The Customs Officer seeks relief under Section 155(2) of the Customs Act, 1962, which provides a limitation period for initiating proceedings against officers for acts purportedly done in good faith under the Act. Based on the facts, case precedents, and legal principles, the following defense can be made:
1. Applicability of Section 155(2) of the Customs Act
Section 155(2) of the Customs Act states:
> “No proceeding shall be commenced against any person for anything purporting to be done in pursuance of this Act without giving such person at least one month’s notice in writing of the intended proceeding and of the cause thereof; or after the expiration of three months from the accrual of such cause.”
Key Elements of Section 155(2):
1. Notice Requirement:
The prosecution must provide a prior written notice of at least one month to the officer.
In this case, no evidence has been presented that the Customs Appraiser was given such notice before initiating proceedings.
2. Limitation Period:
Any proceeding must be initiated within three months from the accrual of the cause of action.
The cause of action accrued on September 2, 1998, when the goods were cleared. The FIR, however, was lodged in February 1999, well beyond the three-month limitation periods.
2. Actions Were Done in Good Faith
Section 155(1) of the Customs Act protects officers for actions done in good faith under the Act. The Appraiser’s conduct satisfies this requirement:
Compliance with Official Duties:
The Appraiser followed the established procedure for assessing and clearing export consignments under Sections 17 and 51 of the Customs Act. The shipping bills were countersigned by the Commissioner of Customs, who exercised delegated authority under Section 5(2) of the Act.
Verification of Present Market Value (PMV):
The PMV was verified as per the existing rules and public notices applicable at the time. The Appraiser had no reason to suspect inflated valuation or fraudulent intent based on the documents provided.
Post-Export Activities Beyond Appraiser’s Scope:
The Appraiser’s role was limited to allowing export clearance and did not extend to processing or sanctioning drawback claims. The responsibility for verifying and approving drawback claims rested with the Assistant Commissioner and higher authorities.
3. Precedents Supporting Relief Under Section 155(2)
Several judicial precedents support the Appraiser’s defense:
(a) Public Prosecutor v. R. Raju (AIR 1972 SC 2504)
The Supreme Court held that proceedings initiated beyond the limitation period under Section 40 of the Central Excise Act (pari materia with Section 155 of the Customs Act) are barred.
Similarly, in this case, the FIR was filed after the three-month limitation period, making the proceedings time-barred.
(b) Ashok Kumar Singh v. State of West Bengal (Calcutta High Court)
The court quashed proceedings against a Customs Officer under Section 155(2) of the Customs Act, holding that actions taken in good faith while discharging official duties are protected.
The Customs officer 's actions in the present case, including assessing shipping bills and allowing export clearance, were done in good faith under the Customs Act.
(c) Sunil Kumar v. CBI (Punjab & Haryana High Court)
The court quashed proceedings under Sections 120B, 420, and the PCA, granting protection under Section 155(2) of the Customs Act.
The Customs officer 's case is similar, as the alleged offenses pertain to procedural actions under the Customs Act, which are protected by Section 155(2).
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4. Distinction Between Customs Act and PCA Offenses
The charges under the Prevention of Corruption Act (PCA) and IPC are not applicable because:
No Evidence of Corrupt Intent:
There is no evidence of bribery, undue advantage, or personal gain by the Appraiser.
The exporter was not known to the Customs officer, and the foreign remittance matched the declared invoice value, ruling out fraudulent intent.
Good Faith Actions Under the Customs Act:
The alleged lapse pertains to procedural aspects of export clearance, which fall within the scope of actions done in good faith under the Customs Act.
The PCA does not override the protection granted under Section 155(2) for actions done in pursuance of the Customs Act.
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5. Limitation Period Bars Prosecution
The prosecution is barred under Section 155(2) due to the following:
1. No Prior Notice:
The prosecution failed to provide the mandatory one-month notice before initiating proceedings, violating the statutory requirement.
2. Expired Limitation Period:
The cause of action accrued on September 2, 1998, and the prosecution was initiated in February 1999, well beyond the three-month limitation period.
As held in Public Prosecutor v. R. Raju, proceedings initiated after the limitation period are invalid.
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6. Abuse of Legal Process
The delayed prosecution and lack of evidence of misconduct indicate an abuse of legal process:
The FIR was filed months after the alleged cause of action, and the challan was filed in 2005, further delaying the trial.
The Supreme Court, in State of Haryana v. Bhajan Lal (1992), held that proceedings without a prima facie case or initiated with malafide intent should be quashed.
Conclusion
The Customs officer is entitled to relief under Section 155(2) of the Customs Act due to:
1. Good Faith Actions: The Customs officer acted within the scope of official duties and followed established procedures under the Customs Act.
2. Time-Barred Prosecution: The FIR and prosecution were initiated beyond the statutory limitation period of three months.
3. Judicial Precedents: Several High Court and Supreme Court rulings support the Customs officer’s defense under Section 155(2).
The proceedings against the customs officer should be quashed as they violate the statutory protections provided under Section 155(2) of the Customs Act, 1962.
