By TIOL News Service

NEW DELHI, FEB 16, 2016: 21 kgs of gold valued at 1.1 crore rupees was seized from two passengers at the Delhi airport on 09.07.1996. One of the passengers disclosed the name of one Pramod Kumar, the respondent in this case as the one who invested the money for the smuggling of the gold in this cases as well as earlier cases.

Prosecution was launched against Pramod Kumar in 1996 before the ACMM , Delhi who declared Pramod Kumar as a proclaimed offender.

In the meantime, adjudicating proceedings were initiated and the Additional Commissioner imposed a penalty of Rs . 15 lakhs on Pramod Kumar by his order dated 30.09.1999.

This order dated 30.09.1999 was carried in appeal and the Commissioner of Customs (Appeals) vide his order dated 25.01.2008 set aside the penalty imposed on Pramod kumar . The Appellate Authority was of the view that there were two persons having same name i.e. Pramod Kumar, one in Dubai and the second being the respondent and that beyond the statement of the co-accused there was no material on record.

Based on the findings of the Commissioner (A), a petition was filed in the Delhi High Court on behalf of Pramod Kumar. In the petition, two addresses of Pramod Kumar were given, one of Dubai and the other of Delhi.

The Delhi High Court allowed the petition and quashed Complaint pending before the Additional Chief Metropolitan Magistrate, in its order dated 04.01.2011. It was observed by the High Court as:-

"The entire evidence sought to be relied upon by the respondent department against the petitioner is the same, that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, I consider that no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court."

The Customs Officer is in appeal before the Supreme Court.

The Supreme Court referred to several decisions and particularly noted the case of Radheshyam Kejriwal v. State of West Bengal and Another - 2011-TIOL-19-SC-FEMA , wherein it was observed,

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding: If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue the underlying principle being the higher standard of proof in criminal cases.

Coming back to the present case, the Supreme Court observed the following crucial facts:

1. The order in original dated 30.09.1999 referred to the statement of Kanwar Bhan , the brother of the respondent, which clearly suggests that the respondent had come down to Delhi in April, 1996. This statement is not even referred to in the appellate order dated 30.09.1999 but a finding is rendered that the respondent had not visited India after September, 1994.

2. The respondent was declared a proclaimed offender and had not participated in any of the proceedings personally. In the circumstances no weightage could be given to copies of the passport submitted in support of the assertion that he had not visited India after September 1994.

3. The appellate order further discloses that the statement of Varyam Singh did allege the involvement of the respondent. In law, if such statement is otherwise admissible and reliable, conviction can lawfully rest on such material.

4. The finding in the appellate order that there were two Pramod Kumars , is completely incorrect and unstateable .

In the back drop of these facts, the Supreme Court held that it cannot be accepted that the exoneration of the respondent in the adjudication proceeding was on merits or that he was found completely innocent.

Held: High Court was not right and justified in accepting the prayer for quashing of the proceedings. The view taken by the High Court set aside and the appeal of the department allowed. Case on the file of the ACMM , shall be proceeded with, in accordance with law.

(See 2016-TIOL-15-SC-CUS)