TMI Blog2012 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure, 1973 preferred by the petitioner seeking special leave to appeal against the judgment dated 11.7.2006 passed by learned ACMM whereby the accused (respondent herein) was acquitted of charge under Section 135(1) (a) of the Customs Act, 1962. 2. This is a case of recovery of 24 gold biscuits from the Arrival Immigration Hall of IGI Airport on 20/01/1994. The said gold biscuits were lying below the wash-basin in the toilet for handicaps and were wrapped in brown plastic adhesive tape. When the officers, acting on specific information, reached the spot, the respondent Shri Ram Chander, who was also standing there, tried to flee and struck at PW7 Duli Chand, Customs HC. It may be noted that at the relevant time the respondent was posted as constable of Delhi Police. 3. The respondent/accused initially resisted arrest but was overpowered by the officers of the appellant department. He was searched but no gold was recovered from his possession. The custom officers recovered a cloth belt from the possession of the accused which had been tied to his waist under his trousers. The belt had a pocket stitched on it, which was intended to be used for concealing the gold bisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the respondent/accused had no occasion or reason to go, but was found present alone would constitute the possession of contraband items by him. He submitted that the mere fact that he had been exonerated in departmental proceedings or the revisional proceedings will not entitle him to escape the prosecution in the criminal proceedings which are independently maintainable. He also submitted that the respondent/accused being the police official, there was no allegation of any enmity against him or the reason for his false implication in the present case. 8. On the other hand, learned counsel appearing for the respondent/accused submitted that there was no recovery of contraband gold effected from the respondent and that he has been falsely implicated due to enmity with the officers of the Customs Department and further that the revisional authority has exonerated him. 9. Before proceedings to advert to the submissions of learned counsel for the petitioner/department and learned counsel for the respondent/accused, it may be noted that it is trite that an appeal against an order of acquittal is extraordinary remedy and the power to appeal is to be exercised by the governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the explanation given regarding the history of dispute in pursuance of which a case under Section 186/353 IPC was registered. The registration of a case under Section 186/353 IPC against the accused is rather indicative and supportive of the prosecution case of his trying to escape and when apprehended he tried to obstruct the public servant. The acquittal of the accused in the said case under Section 186/353 IPC was not to be taken in favour of the accused/respondent, but rather supportive of prosecution version. PW7 Dulichand also corroborated the testimony of PW2 by specifically stating that on seeing the custom officials, the accused rushed and struck against him and as a result of which he fell down and sustained injuries. The entire testimony of PW7 remained un assailed by the accused/respondent. 12. There are various other factors and circumstances indicating the conduct of the accused/respondent. It remained to be explained as to how and under what circumstances, the accused went inside the toilet meant for handicapped persons when he being the police official working there was supposed to know the said toilet to be meant for handicapped persons. Even otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at his shop and had not gone to the Airport for testing. The testimony of this witness has been ignored on the ground that the purity of gold biscuits was not tested by drilling. The learned ACMM seems to have overlooked the fact that this witness was having experience of about 15 years and already similar types of certificates had been issued by him based on similar test method. 16. Though PW8 and PW9, as noted above, were also declared hostile for having resiled from their earlier statements, but it is to be noted that their statements under Section 108 of the Customs Act, have not been retracted till date. In their statements also, they have revealed large number of personal details which would not have been known to anyone, unless disclosed by them. That would prima facie reinforce that the statements were recorded at their dictates and were not pre-recorded. 17. The observations of learned trial court that it is but natural that PW4, PW8 and PW9 who were employees of the contractor would not have made statements or signed the documents without the specific knowledge of contractor and the possibility of their having signed statements made to the custom officers without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The findings of adjudication proceedings would have no bearing on the criminal case and that the criminal proceedings are to be determined in its own merits in accordance with law, uninhibited by the findings of the Tribunal or the adjudicating authority. It is also trite that where the accused person is exonerated by the competent authority/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether the criminal proceedings could still continue. If the exoneration is on technical ground or by giving benefit of doubt and not on merits or that adjudication proceedings were on different facts or that the adjudication proceedings lacked proper appreciation of evidence, it would have no bearing on the criminal proceedings. If the exoneration in the adjudication proceedings is on merits and it is found that the allegations are not substantiated and the accused is innocent, the criminal proceedings on the same set of facts and circumstances may not be allowed to continue [Sunil Gulati v. R.K. Vohra [2007 (1) JCC 220. 21. Thus, it comes to be that a distinction has been drawn where exoneration in an adjudicating proceeding on a give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en not recovered from the possession of accused/respondent and the retraction of statements of witnesses PW4, PW8 and PW9 and also the accused/respondent and also some of the witnesses turning hostile, are apparently not factually correct. The findings on facts of the Adjudicating Authority are final. 25. It has already been discussed above that there is no retraction of statement under Section 108 of the Customs Act by the aforesaid 3 witnesses and retraction of statement of accused/respondent is highly belated. The recovery of gold from near the place where the accused/respondent was standing alone and where he had no reason or occasion to be present, prima facie makes the recovery to be from the possession of respondent/accused. It is more so keeping in view the fact that no explanation is given by respondent/accused at that time and on the other hand he tried to escape and run away and in the process also had a scuffle with the officials of the department. There is nothing on record to suggest of any enmity of the respondent/accused with any of the officials of the petitioner department and also there is nothing to suggest as to why he would have been falsely implicated in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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