in the court of the special judge, cbi, …kamrupjudiciary.gov.in/cbi judgments 2019/1.8.19-cbi...

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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


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.


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.


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.


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.


Sanku, PW-6 stated that Mashoq Ahmed was the main person in running the

Syndicate of drug business.


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.





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.


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.


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.


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


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.


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.


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.


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.


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.


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




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




signatures of Sri Chinmoy Roy which he has put in his presence in lieu of giving

of specimen signatures voluntarily.


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.


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


stated that in Ext.32 there is no signature of Prashanta Das declaring that he has

given the specimen signature/writings voluntarily.


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.


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.


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.


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).


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.













47







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.


Kathia Baba Drugs Distributor of Rs.920/- and Ext.70(1) is his signature with date

on the reverse side of Ext.70.
















48






















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.




49













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.













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.











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


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.


(Part) to Sri Sumit Dhar, Son of Sri J.K. Dhar of Dhar Drug Agency on


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.


(Part) to Sri Sujit Roy, Son of Sri Sunil Roy of M/S Shova Drug Distributor on


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.


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


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


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.


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



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.


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.


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.

63

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.


stamped and marked S2/1 to S2/3 and A10 to A14 did not write the red enclosed

signature similarly stamped and marked Q6.”

64

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.


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


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.


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.


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.

67

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.


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.


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.


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.

69

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) &

70

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


Karimganj. Sri Arijit Bhattacharjee put his specimen signatures/handwritings




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.27 (in 02 sheets) is the specimen signatures/handwritings of Sri

Chinmoy Roy was taken by him in presence of witnesses namely Sri Debajit


Karimganj. Sri Arijit Bhattacharjee put his specimen signatures/handwritings




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) &



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

71

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.


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.

72

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.

73

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.


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.



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.



74

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.



Sen Drug Distributor) from Sri Anup Kr. Sen in presence of 02 independent


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.



Rupam Drug Distributor) from Sri Chinmoy Roy in presence of 02 independent


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



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.


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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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.


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.

80

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,

84

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

85

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

86

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

87

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

88

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

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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.

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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

99

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,


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,


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.