Cus - Respondent was exonerated not in departmental inquiry but in adjudication proceedings for levying penalty, by CESTAT - no infirmity in order of ACMM dropping criminal prosecution: HC
By TIOL News Service
NEW DELHI, JAN 25, 2017: THE Customs department has filed a petition before the Delhi High Court. The grievance of the petitioner is two fold, firstly unwarranted remarks against the counsel appearing on behalf of the petitioner in the two orders and secondly, dropping the proceedings against the respondent on his application under Section 245(2) Cr.P.C.
Factual background:
On 1st September, 1997, officers of the Customs Preventive, New Delhi intercepted one Mahender Goyal at the exit gate of domestic airport hall of Delhi Airport on his arrival from Kathmandu via Varanasi. His luggage was opened and examined in the presence of witnesses and it was found to contain 131 pieces of mobile phones (Sony and Siemens), 260 pieces of Chargers and adapters, 400 pieces of 8 M.B. RAM, 100 pieces of MPO cooler with leads, all of foreign origin and empty card board cartons of mobile phones bearing marking as Nokia and Siemens. The above goods valued at ? 1,05,20,000/- were seized since no evidence was produced of legal possession/import of the same. In his statement Mahender Goyal admitted that he started carrying mobile phones and computer parts from Kathmandu to Delhi for the last one month on the directions of Vijay Saxena and that Vijay Saxena gave him 3 pieces of baggage to carry to Delhi; that he was to deliver the same to one Tony who had a shop by the name M/s Gift Palace in the Municipal Market, Karol Bagh . He further stated that on reaching Customs arrival hall in Varanasi from Kathmandu , he gave the Customs clearance card (portion of the disembarkation card) to Arvind Kumar , Air Customs officer, the respondent herein who stamped the same; he paid ? 30,000/- to him for customs clearance and had not obtained any receipt for it.
In his statement, the respondent stated that on 1st September 1997, he was allotted preventive duty for attending departure and arrival of flight IC-752 from Varanasi to Kathmandu and IC-751 from Kathmandu to Varanasi but he did not remember Mahender Goyal and also whether he arrived at the Varanasi Airport from Kathmandu on 1st September 1997.
SCN came to be issued to Mahender Goyal , Vijay Saxena and the respondent herein proposing confiscation of seized goods and imposition of penalty. The adjudication authority ordered absolute confiscation of the seized goods and imposed penalties on Mahender Goyal,Vijay Saxena, Tony and his partner and also imposed a penalty of ? 2 lakhs on the respondent herein.
The CESTAT while setting aside the order imposing penalty on Arvind Kumar, Air Customs Officer, inter alia observed -
“… The stand of the appellant that he was not on customs clearance duty on 24.8.97 and 1.9.97 has not been found to be untrue and in fact, his contention stands indirectly accepted by the Commissioner who has held the appellant guilty of abetment by getting dutiable goods cleared free of duty through other customs officers posted in the Customs clearance counter at Varanasi Airport on the relevant dates. The evidence on record is not sufficient for the purpose of upholding the charge of abetment. Hence, we set aside the penalty imposed on the appellant and allow this appeal.”
Consequently, the respondent filed an application under Section 245(2) Cr.P.C. before the ACMM.
Noting that the counsel was not having a copy of application u/s 245(2) Cr.P.C. and which showed that either the Spl.PP was only interested in taking adjournments or does not brief his juniors, the hearing on the application u/s 245(2) Cr.P.C. was adjourned and a copy of the order was sent to the Commissioner, Customs.
Later, vide order dated 21st December, 2009, the ACMM accepted the application of the respondent and the proceedings were dropped relying on the fact that the order of the Appellate Tribunal had been accepted by the Commissioner of Customs and in view of decision in Sunil Gulati Vs. R.K. Vohra = 2006-TIOL-437-HC-DEL-COFEPOSA inasmuch as the respondent having been exonerated in the adjudication proceedings, the proceedings against him for criminal prosecution could not continue as the standard of proof was lesser in adjudication proceedings.
The petitioner submitted that the Supreme Court in the case of State of NCT of Delhi Vs. Ajay Kumar Tyagi held that exoneration of the accused in disciplinary proceedings would not ipso facto result into quashing of the criminal prosecution and criminal proceedings cannot be terminated on evidence in departmental proceedings.
The respondent relied upon the decision in the case of Radheshyam Kejriwal Vs. State of West Bengal & Anr. = 2011-TIOL-19-SC-FEMA and submitted that continuation of criminal proceedings against the respondent was an exercise in futility and was required to be quashed.
The High Court noted that the issue whether the criminal proceedings can be quashed in case a person has been exonerated by the adjudicating authority was decided by the Supreme Court in Radheshyam Kejriwal (supra) wherein it was held that if a person has been exonerated on merits and not on a technical ground, then the criminal proceedings can be quashed. And the law laid down has been reiterated in the decisions of the Supreme Court in Air Customs Officer v. Pramod Kumar Dhamija = 2016-TIOL-15-SC-CUS and M/s Videocon Industries Ltd. & Anr. Vs. State of Maharashtra & Ors. = 2016-TIOL-81-SC-FEMA .
The High Court also added -
++ Present is not a case where the respondent was exonerated in departmental inquiry proceedings but in adjudication proceedings for levying penalty under Section 112(b) of the Customs Act, 1962 by the Appellate Tribunal which is a quasi-criminal adjudicatory authority. Further, the Appellate Tribunal set aside the penalty after examining the witnesses and not on technical grounds.
++ In the present case, though some witnesses were not cross-examined, even without presenting the witnesses for cross-examination it was found out that their statements did not implicate the respondent and at best the allegations against him were in the realm of suspicion which could not reach the pedestal of proof beyond reasonable doubt. Hence, this Court finds no infirmity in the impugned order dated 21st December 2009 dropping the proceedings against the respondent.
++ As regards the second prayer of the petitioner of expunging the remarks in the two orders dated 8th December 2009 and 21st December 2009, a perusal of the same reveals that they were wholly unwarranted and are thus expunged.
The Petition was disposed of.
(See 2017-TIOL-169-HC-DEL-CUS)
