House, Karimganj, they were introduced one person namely Sri Prashanta Das by
CBI personnel and the Identity Card of Sri Prashanta Das was also shown to
them. CBI personnel told them that Prashanta Das will give his specimen
signature/writings and they have been called to be a witness of the same.
Prashanta Das gave his specimen signature/handwriting in their presence
voluntarily and after that they have put their signatures.
68
Ext.32 (in 09 sheets) are the specimen signature/handwriting of Sri
Prashanta Das, son of Late Pradip Ranjan Das, R/O- Bipin Paul Road, Karimganj
Bazar, Karimganj, Assam, which was taken at Karimganj Circuit House on
31/01/2014. Ext.32(10) to Ext.32(18) are his signatures with date and
designation and Ext.32(1) to Ext.32(9) are the signatures of his colleague Mr.
H.L.Singh with date & designation and he identifies his signatures.
102. During cross-examination for accused Sagar Kr. Dutta, PW-25 has
stated that he personally did not know Mr. Prashanta Das. In Ext.32 there is no
declaration with signature of Mr. Prashanta Das to the effect that he has given
his specimen signature/handwriting voluntarily. He cannot say who has filled up
the details of Mr. Prashanta Das in Ext.32.
103. During cross-examination for accused Mukti Pada Acharjee, PW-
25 has stated that he did not remember whether the specimen signatures were
taken on blank page or partly typed page.
104. Defence has not cross-examined the witness for others accused
persons.
105. PW-26, Shri Subrata Debnath, Sub-Inspector, CID, Agartala, has stated
that he was serving in Tripura Police and during the year 2009 to 2015. He was
on deputation in CBI, ACB, Shillong as Inspector. During the period while he was
posted at CBI, ACB, Shillong the instant case RC SHG2013A0002 dated
28/06/2013 u/s 120B/468 IPC and Custom Act Chapter IV B section 11(J), 11(K),
11(L) & 11(M) and section 13(2) r/w 13(1)(d) of P.C. Act was registered against
Sri Sagar Kumar Dutta and others and endorsed to him for its investigation.
Accordingly, he took up the investigation of the instant case on 04/07/2013.
Ext.118 is the FIR of the instant case in 07 sheets. Ext.118(1) to
Ext.118(3) are the signatures with date & seal of Sri N. Gogoi, the then HOB,
CBI, ACB, Shillong.
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Ext.119 is the forwarding of the FIR of the instant case bearing
No.DPSHG/2013/3033/RCSHG2013A0002 dated 28/06/2013 addressed to the
Special Judge CBI, Assam, Guwahati by Sri N. Gogoi, SP & HOB, CBI, ACB,
Shillong and Ext.119(1) is his signature which he identifies with date and seal.
On 26/08/2013, he has seized 04 numbers of documents from Sri
Haripada Rai, the then Superintendent Disposal, Customs Division, Karimganj
vide seizure memo dated 26/08/2013. Ext.11 is the said seizure memo by which
he has seized 04 numbers of documents reflected therein. Ext.11(1) & Ext.11(2)
are the signatures of Sri Haripada Rai, Superintendent Disposal and he identifies
his signatures since he put his signatures in his presence. Ext.11(3) is his
signature with date & seal.
Ext.98 (in 03 sheets) is another seizure memo dated 04/09/2013 by
which he has seized 10 numbers of documents reflected therein from Sri Tapash
Bhattacharejee, the then Inspector Disposal, Customs Division, Karimganj.
Ext.98(1) to Ext.98(4) are the signatures of Sri Tapash Bhattacharejee, the then
Inspector Disposal, Customs Division, Karimganj with date & seal which he
identifies since he put his signatures in his presence and Ext.98(5) & Ext.98(6)
are his initials and Ext.98(7) is his initial with date & seal.
In course of his investigation, he examined Sri Haripada Rai, the then
Superintendent Disposal, Customs Division, Karimganj and recorded his
statement u/s 161 Cr.P.C. He also examined other witnesses, namely Sri Tapash
Bhattacharjee, Sri Bipul Dhar, Sri Sumit Dhar, Sri Ritendra Deb, Sri Chinmoy Roy
etc. He has also examined some accused persons and also collected specimen
signatures/handwritings of Smti. Chhanda Deb; Sri Arijit Bhattacharjee and Sri
Chinmoy Roy.
Ext.42 (in 02 sheets) is the specimen signatures/handwritings of Smti.
Chhanda Deb it was taken by me in presence of witnesses namely Sri Debajit
Bhattacharjee and Sri Abhijit Nag; both of them are the officers of SBI,
Karimganj. Smti. Chhanda Deb put her specimen signatures/handwritings
voluntarily in presence of both the witnesses. Ext.42(1) & Ext.42(2) are the
signatures of Sri Debajit Bhattacharjee and Ext.42(3) & Ext.42(4) are the
signatures of Sri Abhijit Nag and he identifies their signatures. Ext.42(5) &
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Ext.42(6) are the signatures of Smti. Chhanda Deb which she has put at the time
of giving her specimen signatures/handwritings in his presence. Ext.42(7) &
Ext.42(8) are his signatures with date.
Ext.43 (in 02 sheets) is the specimen signatures/handwritings of Sri Arijit
Bhattacharjee was taken by him in presence of witnesses namely Sri Debajit
Bhattacharjee and Sri Abhijit Nag; both of them are the officers of SBI,
Karimganj. Sri Arijit Bhattacharjee put his specimen signatures/handwritings
voluntarily in presence of both the witnesses. Ext.43(1) & Ext.43(2) are the
signatures of Sri Debajit Bhattacharjee and Ext.43(3) & Ext.43(4) are the
signatures of Sri Abhijit Nag and he identifies their signatures. Ext.43(5) &
Ext.43(6) are the signatures of Sri Arijit Bhattacharjee which he has put at the
time of giving his specimen signatures/handwritings in his presence. Ext.43(7) &
Ext.43(8) are his signatures with date.
Ext.27 (in 02 sheets) is the specimen signatures/handwritings of Sri
Chinmoy Roy was taken by him in presence of witnesses namely Sri Debajit
Bhattacharjee and Sri Abhijit Nag; both of them are the officers of SBI,
Karimganj. Sri Arijit Bhattacharjee put his specimen signatures/handwritings
voluntarily in presence of both the witnesses. Ext.27(3) & Ext.27(4) are the
signatures of Sri Debajit Bhattacharjee and Ext.27(5) & Ext.27(6) are the
signatures of Sri Abhijit Nag and he identifies their signatures. Ext.27(1) &
Ext.27(2) are the signatures of Sri Chinmoy Roy which he has put at the time of
giving his specimen signatures/handwritings in his presence. Ext.27(7) &
Ext.27(8) are his signatures with date.
106. During cross-examination for accused Sagar Kr. Dutta, PW-26 has
stated that it appears from Ext.118 that the FIR in the instant case was
registered on the basis of source information. He was aware the provisions of
CBI Crime Manual so far it relates to registration and investigation of a case. He
did not investigate to know who submitted FIR in the instant case. He has
admitted that FIR does not disclose whether any preliminary enquiry was
conducted in the instant case or not. Although in the contents of the FIR it has
been repeatedly stated the “It is alleged”, he did not investigate to the effect to
know who has made those allegations. But he concentrated on the investigation
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to find out whether those allegations are correct or not. During the period of his
investigation, he has recorded the statements of witnesses, seized some
documents and collected specimen signatures/handwritings of three persons.
Thereafter, he handed over the case diary to the Inspector Mr. S.T. Khoute.
107. During cross-examination for accused Mukti Pada Acharjee &
Chhanda Deb, PW-26 has stated that there is no named witnesses in Ext.11,
the seizure memo. Ext.11 was prepared by him. In Ext.11 it has been mentioned
that Sri Haripada Rai handed over 04 numbers of documents to him on
26/08/2013 and accordingly, he seized those documents after preparing the
seizure memo. There is no named witness in Ext.98, the seizure memo. Ext.98
was prepared by him. In Ext.98 it has been mentioned that Sri Tapash
Bhattacharjee handed over 04 numbers of documents to him on 04/09/2013 and
accordingly, he seized those documents after preparing the seizure memo.
He has not exhibited the letter sent to Sri Haripada Rai & Sri Tapash
Bhattacharjee regarding production of documents mentioned in Ext.11 & Ext.98.
There is no mention in Ext.11 where the seizure/handing over took place, but in
the case diary No.5 dated 26/08/2013 it is clearly mentioned that Mr. Haripada
Rai, the then Superintendent Disposal, Customs Division, Karimganj appeared at
CBI, ACB, Office, Shillong and produced the aforesaid documents. Through letter
No.2013/4230/RCSHG2013A0002 Mr. Haripada Rai was asked to appear before
CBI Office at Shillong. This seizure was made at Shillong on 26/08/2013 from Mr.
Haripada Rai.
108. During cross-examination for accused Arijit Bhattacharjee, PW-26
has stated that there is no specific allegation against Arijit Bhattacharjee; but he
being the Proprietor of M/S Wing Drug Distributor invited to give statement u/s
161 Cr.P.C. During investigation, he never visited the business premises of M/S
Wing Drug Distributor or the residence of Mr. Arijit Bhattacharjee. He has not
seized the Godown Register from Mr. Haripada Roy and Mr. Tapash
Bhattacharjee.
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109. PW-27, Shri S. T. Khaute, Inspector, CBI, ACB, Imphal has stated that
he was posted in CBI, ACB, Shillong as Inspector of Police during the period 2012
to 2016. Vide order dated 08/04/2014 No.DPSHG2014/118/Misc./11, the instant
case was endorsed to him for investigation by the HOB, CBI, ACB, Shillong. He
took over the investigation of the instant case i.e. RC 2A2013SHG from Sri S.
Debnath, Inspector of Police.
After taking over the investigation, he examined and recorded statements
of witnesses as well as accused persons, collected and seized various documents,
obtained specimen signatures/handwritings of accused persons as well as other
persons also. Statements of some witnesses namely Bipul Dhar, Chinmoy Roy,
Prasanta Das, Arpan Das and Digendra Deb were also recorded u/s 164 Cr.P.C.
who gave their statements willingly, voluntarily and prosecution sanction was
also obtained. Before the case was endorsed to him vide order dated 08/04/2014
He also conducted part investigation in the instant case from 30/01/2014 to
21/02/2014 as per the orders of the then HOB, CBI, ACB, Shillong. Based on his
investigation he has filed charge sheet in the instant case. He has also sent the
specimen signatures/handwritings collected by him to CFSL, Guwahati for expert
opinion and CFSL, Guwahati vide opinion has confirmed the signatures of the
accused persons namely Sri Sagar Kr. Dutta; Sri Mukti Pada Acharjee; Smti.
Chhanda Deb and Sri Arijit Bhattacharjee @ Sanku on the questioned documents
and also gave negative opinion of other Drugs Distributor purportedly shown to
have participated in the auction.
Ext.120 (in 19 sheets) is the charge sheet of the instant case filed by him
on 14/09/2015 u/s 120B, 471 of IPC section 13(2) read with section 13(1)(d) of
the P.C. Act, 1988 and sections 132 and 136 of the Custom Act against Sri Sagar
Kr. Dutta, the then Superintendent Disposal, Karimganj Division; Sri Mukti Pada
Acharjee, the then Inspector Disposal, Karimganj Division; Smti. Chhanda Deb,
Proprietor of Kathia Baba Drugs Distributor, Karimganj, Assam and Sri Arijit
Bhattacharjee @ Sanku, Proprietor M/S Wing Drugs Distributor, Karimganj,
Assam. Ext.120(1) to Ext.120(19) are his signatures on each page of the charge
sheet and Ext.120(20) is the signature of Sri Ng. Khamrang, HOB, CBI, ACB,
Shillong with date and he identifies his signature.
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Ext.121 (in 02 sheets) is the forwarding letter No.DPSHG2015/3324/
RCSHG2013 (A) 0002 dated 14/09/2015 addressed to the Special Judge CBI
Assam, Panbazar, Guwahati forwarding the charge sheet of the instant case
along with the original relied on documents etc., to the Hon’ble Judge by Sri Ng.
Khamrang, HOB, CBI, ACB, Shillong. Ext.121(1) is the signature of Mr. Ng.
Khamrang with date which he identifies.
Ext.60 is the seizure memo dated 25/07/2014 by which he has seized 05
documents reflected therein from Sri Ritendra Deb in presence of the
independent witness Sri C.M. Flavian. Ext.60(3) is his signature with date.
Ext.60(2) is the signature of Sri Ritendra Deb which he put in his presence and
Ext.60(1) is the signature of Sri C.M Flavian which is also put in his presence.
Ext.6 is the seizure memo dated 18/09/2014 by which he has seized 02
documents reflected therein (Drug Licence, Form 20B and Form 21B from M/S
Kathia Baba Drug Distributor) from Sri Ritendra Deb in presence of 02
independent witnesses namely, Sri Monmath Kr. Nath and Bappi Chakraborty.
Ext.6(3) is his signature with date. Ext.6(4) is the signature of Sri Ritendra Deb
which he has put in his presence and Ext.6(1) and Ext.6(2) are the signatures of
Sri Monmath Kr. Nath and Sri Bappi Chakraborty respectively which were also put
in his presence.
Ext.7 is the seizure memo dated 18/09/2014 by which he has seized 02
documents reflected therein (Drug Licence, Form 20B and Form 21B from M/S
Wing Drug Distributor) from Sri Arijit Bhattacharjee in presence of 02
independent witnesses namely, Sri Monmath Kr. Nath and Bappi Chakraborty.
Ext.7(3) is his signature with date. Ext.7(4) is the signature of Sri Arijit
Bhattacharjee which he has put in his presence and Ext.7(1) and Ext.7(2) are the
signatures of Sri Monmath Kr. Nath and Sri Bappi Chakraborty respectively which
were also put in his presence.
Ext.8 is the seizure memo dated 18/09/2014 by which he has seized 02
documents reflected therein (Drug Licence, Form 20B and Form 21B from M/S
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S.S. Drug Distributor) from Sri Prasanta Das in presence of 02 independent
witnesses namely, Sri Monmath Kr. Nath and Bappi Chakraborty. Ext.8(3) is his
signature with date. Ext.8(4) is the signature of Sri Prasanta Das which he has
put in his presence and Ext.8(1) and Ext.8(2) are the signatures of Sri Monmath
Kr. Nath and Sri Bappi Chakraborty respectively which were also put in his
presence.
Ext.9 is the seizure memo dated 18/09/2014 by which he has seized 02
documents reflected therein (Drug Licence, Form 20B and Form 21B from M/S
Sen Drug Distributor) from Sri Anup Kr. Sen in presence of 02 independent
witnesses namely, Sri Monmath Kr. Nath and Bappi Chakraborty. Ext.9(3) is his
signature with date. Ext.9(4) is the signature of Sri Anup Kr. Sen which he has
put in his presence and Ext.9(1) and Ext.9(2) are the signatures of Sri Monmath
Kr. Nath and Sri Bappi Chakraborty respectively which were also put in his
presence.
Ext.10 is the seizure memo dated 18/09/2014 by which he has seized 02
documents reflected therein (Drug Licence, Form 20B and Form 21B from M/S
Rupam Drug Distributor) from Sri Chinmoy Roy in presence of 02 independent
witnesses namely, Sri Monmath Kr. Nath and Bappi Chakraborty. Ext.10(3) is his
signature with date. Ext.10(4) is the signature of Sri Chinmoy Roy which he has
put in his presence and Ext.10(1) and Ext.10(2) are the signatures of Sri
Monmath Kr. Nath and Sri Bappi Chakraborty respectively which were also put in
his presence.
Ext.45 is the seizure memo dated 18/09/2014 by which he seized the
account opening form of M/S Sen Drug Distributor (Sri Anup Kr. Sen) for CC
Account No.08220500000433 from Sri Abhisekh Kr. Sinha. Ext.45(2) is his
signature with date.
Ext.58 is the seizure memo dated 20/08/2014 by which he seized
following documents from Sri Arijit Bhattacharjee – 1. Ledger Book of Wings
Drug Distributor containing 93 pages; 2. Cash memo of Wing Drug Distributor
from Serial No.1801 to 1900; 3. Photo copy of order of the Assistant
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Commissioner Customs (Preventive) Division Karimganj containing 04 pages; 4.
Prinout copy of Assam Gramin Vikash Bank, Karimganj statement in respect of
account No.CC 116 in the name of Mr. Arijit Bhattacharjee. Ext.58(3) is his
signature with date. Ext.58(2) is the signature of Sri Arijit Bhattacharjee with
date which was put in his presence and Ext.58(1) is the signature of the witness
Sri M.N. Bhattacharjee which was also put in his presence.
Ext.32 (in 09 sheets) are the specimen signatures/handwritings of Sri
Prashanta Das which was obtained by him in presence of independent witness Sri
Hidam Langdaingamba Singh and Paritosh Singha Choudhury. Ext.32(19) to
Ext.32(27) are his signatures with date.
Ext.53 (in 04 sheets) are the specimen signatures/handwritings of Sri
Sagar Kr. Dutta which was obtained by him in presence of independent witness
Sri Vanlalfan Khuongpui and Angelyn Ramneichieng. Ext.53 (9) to Ext.53 (12) are
him signatures with date.
Ext.54 (in 12 sheets) are the specimen signatures/handwritings of Sri
Mukti Pada Acharjee which was obtained by him in presence of independent
witness Sri Vanlalfan Khuongpui and Angelyn Ramneichieng. Ext.54 (25) to
Ext.54 (36) are his signatures with date.
Ext.122 is the letter No.DPSHG/2515 dated 23/07/2014 by Sri S.S.
Kishore, HOB, CBI, ACB, Shillong addressed to the Joint Commissioner, Income
Tax, Silchar Range, Cachar (Assam) asking for the Income Tax Return filed by
Smti. Chhanda Deb, Sri Arijit Bhattacharjee, Sri Prasanta Das, Sri Anup Kr. Sen,
Sri Chinmoy Roy, Sri Pannalal Nath, Sri Sumit Dhar and Sri Sujit Roy.
Ext.123 is the letter No.T-3/JCIT/SIL/2014-15/869 dated 01/08/2014
addressed to the HOB, CBI, ACB, Shillong by Sri M.K. Biswas, Assistant
Commissioner, Income Tax, Silchar Circle for Joint Commissioner of Income Tax,
Silchar Range in reply to Ext.122. Ext.123 was handed over to him by Sri Leivang
Chinkhomang Ngaite Office Superintendent in the office of Joint Commissioner,
Income Tax, Silchar Range, Cachar District. He also recorded the statement of Sri
Leivang Chinkhomang Ngaite U/S 161 Cr.P.C. as a witness in the instant case.
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Ext.124 (in 11 sheets both sides) is the certified true copy of Income Tax
Return filed in respect of Smti. Chhanda Deb of M/S Kathia Baba Drug Distributor
for financial year 2010-11 and Assessment year 2011-12. Ext.124 is certified by
Sri Leivang Chinkhomang Ngaite Office Superintendent in the office of Joint
Commissioner, Income Tax, Silchar Range, Cachar District and Ext.124(1) to
Ext.124(20) are the signatures of Sri Leivang Chinkhomang Ngaite Office
Superintendent in the office of Joint Commissioner, Income Tax, Silchar Range,
Cachar District. Ext.124 was handed over to him along with Ext.123 by Sri
Leivang Chinkhomang Ngaite Office Superintendent in the office of Joint
Commissioner, Income Tax, Silchar Range, Cachar District.
As per Ext.123, Sri Arijit Bhattachajee has not filed any Return for the
financial year 2010-11 in the name of Wing Drug Distributor.
He recorded the statement of Sri Digendra Deb u/s 161 Cr.P.C. In a
suggestion put to him he denied that PW.8-Sri Digendra Deb did not state before
him that “Arpan Das, Bipul Dhar and Mashoq Ahmed came to their residence to
obtain the signature of Smti. Chhanda Deb and then he called Smti. Chhanda
Deb and asked her to sign on the papers thinking that they were sent by his
brother who was at the Drug Store. At that time he did not know what was
about. But today he came to realise that they have been cheated. The signature
of his sister-in-law has been misused.”
In the instant case loss has been caused to the Government, in a way
had there been a genuine bidding the amount collected by the
Government/Customs department would have been much higher. Secondly, if the
goods/items in question have been in the possession of the shop owners, while
selling those goods/items tax would have been realised on sale of those goods to
the Government.
The actual amount of loss was not calculated during investigation as it
was not possible to give the exact amount of loss by genuine bidding or by actual
sale. Whatever illegalities/offences he found to have been committed by the
accused persons during his investigation is reflected in the charge sheet filed by
him.
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110. During cross-examination for accused Sagar Kr. Dutta, PW-27 has
stated that at page 113 of case diary, the endorsement of the HOB, CBI, ACB,
Shillong is available allowing him to undertake the part investigation. He has
started regular investigation in this case on and from 08/04/2014.
He is not the proper officer as per the Custom Act, 1962.
He admitted that he has not collected any evidence to substantiate that
Phynsedyl cough linctus are highly demanded in Bangladesh and the price fetch
is average Rs.300 per bottle. He also admitted that he has not collected any
evidence to show that the Phynsedyl in question were illegally exported to
Bangladesh.
He further admitted that he has not obtained any sanction u/s 137 of the
Custom Act, 1962 from the Principal Commissioner of Customs or Commissioner
of Customs against the accused persons.
He has not seized any disposal manual from any witness. He does not
remember whether any witness stated to him regarding the disposal manual of
Customs Department.
He did not look into Ext.22(C) i.e. public notice published in the local
newspaper regarding the auction in question.
He does not remember whether he has seized any godown Register of
Custom Disposal Section, Karimganj. However, no such godown Register is relied
upon in this case.
He admitted that TR-5 and TR-6 are vouchers. He is not aware if except
TR-5 and TR-6, no other voucher is required for transportation of auction goods
from Godown of Disposal Section to any destination.
He further admitted that the witness Sri Arpan Das did not name
Digendra Deb while giving his statement u/s 161 Cr.P.C. recorded by him. He got
his statement recorded by Magistrate at Shillong. He also relied upon the said
statement as a document in this case. He knew that when a statement of a
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witness is recorded before a Magistrate, the statement of the said witness
recorded u/s 161 Cr.P.C. has got no valid.
He admitted that the witness Arpan Das also did not state to me that
Mashoq Ahmed and Bipul Dhar carried TR-5 and bid list, specifically, to the
residence of Chhanda Deb. However, he mentioned about carrying some papers.
He also admitted that that during his investigation he did not find any evidence
that accused customs officers personally collected any drug licence from Drug
Dealers or from the office of the Drug Inspector, Karimganj.
He further admitted that he has examined and collected specimen writings of Sri
Prasant Das.
He cannot say who had made the correction in Ext.50 with black ink. He
has typed the printed part of Ext.53 and Ext.54 i.e. specimen writings of accused
Sagar Kr. Dutta and Mukti Pada Acharjee respectively. In Ext.53 and Ext.54 there
is no declaration with signature of Sagar Kr. Dutta and Mukti Pada Acharjee that
the specimen writings were given voluntarily.
He admitted that the auction in question was conducted as per the rate
quoted by the pricing committee. Earlier 2/3 bids were cancelled for not getting
the reserved price fixed by the pricing committee. The Phensedyl relevant in the
two relevant auctions were disposed of as per the rate given by the pricing
committee.
In a suggestion put to him he denied that there is no loss of Government
revenue caused in this case and the reason of loss stated by him in his evidence
in chief is mere assumption without any material on record.
He does not agree to the suggestion that the materials on record suggest
that bids in question were genuine bids.
He was not seized any Cash Book, Ledger Account Book and Stock Book
of Kathia Baba Drug Distributor and Wing Drug Distributor nor any such
document is relied upon. However, Ext.59 is the Ledger Book of Wing Drug
Distributor which he seized in presence of witnesses. There is no certification in
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Ext.59 by the owner of the Wing Drug Distributor that this is a ledger account
book of his firm. In Ext.59 there is no signature of Arijit Bhattacharjee. He did
not send Ext.59 to handwriting expert regarding authorship.
In a suggestion put to him he denied that Ext.59 is not a ledger account
maintained by Wing Drug Distributor.
He also did not make any search to the premises of Kathia Baba Drug
Distributor and Wing Drug Distributor.
In a suggestion put to him he denied that everything has been done
genuinely in the instant case and he has submitted charge-sheet on assumption.
In another suggestion put to him he denied that his investigation in the
case is perfunctory.
Although he examined Mashoq Ahmed, he did not make him witness or
accused in this case.
111. During cross-examination for accused Mukti Pada Acharjee, PW-
27 has stated that he was aware that under the Custom Act, 1962, there are
provisions under which custom officials can initiate proceedings against the
defaulter for the violation of the provisions of the Custom Act, 1962. He does not
remember whether any such proceeding was initiated against any of the accused
Drug Distributors of this case. From the records of the case, it cannot be
ascertained whether any such proceedings were initiated against any of the Drug
Distributors.
He cannot say whether the Income Tax Return of Chhanda Deb i.e.
Ext.124 would cover the period under which the auction in question took place.
The Ext.124 would not reflect the turnover of Smti. Chhanda Deb or her Firm for
the period in question. He has not exhibited the trading and profit & loss account
of Chhanda Deb or her firm for the relevant financial year in which the auction
took place. He has also not exhibited the balance sheet of Smti. Chhanda Deb
for the relevant financial year.
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He has not exhibited the profit & loss account and the balance sheet of
the other accused Drug Distributors or their firms.
Section 2(34) of the Custom Act, 1962 defines the term “Proper Officer”.
As he understands that as per section 11 (M) of the Custom Act, 1962, it is only
after an enquiry is made by a proper officer and then the purchaser or transferee
is not either readily traceable or is a fictitious person, it shall be presumed that
the goods have been illegally exported and the person, who had sold or
otherwise transferred such goods has been concerned in such illegal export. In
the instant case he has not exhibited any enquiry report by proper officer of
Customs regarding the sale of Phensedyl. The record of the case he has not
exhibited any document which would go to show the price at which the auction
Phensedyl was sold. As per the version of the customs officials, there were two
attempts made to sell the Phensedyl by auction, but no purchaser turn out and
finally in the third attempt, the Phensedyl could be auctioned.
He stated that as far as his knowledge is concerned the goods purchased
in auction, if sold by the purchaser, such goods are not exempted from payment
of sales tax. During his investigation he did not find any proceeding initiated by
Sales Tax Authority against the accused auction purchasers for evasion of sales
tax. He has not exhibited any document in the record to support his contention in
Para 17.5 of the charge sheet to the effect that Phensedyl Cough Linctus is
highly demanded in Bangladesh and the price fetch at Bangladesh is average of
Rs.300/- per bottle.
He has not exhibited any document or materials which would go to show
that accused Nos.1 and 2 were granted monetary or other benefits by the
accused auction purchasers. As per the statement of Mr. Sushen Mazumder
(Drug Inspector, Karimganj), Drug Department was not informed with regard to
auction and therefore, they did not make any enquiry about the goods so sold in
auction. He cannot say whether the Drug Department was barred from holding
any enquiry against the accused bidders regarding the goods sold in auction after
being informed by him during the investigation. During his investigation he did
not look into whether any purchaser was willing to give higher price for the
Phensedyl than the amount procured in auction. During his investigation he had
81
not worked out any figure regarding the loss which was caused to the
Government. The amount quoted in the auction sale was deposited in the
Government account. The amount of security deposit that has not been collected
was Rs.50,000/- and the bid amounts were Rs.7,48,176/- and Rs.13,00,000/-,
which were much higher than the security deposit. The security deposit was
meant to be refunded after the auction. There is no loss caused to the
Government so far as non-deposit of security of Rs.50,000/- is concerned.
He was aware that under the Custom Act, 1962, there are provisions for
taking action for violation of provisions of Custom Act, 1962 by the Customs
Authorities. There is nothing on record of the investigation to show that against
any of the accused purchasers, the Customs Deptt. had initiated any proceeding
under the provisions of the Custom Act, 1962.
No charges have been labelled against 08 persons named in Para 17.13
of the charge-sheet.
During his investigation he did not find any direct evidence regarding
illegal export of Phensedyl to Bangladesh by the accused purchasers.
The price fixed for the auction was by the Joint Pricing Committee of the
Customs Deptt. During his investigation Customs stock Ledger was not collected
and therefore, he cannot say the Phensedyl in question were shifted from
godown of the Customs Deptt. and were handed over to the auction purchasers.
However, there are oral evidence of PW.10 Sri Bipul Dhar regarding the transfer
of Phensedyl to the auction purchasers.
In a suggestion put to him he denied that accused No.2 has not
committed any offence and the charges levelled against him are false and
fabricated.
112. During cross-examination for accused Arijit Bhattacharjee &
Chhanda Dev, PW-27 has stated that the Gowdown Register of the Customs
Deptt. has not been seized by him during investigation. There is no direct
evidence to show that accused Arijit Bhattacharjee has taken the custody of the
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auctioned goods. He has interrogated accused No.4 Arijit Bhattacharjee. He does
not know as to whether any FIR has been lodged for missing/non-handing over
of some of the files of Customs Deptt. relating to the other four Drug
Distributors. He did not make any endeavour to find out whether other four Drug
Distributors as mentioned in the charge-sheet are guilty or not.
He stated that as per rule, it is not possible for transportation of goods
from one place to other place without transport challan issued by the authority.
No evidence has been found against accused No.4 Arijit Bhattacharjee to show
that he has connection with the Syndicate persons named in the charge-sheet
though they are not charge-sheeted.
113. I have scanned the evidence of PWs with great circumspection. Defence
has challenged the validity of the sanction accorded against accused Sagar Kr.
Dutta, the then Superintendent (Disposal) of Customs Division, Karimganj.
Sanction was accorded by PW-1, who is the Under Secretary, Ad. V. Section
CBEC Deptt., New Delhi. According to this witness, he put his signature on Ext.1,
on behalf of President of India, who is the competent authority to remove the
person Sagar Kr. Dutta, the then Superintendent (Disposal), Customs Division.
The Hon’ble President of India examined all the documents placed before him
including statement of witnesses and after due application of mind, he accorded
sanction for prosecution against Sagar Kr. Dutta. Any Under Secretary or above
him are authorized to issue and convey the sanction to prosecute on behalf of
the Hon’ble President of India.
114. From the evidence of PW-1 it is found that PW-1 is the competent
authority to issue and convey the sanction to prosecute on behalf of President of
India. Before according sanction, the authority applied his mind.
The defence has cross-examined the witness at length, but the defence
has failed to impeach the credibility of the witness so far granting of sanction
against accused Sagar Kr. Dutta is concerned. He has categorically stated that he
is the competent authority to accord the sanction for prosecution on behalf of
President of India.
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Learned counsel for accused Sagar Kr. Dutta has further contended that
no previous sanction U/S 137 of the Custom Act 1962 has been obtained against
the accused Customs Officer accused Sagar Kr. Dutta, which has vitiated the
entire trial.
In the present case, sanction accorded against accused Sagar Kr. Dutta
U/S 19 of the Prevention of Corruption Act, but no sanction was obtained U/S
137 of the Custom Act 1962. First of all, accused Sagar Kr. Dutta is a public
servant, thereafter he is a Customs’ Officer. Public servant is a genus and
Customs officer is a species. Since sanction was accorded under Prevention of
Corruption Act, as such, sanction under section 137 of the Custom Act is not
required. Non-according of sanction U/S 137 of Custom Act has not vitiated the
entire trial and has not demolished the very root of the prosecution case.
If there is any omission, error or irregularities in the matter of according
sanction that does not affect the validity of the proceeding unless the court
records the satisfaction that such error, omission and irregularity has resulted in
failure of justice. Prosecution has proved that the sanction produced in the
present case is legal and valid.
I am unable to accept the submission of the learned defence counsel so
far sanction is concerned.
115. PW-2, Shri Gaigongdin Panmei, Commissioner of Central Excise &
Service Tax, is also the sanctioning authority, who has accorded sanction for
prosecution of accused M.P. Acharjee. According to this witness, he was the
competent person to issue sanction as well as removal/ termination to M.P.
Acharjee, the then Inspector, Custom (Disposal), Custom Division, Assam. He
issued sanction order on the basis of the materials placed before him and after
application of his independent mind in due course. From the evidence of PW-2 it
is established that sanction accorded against accused M.P. Acharjee is also legal
and valid.
116. PW-3 & PW-4 are the seizure witnesses in whose presence two Drug
licenses each of Arijit Bhattacharjee (accused), Proprietor of Wings Drug
Distributor; Chhanda Deb (accused), Proprietor Kathia Baba, Drug Distributor,
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Prasanta Das (Purportedly shown to have participated in the auction), M/s S.S.
Drug Distributor; Chinmoy Roy (Purportedly shown to have participated in the
auction), Proprietor of M/s Rupam Drug Distributors were seized.
117. PW-5 is a Retd. Assistant Commissioner of Central Excise and Service
Tax who had worked with the accused persons. He has identified the signatures
of accused S.K. Dutta and M.P. Accharjee on the bid lists which prove that both
the accused persons were present at that time of auction. He has also narrated
the procedure for auction. It is also in the evidence of PW-5 that in case of
specified goods like phensedyl they are to send the goods for testing and
certification to the drug controlling authority. It is the duty of the drug controlling
authority to ascertain the alleged goods phensedyl for human consumption or
not. After obtaining the report of the drug controlling authority they are to send a
letter to the Headquarter for approval of Headquarter for disposal. Without the
permission and approval, nothing can be disposed of. He has exhibited seizure
memo i.e. Ext.11. He has also exhibited bid lists as Ext.14 & Ext.15 and has
identified the signature of S.K. Dutta, Superintendent (Disposal), Custom
Division, Karimganj and M.P. Acharjee, Inspector, Disposal, Custom Division,
Karimganj, who conducted the auction with seal & date. This witness has proved
Ext.16 TR file Counter Foil No.31640 dated 05.08.2010 showing receipt of
Rs.7,48,176/- from Chhanda Deb, Proprietor of M/s Kathia Baba Drugs
Distributor. He has also proved Ext.17 the TR file Counter File No.31647 dated
03.09.2010 showing receipt of Rs.13 lacs from M/s Wings Drugs Distributor. It is
also in the evidence of PW-5 that Central Government vide notification
No.35/2008-Customs (NT) dated 02.04.2008 has notified “Drugs formulation
containing codeine or its salts” as the goods in respect of which special measures
for the purpose of checking the illegal export and facilitating detection of the said
goods which are likely to be illegally exported shall be taken in the area specified
in India’s land border falling within the territories. Phensedyl is a schedule H
drug and Karimganj town falls within specified area.
It is found in the cross-examination of PW-5 that there is always
pressure on the disposal section of the Customs Department to dispose
medicines within prescribed time frame but the accused persons will not get any
benefit for the same and pressure for disposal does not mean that the seized
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goods has to be disposed in violation of the guidelines of the department by
using forged documents.
118. PW-6 is a witness who was sent by accused M.P. Accharjee to the house
of the accused Smt. Chhanda Deb to obtain her signature on TR-5 and bid lists
and accordingly he went there and took the signatures of accused Smt. Chhanda
Deb, the Proprietor M/s Kathia Baba, Drug Distributor. Evidence of PW-6 proves
that auction was manipulated by the accused Public Servants in conspiracy with
private accused persons. This witness was cross-examined at length, but nothing
has been brought by the defence to disbelieve his version. Rather, he has stated
in his cross-examination that Chhanda Deb put her signature in his presence. His
evidence lends credence to the prosecution case.
119. PW-7 is a Proprietor of M/s Rupam Drugs Distributor who is shown to
have participated in the auction but in his evidence he has stated that he never
attended any auction and purchased phensedyl. The signatures appearing in the
bid lists i.e. Ext.15, Ext.24 & Ext.25 are not his signatures and he has not
provided copy of his drug licence to the Customs Deptt.. The signatures of PW-7
were obtained by I.O. and GEQD (PW-24) has opined that signatures appearing
in the Ext.15, Ext.24 & Ext.25 are not done by him, which shows that accused
persons have manipulated the auction by misusing the documents of other drug
distributors and by using forged documents in the auction. It is also established
through the evidence of PW-7 that accused public servants were present in the
auction and they have not ensured the presence of the auction purchasers at the
time of auction.
120. PW-9 is the Proprietor of M/s S.S. Drugs Distributor who is shown to
have participated in the auction but in his evidence he has clearly stated that he
did not participate in the auction and the signature appearing in Ext.14 the third
bid list containing auction of phensedyl cough linctus 100 ml each, total 18627
bottles by custom Division Karimganj is also not his signature though it is shown
as his signature put thereon. He does not know who put the said signature. He
has clearly stated that he has never given his drug licence to Customs
Department or any other person for obtaining Phensedyl. Specimen signatures of
PW-9 were obtained by I.O and GEQD (PW-24) has opined that the signatures
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appearing in Ext.14 is not done by him (PW-9). This also shows that the accused
public servant has manipulated the auction by misusing the documents of other
drug distributors and by using forged documents in the auction. It is also
confirmed through the evidence of PW-5 that accused public servants were
present in the auction and they have not ensured the presence of the auction
purchasers at the time of auction. Evidence of PW-9 lends support to the
evidence of PW-7.
121. PW-10 is an employee of Customs department who was sent by accused
M.P. Acharjee and S.K. Dutta to the house of accused Smt. Chhanda Deb for
obtaining her signatures on TR-5 and accordingly he went there and took the
signatures of accused Smt. Chhanda Deb and handed over the same to accused
M.P. Accharjee and accused S. K. Dutta. Evidence of PW-10 also proves that
auction was manipulated by the accused Public Servants in conspiracy with the
private accused persons. He has identified the handwriting and signatures of
accused M. P. Acharjee and accused S. K. Dutta on Ext.14 & 15. Evidence of PW-
10 lends support to the evidence of PW-6.
It is also in the evidence of PW-10 that the phensedyl purchased by M/s
Kathia Baba Drugs Distributor in this case was delivered by him to the
representative of M/s Kathia Baba Drugs Distributor in presence of M.P.
Accharjee and S.K. Dutta from the godown of Customs but he was unaware of
the fact that where they have taken the said phensedyl upon delivery. He also
could not identify the person who has taken phensedyl for M/s Kathia Baba
Drugs Distributor although he was the person who has taken out the goods from
the godown. He did not have any knowledge regarding the payment in this case.
In most of the auction the drug store owners are present at godown till the
stocks are handed over to them.
From the evidence of PW-10 it is established that the delivery of auction
phensedyl was taken by accused Chhanda Deb, the proprietor of M/s Kathia Baba
Drug Distributor in presence of the accused public servants. PW-10 has also
proved the signature of accused public servants in the bid lists which shows their
presence at the time of auction and points out towards the deep rooted
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conspiracy between all the accused persons and their failure to maintain the
records as stipulated by the Custom Act.
122. PW-11 is a Drug Inspector. According to this witness during his tenure
as Drug Inspector at Karimganj he never got any information for auction of
Phensedyl by Custom Office, Karimganj in the past as well as during his time
from the records of his office. There was letter from Mr. P.C. Basumatary, Drug
Controller of Assam that there was certain violations of rules in sale and auctions
by Customs department without informing the department of drugs and also that
Phensedyl is a restricted medicine in the State of Assam and Customs
department sold to unlicensed Drugs Distributors. In relation to sample testing of
any medicines the Customs department should inform and request the Drug
Department to take sample and test it. But during his tenure from December,
2010 there was no request or information regarding seizure of any habit forming
drugs or for taking sample by the Customs Department. He has proved the drug
license of M/s Kathia Baba Drug Distributor as Ext.34 and he has also proved the
drug license of M/s Wings Drug Distributors as Ext.35. This witness has
categorically stated that he never got any information for auction of Phensedyl by
Custom Office, Karimganj in the past as well as during his time from the records
of his office.
The exact evidence of PW-11 is reproduced below:
“I never got any information for auction of Phensedyl by
Custom Office, Karimgnaj in the past as well as during my
time from the records of my office.”
The above evidence which could not be shaken during cross-examination.
From the evidence of PW-11 it is abundantly clear that he did not receive
any information for auction of phensedyl by Custom Office, Karimganj.
Though the accused officers took plea that they have written two letters
dated 18.06.10 and 24.05.10 under Ext.22/A and Ext.22/B written by S. K. Dutta,
addressing to Inspector of Drug, Karimganj district, Assam requesting inspection
of sample of medicines phensedyl cough-linctus for the purpose of testing, but
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infact no letter was received by PW-11 who was the Drug Inspector at the
relevant point of time. The letters merely kept in the file and shown only on
papers.
123. PW-12, PW-14, PW-16, PW-18 & PW-25 are the witnesses in whose
presence specimen signatures of the accused persons as well as Drug
Distributors were taken by the I.O. The accused persons gave their specimen
signatures voluntarily before them.
124. PW-15 is a retired Assistant Commissioner of Custom who has proved
the instruction and circular Ext.12, Ext.51 & Ext.52 to be followed in the instant
case but the accused officers have not followed the instructions as in above
mentioned circular in auction. Evidence of PW-15 lends some support to the
prosecution case.
125. PW-17 is also a witness of Custom department who has forwarded
Ext.56 the attested copy of some documents and Ext.57 the attested copy of
inspection report of Custom Revenue Audit Department, Kolkata to CBI.
126. PW-20 is a seizure witness in whose presence some documents were
seized from accused Arijit Bhattacharjee. The documents were handed over by
the accused voluntarily. Ext.59 is the ledger book of M/s Wings Drug Distributors.
I have perused Ext.59 the ledger book but there is no entry with regard to the
purchase of phensedyl which has clearly proved that phensedyl was illegally
exported to Bangladesh and the accused persons have not maintained the
records as required under Custom Act.
127. PW-21 is a Sr. Statistical Officer in whose presence the written invoices
i.e. Ext.62 to 97 and Ext.61 (in 12 sheets) duplicate copy of Assam Profession,
Trade, Calling and Employment Taxation Rules 1947, Form-vill-CC Challan and
the Assam Value Added Tax Rules Form-54 Challan along with item wise trading
Account from 01.04.2010 to 29.03.2011 and list of taxable purchase and input
tax credit, 2010-11 in respect of Chhanda Deb, Proprietor of M/s Kathia Baba
Drugs Distributor were seized by a seizure memo. I have perused these exhibits
which do not show entry with regard to the purchase of phensedyl in any of
these documents.
89
From the evidence of PW-21 it is established that phensedyl was illegally
exported to Bangladesh and the accused persons have not maintained the
records as stipulated under the Custom Act. This witness has proved the Ext.62
to Ext.97 are retail invoices of different dates of purchase of medicines by M/s
Kathia Baba Drug Distributor and has also stated the amount of purchase of
medicines by M/s Kathia Baba Drug Distributor.
128. PW-22 is a witness of Customs’ department and he has narrated about
the process and procedure which were required to be followed by the custom
official. He has proved the seizure memo, circular, TR-5 Receipt books, letters
written to the Deputy Commissioner Customs, Karimganj for disposal of
medicine/drug formulation by Joint Commissioner and letter addressed to the
Deputy Commissioner /Assistant Commissioner, Customs Preventive Division with
regard to sale/auction of habit forming drugs, viz, Phensedyl cough linctus etc.
He has identified the signature of accused public servants S.K. Dutta and M.P.
Acharjee on the document in question which proves their involvement in the
present case.
PW-22 has proved the bid lists Ext.14 & Ext.15 and Ext.22 the file of
correspondence on disposal of goods by way of quotations/auction-cum-
tender/direct sales in respect of phensedyl cough linctus and he has clearly
stated that he does not find any undertaking/declaration taken from the drug
distributors who were awarded the bid in auction of phensedyl. It transpires from
the evidence of PW-22 that the accused persons have manipulated the auction
and have not followed the Customs rules. He has also stated that his office has
not received any intimation/information as per Ext.13 from the purchasers who
have purchased the phensedyl through auction. PW-22 has exhibited one letter
Ext.109. This letter inter-alia prescribed for consultation with State Drug
Controller/Zonal & Port Officers of Drug Controller of India at different stages
from the time of seizure till disposal, value and drawal of representatives samples
from the branded lots for testing and analysis of such samples at Drug Testing
Lab. However, instances have come to notice wherein it is found either there
were considerable delay in consulting the concerned State Drug Control Authority
or the concerned official did not pay heed to the request made by the
Department timely or the testing laboratory took excessive time to complete the
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analysis and forwarding the test report. As a result, difficulties being faced by the
disposal units to dispose of such goods well within the expiry date and in few
cases the consignment of drugs/medicines got expired by the time test reports
were received from the concerned authority resulting destruction of the same
leading to loss in revenue.
It is therefore desired that henceforth all seizures of drugs/medicines
should immediately be taken up with the concerned drug control authority and
the process of physical examination and drawal of sample should invariably be
completed within 10 working days from the date of seizure. However, in situation
where the services of the concerned official of drug control authority cannot be
availed during the specified period, the alternative arrangement for drawal of
sample/forwarding to testing laboratories may be worked out in consultation with
the concerned drug control authority. (Your personal supervision in such situation
will be highly appreciated).
The condition stipulated in Ext.109 was not complied by the accused
persons. He has also exhibited another letter Ext.110 which provided that
Customs department seized habit forming drugs from different parts of NE
Region and after due test of seized articles, it is auctioned in the opened market.
The article is purchased mostly by Cachar/karimganj District whole-seller
(Medicines), but while selling the drugs, Customs office do not examine some
serious points nor they discuss any matter with Drugs Deptt. The Phensedyl
Cough Linctus is restricted sale item in Assam and the Drug Deptt., do not allow
the sale of such item from Company Deptt or C & F agent unless the purchaser
produces a certificate from the drug department. It has also been reported that
some drugs items has already been sold to unlicensed firm by Custom Deptt. The
matter was discussed in the meeting held at NEIGRIMS, Shillong of NE Drugs
Controller with Drugs Controller General (India) on 17.05.2010.
It has also been requested vide the said letter to issue instruction to all
the Custom Offices not to sell any drugs item without taking drug control Deptt.
into confidence. It has also been requested to provide a list of drug seized during
2009-10, purchaser name and address to verify the validity of their license and
utilization certificate of the purchased items.
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He has also exhibited a file Ext.22 for correspondence on disposal of
goods by way of quotations/auction-cum-tender/direct sales in respect of
phensedyl cough Linctus and after going through Ext.22 he stated that he does
not find any undertaking/declaration taken from the drug distributors who were
awarded the bid in auction of phensedyl. If any declaration would have been
obtained from the respective bidders, it would have been there in Ext.22.
The accused public servants have not taken any security deposit from
the bidders/auction purchasers, which is a mandatory condition as per the notice
of the auction.
PW-22 has supported the prosecution case on all material particulars.
129. PW-23 is the Magistrate who has recorded statement U/S 164 Cr.PC in
the instant case.
130. PW-24 is the CFSL Expert (Handwriting) who has given positive opinion
on the questioned documents containing signatures of the accused persons and
negative opinion signatures of the Drug Distributors purportedly shown to have
participated in the auction.
131. PW-26 & 27 are the investigating officers who investigated the case
and have also stated about the revenue loss as well as exhibited the documents
and income tax returns showing that the accused persons have not made any
entry in their respective documents with regard to the purchase of Phensedyl.
132. In the instant case though PW-8 was declared hostile by the
prosecution, but evidence of hostile witness cannot be acted upon in the facts
and circumstances of the case. The un-hostile part of the evidence of PW-8 is
supported by PW-6 and PW-10. Evidence of aforesaid witnesses is quite
contestant and do not suffer from any serious infirmity.
133. CORROBORATIVE EVIDENCE AGAINST ACCUSED NO.3 AND
ACCUSED NO.4.
Accused Chandda Deb, Proprietor of M/s Kathia Baba Drug Distributor
and accused Arijit Bhattacharjee, Proprietor of M/s Wings Drug Distributor put
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their signatures on TR-5 and bid list. PW-24, the expert has given positive
opinion on the questioned document. Evidence has already come into the record
through PW-5, who has proved Ext.16 TR-5 file counter foil No.31640 dated
05.08.10 showing receipt of Rs.7,48,176/- from accused Chandda Deb, Proprietor
of M/s Kathia Baba Drug Distributor. Evidence has also come in to record through
PW-22, who has proved Ext.17, TR-5 Receipt book page No.B-31647 vide GDR
No.20 /09, to M/S Wings Drug Distributors Licence No.KRJ/3362 and KRJ/3363
on 03/09/2010 vide TR-6 No.25/10-11 dated 03/09/2010. Amount received is
Rs.13,00,000/- for sale of 32484 Phensedyl bottles. Accused Arijit Bhattacharjee
in his statement U/S 313 has not denied his signature on TR-5 but the accused
took plea that he put his signature on blank papers. Accused Chhnada Deb has
not specifically denied her signature on TR-5 and bid list but there is only evasive
denial on her part.
134. Accused Chhanda Deb and Arijit Bhattacharjee have failed to offer
plausible explanation as regard to their signatures on TR-5 and bid list. So the
plea of the accused persons cannot be accepted. Though accused Chhanda Deb
in her statement recorded U/S 313 of Cr.P.C. stated that her metal condition was
not sound and stable since birth, but she has failed to adduce evidence to prove
the said fact. There is nothing in the record that she has ever taken such plea
during trial.
135. It has further come through the evidence PW-6 and PW-10 that the
accused S.K. Dutta sent some persons to the house of accused Chhanda Deb to
obtain her signatures on the bid lists and TR-5 and accordingly she has put her
signatures on those documents which are used in auction. It has also come in
evidence that the accused S.K. Dutta was present when the delivery of the
auction phensedyl was taken by the representatives of the accused Chhanda Deb
from the custom godown.
Prosecution has proved their involvement in the instant case in conspiracy
with accused officers.
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136. PRICING COMMITTEE
I have reverted to the evidence of PW-5 and PW-22 and it is found that
there is a pricing committee at Shillong Head Quarter who fixes the price.
A joint pricing committee was constituted to fix the fair price for disposal
of the seized phensedyl drugs through auction and after the fair price was fixed
by JPC, huge quantity of seized phensedyl were disposed off through auction by
the accused S.K. Dutta and M.P. Accharjee to M/s Kathia Baba Drugs Distributors
(accused Chhanda Deb) and M/s Wing Drug Distributor (accused Arijit
Bhattacharjee) after inviting auction notices.
That the conditions of the said auction notice dtd. 16.07.2010 were as
follows:-
(1) The intending bidders are required to possess Drug License issued
by the competent authority in original.
(2) The intending bidders shall require to deposit a sum of Rs.50,000/-
only as security.
(3) The Customs authority & the state Drug Control Authority shall have
the right to enquire upon the goods so sold in auction & take
necessary steps as per law.
(4) All the bidders participating in the auction are required to give a
declaration/undertaking of the destination of the goods to be carried
to. The said Auction Notice was purportedly posted in the Office
Notice Board and copy was circulated to the Whole Sale Drug
License holders/Distributors and also to the Inspector of Drugs,
Karimganj for information & necessary action.
137. In the present case all the above conditions were not fulfilled/violated by
all the accused persons. The bid/auction sale purportedly shown to have taken
place was not conducted in reality and it was a sham transaction. Actually the
auction did not take place and was shown on paper only since the other auction
purchasers shown to have participated in the auction have denied of their
participation in the said auction. The Govt. Examiner of questioned documents
(CFSL) Expert has also given opinion that the signatures appearing on the bid
94
lists of other participants are not the signatures made by the original persons
whose drug license and names have been used in the auction.
138. CRIMINAL CONSPIRACY
Let us now examine as to whether there was any criminal conspiracy
between accused persons, namely, Sri M.P. Acharjee, Sri Sagar Kumar Dutta,
Mrs. Chhanda Deb and Sri Arijit Bhattacharjee in respect of holding auction.
A bare perusal of the above section clarifies that in order to bring home
the charge U/S 120B IPC, prosecution must prove the following:
(1) That there must an agreement between the persons who are
allege to conspire, and
(2) That agreement should be for (i) doing an illegal act, or (ii) for
doing by illegal means an act which by itself may not be illegal.
(3) One or more persons in pursuance of that agreement has done an
overt act.
139. It is well established that in order to prove a criminal conspiracy which is
punishable U/S 120B of the Indian Penal Code, there must be direct or
circumstantial evidence to show that there was an agreement between two or
more persons to commit an offence.
Criminal conspiracy is generally hatched in secrecy and direct evidence
is therefore difficult to obtain and access. The offence can be proved by adducing
circumstantial evidence and or by necessary implication.
140. In the present case evidence has already come into the record that the
accused officers Sagar Kr. Dutta and M.P. Acharjee entered into criminal
conspiracy with Chhanda Deb and Arijit Bhattacharjee and in pursuance to the
said conspiracy they have disposed of huge quantities of phensedyls/Specified
goods/Scheduled “H” Drugs through auction by preparing fake and forged bid
lists.
95
In view of above discussions, I have found that the prosecution has
proved the ingredients of offence U/S 120-B of IPC against the accused persons
beyond all reasonable doubts.
141. Charge was also framed against the accused persons U/S 471 of IPC
which reads as follows:
“Whoever fraudulently or dishonestly uses as genuine any document or
electronic record which he knows or has reason to believe to be a false
document, or electronic record shall be punished in the same manner as if he
had forged the document.”
In order to bring home the charge U/S 471 of IPC, prosecution has to
prove the following ingredients-
i. The accused is using fraudulently or with dishonest intention a
document as genuine, and
ii. That the accused using that document has the knowledge or has
reason to believe that the document is a forged one.
142. Section 471 of IPC is attracted if the accused person uses the false
documents as genuine in spite of his knowledge of believe that the documents he
is using are forged. In the present case accused customs officers namely, Sagar
Kr. Dutta and M.P. Acharjee used the documents of M/S Rupam Drugs Distributor
and S.S. Drugs Distributor who were shown to have participated in the auction.
PW-7, the proprietor of M/S Rupam Drugs Distributor and PW-9, the proprietor of
S.S. Drugs Distributor have deposed that they did not participate in the auction
and signatures appearing in Ext.14, 15, 24 and 25 are not their signatures. The
signatures of PW-7 and PW-9 were obtained by I.O. and GEQD opined that
signatures appearing in Ext.14, 15, 24 and 25 are not done by them. This also
shows that the accused public servants have manipulated the auction with
accused Chhanda Deb and Arijit Bhattacharjee by using the documents of other
drugs distributors as genuine in the auction. The accused public servants were
present in the auction but they have not ensured the presence of the auction
purchaser PW-7 and PW-9 at the time of auction.
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After going through the above discussions, we have found that
prosecution has been able to prove the ingredients of offence U/S 471 of IPC
against the accused persons.
143. Charge was also framed against accused public servant U/S 13(1)(d)
r/w section 13(2) of PC Act, 1988. Section 13(2) of PC Act deals with
punishment for committing any criminal misconduct by any public servant. As per
Section 13(1)(d) of PC Act, 1988 a public servant is said to commit the offence
of criminal misconduct, if he-
I. By corrupt or illegal means obtains for himself or for any other
person any valuable thing or pecuniary advantage, or
II. By abusing his position as a public servant obtains for himself or
for any other person any valuable thing or pecuniary advantage, or
III. While holding the office of a public servant obtains for any person
any valuable thing or pecuniary advantage without any public servant.
144. Prosecution in order to bring home the charge U/S 13(1)(d) r/w Section
13(2) of PC Act must prove that the accused is a public servant, and the
accused while discharging his duties as public servant by corrupt or illegal means
by abusing his position as a public servant without any public interest obtains or
for any other person any valuable thing or pecuniary advantage.
145. In this case the prosecution has proved that the Accused No.1 and
Accused No.2 are public servants and by abusing their official power/position and
violating all laid down instructions/circulars/rules and regulations had dishonestly
and fraudulently shown undue favor and thus given undue pecuniary advantage
to the said bidders/syndicate people of Karimganj/unknown others and promoted
illegal export of Phensedyls/Specified goods/Schedule “H” drugs to Bangladesh
and neighbouring States/Districts. Prosecution has been able to prove the charge
U/S 13(2) R/W Section 13(1)(d) of the Prevention of Corruption Act against the
accused officers.
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146. LET US RECAPITULATE THE RELEVANT SECTIONS OF CUSTOM
ACT, 1962.
Section 11 J:
Persons possessing specified goods to intimate the place of
storage:
Every person who owns, possesses or controls the specified goods, on
02.04.08 shall, within seven days from that date, deliver to the proper officer an
intimation containing the particulars of the place where such goods are deposited
or stored within the “specified area”.
Similarly, every person who acquires the “specified goods” (within
specified areas as mentioned above), after 02.04.08, shall before making such
acquisition deliver to the proper officer an intimation in the manner as specified
in Section 11J (2) provided the provisions of Section 11J (2) (i) or (ii) applies to
the goods. Likewise, any person dealing with the specified goods in the manner
as mentioned in Section, 11J (3) & (4) would have to comply with the conditions
mentioned therein.
Section 11K:
Transport of specified goods to be covered by vouchers:
As per the provision of Sub-section (1) of this Section, the “specified
area” mentioned above or loaded on any animal or conveyance in such area,
unless they are accompanied by a transport voucher in the form containing the
particulars mentioned in Rule-3 of Specified goods (Prevention of Illegal Export)
Rules 1969, notified vide Notification No.6-Cus., dated 03.01.1969, as amended
from time to time. No transport voucher shall be necessary for the transport of
the specified goods within a village, town or city, if the marked price, on the date
of transport, does not exceed one thousand rupees.
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Section 11L:
Persons possessing specified goods to maintain accounts: Every person who, on or after the specified date, owns, possess or
controls, within “specified area”, the “specified goods” of a market price
exceeding fifteen thousand rupees, shall maintain in the form and in the manner
as specified in Rule-4 of Specified goods (Prevention of illegal Export) rules 1969.
It shall, however, not be necessary to maintain separately accounts in the form
and manner specified by the rules mentioned in this Para in case the person is
already maintaining accounts, which contain the particulars specified, by the said
rule. Similarly, every person who owns, possess or controls the specified goods
to which provisions of sub-section (1) of Section 11L apply, and who uses such
goods for the manufacture of any other goods shall maintain a true and complete
account of the specified goods in the manner specified in sub-section (2) of
Section 11L.
If at any time, on verification made by the proper officer, it is found that
the specified goods owned, possessed or controlled by a person are lesser in
quantity than the stock of such goods as shown, at that time of such verification,
in the accounts referred to in sub-section (1) of section 11L, read with the
accounts referred to sub-section (2) of section 11L, it shall be presumed, unless
the contrary is proved, that such goods, to the extent they are lesser than the
stock shown in the said accounts, have been illegally exported and that the
person, owing possessing or controlling such goods has been concerned with the
illegal export thereof.
Section 11M:
Steps to be taken by persons selling or transferring any specified goods:
Except where he receives payment by cheque drawn by the purchaser,
every person who sells or otherwise transfers within the specified area the
specified goods, shall obtained, on his copy of the sale or transfer voucher, the
signature and the full postal address of the person to whom such sale or transfer
is made and shall also take such other reasonable steps as specified in Rule-5 of
Specified Goods (Prevention of illegal Export) Rules 1959 to satisfy himself as to
the identity of the purchaser or the transferee, as the case may be, and if after
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an inquiry made by the proper officer, it is found that the purchaser or the
transferee, as the case may be, is not either readily traceable or is a fictitious
person, it shall be presumed, unless he contrary is proved, that such goods have
been illegally exported and the person who had sold or otherwise transferred
such goods had been concerned in such illegal export;
Nothing contained in this section shall apply to petty sales (i.e. the sale at
a price which does not exceed one thousand rupees) of the “specified goods” if
aggregate market price obtained by such petty sales, made in the course of a
day, and does not exceed two thousand and five hundred rupees.
147. In the present case, the accused persons have violated the provisions of
Custom Act. Since the accused persons have failed to give any explanation, it can
be presumed that the accused persons have illegally exported the phensedyl to
Bangladesh.
148. Let us discuss whether the accused persons have committed the offence
U/S 132 and 136 of the Custom Act.
U/S 132 of Custom Act reads as follows:
“False declaration, false documents, etc.- Whoever makes, signs of uses,
or causes to be made, signed or used, any declaration, statement or document in
the transaction of any business relating to the customs knowing or having reason
to believe that such declaration, statement or document is false in any material
particular, shall be punishable with imprisonment for a term which may extend to
two years, or with fine, or with both”.
The prosecution has proven through the evidence of PW-7 and PW-9 that
the accused persons forged their documents by putting signatures for transaction
of business at auction sale. These PWs have clearly stated that they never
visited any Customs Officer and never attended any auction. They did not put
their signatures on the documents. The public servants A-1 and A-2 were present
in the auction sale, but they have not ensured the presence of the auction
purchasers at the time of auction.
Accused persons have not maintained the records as stipulated under
Custom Act and therefore have committed the offence under Custom Act.
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U/S 136 of Custom Act reads as follows:
“If any officer of customs enters into or acquiesces in any agreement to
do, abstains from doing, permits, conceals or 1 [connives at any act or thing,
whereby any fraudulent export is effected or] any duty of customs leviable on
goods, or any prohibition for the time being in force under this Act or any other
law for the time being in force with respect to any goods is or maybe evaded, he
shall be punishable with imprisonment for a term which may extend to 2[three
years], or with fine, or with both.”
The prosecution has failed to prove ingredients of offence U/S 136 of
Custom Act for which accused officers deserve acquittal from the charge levelled
U/S 136 of Custom Act. Thus accused Sri Sagar Kr. Dutta & Sri Mukti Pada
Acharjee are acquitted U/S 136 of Custom Act.
149. Though, there is no direct evidence to the fact that accused persons
exported phensedyl to Bangladesh, but it can be presumed from the evidence on
record that the accused persons exported the phensedyl to Bangladesh since
Karimganj Town falls within 50 Kms width from India’s land border. Non
production of disposal manual, guidelines, godown register has not caused dent
in the prosecution case in as much as, there is clinching and convincing evidence
against the accused persons.
150. Regarding the submission of learned counsel for accused Chhanda Deb
that as per Ext.14 bid list, Chhanda Deb is not the highest bidder. Sri Prasanta
Das (PW-9) was the highest bidder, who was not impleaded as accused in this
case. It is found in the evidence of Prasanta Das (PW-9) that he did not
participate in the auction and the signature obtained in Ext.14 is not his
signature. PW-24 has opined that Ext.14(4) is not the signature of Prasanta Das
(PW-9). PW-9 was not the highest bidder, but only shown as highest bidder in
the bid list.
151. Next submission of the learned counsel with regard to the evidence of
PW-24 that evidence of PW-24 is a weak piece of evidence. The specimen
signature taken by CBI has not followed in due procedure of law in the instant
case. Though, PW-24 in his cross-examination has admitted that there must be
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a necessity of two experts to provide opinion but evidence of PW-24 is otherwise
trustworthy. That apart, accused Chhanda Deb has not specifically denied her
signature on TR-5 and bid list during trial. PW-24, the handwriting expert gave
positive opinion about the signatures of accused Chhanda Deb.
I am unable to accept the submission of the learned counsel for accused
Chhanda Deb.
152. There is no evidence on record that the witnesses have inimically deposed
and the I/O had an axe to grind the accused persons. The accused persons have
received monetary benefit on the basis of forged and fake document which were
used in the auction. These facts are clearly incompatible with innocent of the
accused persons and are incapable of any explanation of any other reasonable
hypothesis, other than guilt of accused persons.
I am of the humble opinion that the decisions cited by the learned
defence counsels are not squarely applicable in the present case.
153. In view of the discussions made above and considering the oral and
documentary evidence in its entirety, it is found that the prosecution has been
able to prove the charges U/S 120B, 471 of IPC and Section 132 of Custom Act,
1962 against accused persons Sagar Kr. Dutta, Mukti Pada Acharjee, Chhanda
Deb and Arijit Bhattacharjee beyond all reasonable doubts.
154. The prosecution has also proved the charges U/S 13(2) R/W Section
13(1)(d) of the Prevention of Corruption Act, 1988 against accused custom
officers Sagar Kr. Dutta and Mukti Pada Acharjee beyond all reasonable doubts.
Accordingly all the accused persons are convicted U/S 120B/471 of IPC
and U/S 132 of the Custom Act, 1962.
Accused custom officers Sagar Kr. Dutta and Mukti Pada Acharjee are
convicted U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.
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HEARING ON SENTENCE
155. Heard the accused persons on the quantum of sentence. Their
statements are recorded U/S 235(2) Cr.P.C. in separate sheets and kept with the
record.
Accused Sagar Kr. Dutta has stated that he is 62 years old and he is
looking after his family which consists of mother, wife and one son. He is the sole
bread earner and hence, he prays to deal him with leniently.
Accused Mukti Pada Acharjee has stated that he is 61 years old and he is
looking after his son and daughter. He is the sole bread earner and hence, he
prays to deal him with leniently.
Accused Chhanda Deb has stated that she is 38 years old woman with her
husband and 11 years old son. There is no one to look after her son and hence,
she prays to deal her with leniently.
Accused Arijit Acharjee has stated that he is 37 years old and he is
looking after his family which consists of his parents, wife and one child. He is
the sole bread earner and hence, he prays to deal him with leniently.
Heard the learned counsels for the accused persons as well as learned PP
for the CBI. Learned PP has prayed to impose maximum sentence.
Considering the statement of accused persons, their age, nature of
offence and having heard both sides the accused persons are sentenced as
follows;
SENTENCE
156.
(i) Accused persons namely Sagar Kr. Dutta, Mukti Pada Acharjee,
Chhanda Deb and Arijit Bhattacharjee are sentenced to undergo
Rigorous Imprisonment for 06(six) months and to pay a fine of
Rs.2,000/- (Rupees two thousand) each, for the offence U/S 120B
IPC, in default of payment of fine the accused persons shall undergo
Simple Imprisonment for 01(one) month each.
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(ii) Accused persons namely Sagar Kr. Dutta, Mukti Pada Acharjee,
Chhanda Deb and Arijit Bhattacharjee are sentenced to undergo
Rigorous Imprisonment for 01(one) year and to pay a fine of
Rs.10,000/- (Rupees ten thousand) each, for the offence U/S 471
IPC, in default of payment of fine the accused persons shall undergo
Simple Imprisonment for 02(two) months each.
(iii) Accused persons namely Sagar Kr. Dutta, Mukti Pada Acharjee,
Chhanda Deb and Arijit Bhattacharjee are sentenced to undergo
Rigorous Imprisonment for 01(one) year with fine of Rs.2,000/-
(Rupees two thousand) each, for the offence U/S 132 of Custom
Act, 1962, in default of payment of fine the accused persons shall
undergo Simple Imprisonment for 01(one) month each.
(iv) Accused persons namely Sagar Kr. Dutta & Mukti Pada Acharjee, are
further sentenced to undergo Rigorous Imprisonment for 04(four) years
and to pay a fine of Rs.25,000/- (Rupees twenty five thousand)
each, for the offence U/S 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988, in default of payment of fine the accused
persons shall undergo Simple Imprisonment for 02(two) months each.
157. All the substantive sentences shall run concurrently and the period of
detention already undergone, be set off against the sentences of imprisonment
as per section 428 of the Criminal Procedure Code.
158. Furnish free copy of judgement to the convict persons.
159. Given under my hand & seal of the Court on this 1st day of August, 2019.
Dictated & corrected by me Special Judge CBI, Assam
Special Judge CBI, Assam (S. BORA)
Addl. Court No.1. Addl. Court No.1,
Chandmari, Guwahati. Chandmari, Guwahati.
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