JUDGMENT
Pendse, J.
1. This appeal discloses fraud committed both on the Customs Department and on this Court and we propose to direct the Commissioner of Police to investigate the matter and prosecute every person connected with this fraud irrespective of the position held. The facts set out hereinafter would disclose the nature and extent of fraud to make wrongful gain.
2. On January 18, 1987 Writ Petition No. 173 of 1987 is filed in the name of M/s. Mine Chem (India) a partnership firm having office at 308, Admaji Building Syed Mukri Street, Bombay 400 009 on the Original Side of this Court by M/s. Kantawala & Co., a firm of attorney. The petition is drawn by Dr. Nitin Kantawala. The petitioners claim that petitioners are a partnership firm and imported sorbitol solution in two consignments. The petitioners claim that the benefit of duty exemption of countervailing/additional duty as per Notification bearing No. 55/75 dated March 1, 1975 was available in respect of duty payable in importing the said consignments. The petitioners then stated that the Customs Authorities charged countervailing/additional duty at the rates as disclosed by the endorsement made on bill of entry, the copy of which was annexed as Exh. ‘E’ to the petition. The petitioners claim that the judgment was delivered in Writ Petition No. 1808 of 1982 by Mr. Justice Pendse holding that the benefit of duty exemption is available. The petitioners came to know about the said decision and became aware that the import of sorbitol is exempt from payment of countervailing/additional duty. The petitioners claim that the application for refund was filed and the copy of the refund application was annexed as Exhibit ‘I’ to the petition. The refund application was turned down by the Assistant Collector of Customs and thereupon the petitioners instituted the petition seeking writ of mandamus for setting aside the order refusing to grant refund and directing the Customs Department to refund the amount of countervailing/additional duty on the consignment of sorbitol covered by bills of entry, the copies of which are Exhibits ‘E’ and ‘F’ to the petition.
3. The petition was posted before Mr. Justice Jahagirdar on January 23, 1987 and the parties tendered minutes of the order and the learned Judge passed order disposing of the petition in terms of the minutes. By this order the Customs Department was directed to refund to the petitioners the refund amount due as per particulars given under Exhibit ‘E’ to the petition by 15th February 1987. The petitioners through their advocate Dr. Nitin Kantawala gave an undertaking to this Court that in the event of this Court allowing the appeal to be filed by Union of India and if the matter was not carried further, then the petitioners would repay the amount. Union of India and Collector of Customs filed the present appeal on August 18, 1987 and the appeal was admitted by Division Bench on April 15, 1988. Dr. Kantawala appeared on behalf of the respondents, and waived service of appeal.
4. When the appeal was called out for hearing, on behalf of appellants an affidavit dated August 20, 1991 sworn by Yudhvir Singh Shaharawat, Assistant Collector of Customs is tendered. The affidavit sets out extensively how it was detected that the fraud has been committed by filing petition in the name of the petitioners with a view to cheat the Customs Department and secure the refund which they were not entitled to. The affidavit sets out that the present petition is one of the instance out of innumerable petitions filed by one Shri Kumar Prabhulal Shah through advocate Dr. Nitin Kantawala. The affidavit then sets out that along with Shah one Piyush Patel was involved and Piyush Patel in his statement admitted that K. P. Shah and Piyush Patel used to file petitions in the name of various parties without any authority. After the affidavit was tendered, Dr. Kantawala stated that he has been formed by Mine Chem (India) by letter dated August 17, 1991 that Writ Petition No. 173 of 1987 filed in the name of M/s. Mine Chem (India) should be withdrawn. We called upon Dr. Kantawala to produce original letter and the same is taken on record. Dr. Kantawala also handed over copies of the letters received from M/s. Mine Chem (India) and these copies are also taken on record.
5. As it is no longer in dispute that M/s. Mine Chem (India) had not filed the petition but the petition was filed and sworn by one Jitubhai Jasani, a partner in the firm, and it is on this petition that the relief was secured by the petitioners, the order of the learned Single Judge cannot be sustained. The order of the learned Single Judge therefore cannot stand. It is required to be stated that Mr. Rege, learned counsel appearing on behalf of the appellants, informed that Shah had put his signature and declared the petition in the name of Jitubhai Jasani. In view of the affidavit filed on behalf of the appellants, the appeal is required to be allowed and the impugned judgment dated January 23, 1987 passed by the learned Single Judge in Writ Petition No. 173 of 1987 is required to be set aside and writ petition is required to be dismissed.
6. We do not propose to rest by way of allowing appeal as huge fraud has been committed both on the Customs Department and this Court by unscrupulous methods. It is not possible for this Court to ascertain who are the persons responsible and who have participated in the huge fraud committed on the Customs Department and this Court. Therefore, we direct the Commissioner of Police to investigate the matter and launch the prosecution against every person who has been involved in the activities and secured wrongful gain. We request the Commissioner of Police to depute a senior officer familiar with detection of cases of such nature and direct him to undertake the investigation after registering the complaint, and thereafter proceed against every person who is found guilty of the commission of the offence. The entire record in respect of this petition and appeal shall be forwarded by the Prothonotary and Senior Master in a sealed cover to the Commissioner of Police. The Commissioner shall inform this court the steps taken in pursuance of this judgment. The Commissioner of Police may record statements of any person who could throw light on the fraud perpetuated. The advocate for Union of India shall also assist the Commissioner of Police in ascertaining the modus operandi adopted by the persons to commit fraud. The Commissioner of Police shall not spare any person if found involved in such serious offence.
7. The Prothonotary and Senior Master is directed to forward the copy of the judgment alongwith the entire proceedings of the petition and appeal in a sealed cover to the Commissioner of Police within a week from today.
8. Appeal is allowed and the judgment dated January 23, 1987 is set aside and the writ petition No. 173 of 1987 is dismissed.
9. No order as to costs.