TMI Blog2009 (8) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 12-8-2009 - Mool Chand Garg, J. Crl.M.C. No. 1815/2005 and Crl.M.A. No. 4665/2005 Shri Pradeep Jain, Advocate, for the Petitioner. S/Shri Satish Aggarwala with Shirish Aggarwal, Advocates, for the Respondent. [Order]. - This petition has been filed under Section 482 Cr.P.C. by the petitioner for quashing the order dated 23-10-2003 passed by the ACMM New Delhi dismissing the application filed by the petitioner under Section 245(2) Cr.P.C. for discharge in a criminal complaint case, where he was arrayed as accused no. 2 along with one Tankeshwar Singh Nimbekar. The aforesaid criminal complaint is filed by the respondent/DRI on the following allegations: I. That one Tankeshwar Singh accused no. 1 in the complaint, was apprehended by the Customs Department while he was about to leave New Delhi for Dubai vide Flight No. EK-701 and at that time he was found in possession of foreign currency wrapped in polythene and kept below the soles of his foot. The distinction of the foreign currency recovered has been given as follows : (i) Left Foot-Deutsche Mark = 1000x65 = 65,000 (ii) Right foot-(a) Deutsche Mark - 500x44 = 22,000 (b) Swiss Frank = ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placard of his name at Dubai Airport; that he did not know where this money had to go and he was only to carry that money from Delhi to Dubai. 2. Statement of the present petitioner was also recorded by the Customs Authorities under Section 108 of the Customs Act, when he is alleged to have stated : That in the year 1995, he started export business to Russia and opened a firm in the name and style of M/s. Cloud Club India; that Tankeshwar Singh Nimbekar was his employee and working in the capacity of supervisor in-charge; that in March or April, 1999, he sent Tankeshwar Singh Nimbekar to Dubai to carry the samples for one of his buyers; that he left for Moscow on 11-8-1999 and from there he went to Dubai on 18-8-1999 to collect the payments for his past exports; that he never asked Tankeshwar Singh Nimbekar to carry any foreign currency for him; that on 19-8-1999, he came to know while Nimbekar was arrested with foreign currency at IGI Airport, New Delhi; that while he was in Moscow, Tankeshwar Singh Nimbekar had asked for two days leave telephonically; that there is no record of the same; that after the arrest of Tankeshwar Singh Nimbekar, he was apprehensive and scared to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present petitioner. However, vide order dated 26-8-2002 the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, exonerated the petitioner of the allegation made against him by the respondents. The relevant portion of the order, which has been passed in this regard, is reproduced hereunder: 5. Against, Shri Vikas Mohan Singhal, Appellant, the only evidence to connect him with the foreign currency is the statement of Shri Tankeshwar Singh, appellant, from whom the recovery took place. But even, he is in his own statement, had admitted that Shri Vikas Mohan Singhal, appellant, was not in India when one Afgani person gave him the foreign currency, but was abroad. Shri Vikas Mohan Singhal, appellant, himself has denied his connection with the seized foreign currency. The fact that Shri Tankeshwar Singh, appellant, from whom possession of foreign currency had been recovered, was working as an employee of Shri Vikash Mohan Singhal is not enough to raise an inference that the foreign currency belonged to him. Even otherwise, statement of Shri Tankeshwar Singh, appellant, being of co-noticee cannot be made sole basis for imposing penalty on Shri vikash Mohan Singhal, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciating the fact that the Tribunal is a fact finding body and exonerated the petitioner of the charges leveled against him inasmuch as the offence was sought to be proved by the respondents only on the basis of statement of accused No. 1, Tankeshwar Singh, who, in fact, has not implicated the present petitioner. The exoneration of the present petitioner was on merits inasmuch as the respondents failed to prove the allegation made against the petitioner in the departmental proceedings which proceeded on the same cause of action. As such, the petitioner was entitled to discharge in respect of the criminal charges also. Hence, the present petition. 8. Learned counsel for the petitioner has also relied upon the following judgments in support of his case: (1) Sunil Gulati v. R.K. Vohra - 2007 (1) JCC 220 (2) G.L. Didwania v. Income Tax Officer - 1999 (108) E.L.T. 16 (S.C.) (3) Ajay Gulati v. Union of India Anr. - Crl.M.C. 1108-09/2007, decided on 3-4-2008 [2008 (228) E.L.T. 177 (Del.)] (4) D.K. Rastogi v. Union of India, Crl.M.C. 6649/2005, decided on 18-4-2007 [2007 (217) E.L.T. 26 (Del.)] (5) Standard Chartered Bank v. Directorate of Enforcement - 2006 (197) E.L.T. 18 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue the reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental Page 0751 proceedings is on merits holding that there is no contravention of the provisions of any Act. In the aforesaid judgment the learned Single Judge after applying the aforesaid p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. With reference to the judgment delivered in the case of Sunil Gulati v. R.K. Vohra (supra) it has been observed that the said judgment itself does not help the petitioner once it is held that the exoneration of the petitioner was only on account of insufficient evidence. Respondents have relied upon the following portion of the judgment in this regard: 1. On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. For initiating criminal proceedings one does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature. 2. The findings in the departmental proceedings would not amount to resjudicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of "prosecution". 3. In case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the respondents, I find that in the case of Naresh I. Sukhwani v. U.O.I. (supra) the only thing said by the Hon'ble Supreme Court was: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 16. In the case of Paramjit Singh v. Commissioner of Customs Ors. (supra) it has been observed: 6. As per the allegations the petitioner was the owner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge of a Police Station to require any person to produce a document or thing. Likewise, under Section 161 CrPC, the power to examine persons who may be acquainted with the facts and circumstances of the case, by no means indicates that such statements of a person can be recorded only once and not on successive occasions. 17. A reference may be made to the judgments concerning the interpretation of Section 67 NDPS Act. In Raj Kumar Karwal v. Union of India, the Supreme Court was examining whether officers of the Department of Revenue Intelligence were police officers within the meaning of Section 25 of the Evidence Act, 1872 and, therefore, whether the confessional statement recorded by such officers in the course of the investigation of a person accused of an offence under the revenue laws was admissible in evidence against him. The question was answered in the negative and it was held that such statements made to the officers of the Department of Revenue Intelligence were not hit by Section 25 of the Evidence Act. 18. Still the twin tests of voluntariness and truthfulness will have to be satisfied. As far as the statement not being voluntary is concerned, there is no evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations against the petitioners were that they indulged in clandestine removal of manufactured goods exceeding rupees one crore and the petitioners were liable to pay excise duty. The adjudicating order was passed against the petitioners by Commissioner of Central Excise. Aggrieved against that order they preferred appeals to the Customs, Excise and Service Tax Appellate Tribunal and the Tribunal allowed the appeals and held inter alia that no materials were produced nor was there anything brought on record to show that the goods were actually cleared by the petitioners. On the basis of findings and order of the Tribunal (which it is stated, has become final), the petitioners claimed that it was not open for respondent to proceed with the criminal complaint any longer. 20. Similarly, in the case of D.K. Rastogi (supra) also delivered by Justice S. Ravindra Bhatt, where Section 40 of FERA was involved and statements recorded under Section 108 of the Customs Act were also relied upon, it has been observed: 15. In the facts of this case, it is evident that the findings of the Special Enforcement Director discharging the show cause notices issued to the petitioner were prem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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