TMI Blog1995 (3) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1990 has been filed seeking for the issuance of a writ of certiorarified mandamus to call for and quash the order of the first respondent - Collector of Customs and Central Excise, Trichy in No. C. No. VIII/10/179/87-Cus. Adj. Order No. 3089 (Collr), dated 30-11-1989. 3. The petitioner in these writ petitions was issued with an order of detention, dated 10-10-1988 by the Government of Tamil Nadu, detaining him in exercise of the power conferred under Section 3(1)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein-after referred to as the Act) with a view to preventing him from dealing with smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. Having regard to the nature and stage of proceedings pending before the Authorities, we would consider it inappropriate to deal with the facts of the case at length. Suffice it to notice that pursuant to a search conducted at Room No. 68, S.M. Lodge, Coimbatore, on 25-4-1987 by the Officers of the Customs Department, five persons were found in the Room with Gold stated to be of foreign origin. On interrogation by the Authorities of the said per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fective alternative remedy by way of an Appeal, which cannot be allowed to be bye-passed. Though the petitioners in these writ petitions filed Writ Appeal No. 444 of 1990, the same was dismissed on 19-4-1990 on an endorsement made by the counsel as `withdrawn and may be dismissed . Thereupon the said petitioners filed an appeal before the Tribunal (second respondent). Along with the Appeal, the petitioners also sought for waiver of pre-deposit of the penalties of Rs. 25 lakhs and Rs. 10 lakhs respectively levied under the Customs Act, 1962 and Gold (Control) Act, 1968, as noticed supra. The Tribunal by its order, dated 4-5-1990 was also pleased to pass a conditional order, directing to make a pre-deposit of Rs. 10 lakhs in respect of the proceedings under the Customs Act, 1962 and Rs. 50,000/- in respect of the proceedings under the Gold (Control) Act, 1968 on or before 31st July, 1990 and report compliance thereof, so that the Appeals could beconsidered and disposed of on merits. It is challenging the said order of the Tribunal, dated 4-5-1990. Writ petition No. 11363 of 1990 has been filed and in addition the petitioner also has chosen to file Writ petition No. 11364 of 1990, cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also the other Authorities of the Department have formed an opinion about the guilt of the petitioner and made reports to the Government, resulting in the detention order referred to above and while that be so, such authorities, who have earlier formed an opinion about the guilt of the petitioner, cannot be said to be independent Athorities, entitled to exercise jurisdiction in the matter of adjudication proceedings. In substance, learned Senior Counsel contended that the Collector of Customs and Central Excise, Trichy, who passed the adjudication order would be a biased officer and Authority, having regard to the opinion formed by him and that therefore, the principles of natural justice have been grossly violated and the orders of the Collector of Central Excise and Customs, Trichy are liable to be quashed on this short ground alone. It was also contended by learned Senior Counsel that the said order of detention and the action on the part of the Authorities have been approved even by the Union of India and that the Departmental Officials including the Government of India would therefore, be thoroughly disentitled to deal with the case of the petitioner for the purpose of adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed an order waiving the pre-deposit of the entire amount without any stipulations whatsoever. 8. As noticed supra, learned Counsel for the Petitioner in Writ Petition No. 13488 of 1990 merely adopted the submissions of learned Senior Counsel. 9. Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appearing for the Department contended that the petitioners are not entitled to invoke the extraordinary jurisdiction of this Court, they having already invoked the appellate jurisdiction of the Tribunal by filing appeals and thereafter, also sought for waiver of the pre-deposit under the relevant provisions of the Act and that on this short ground alone, these writ petitions are liable to be summarily rejected. It was also contended that the plea of bias or want of independent and unbiased approach on the part of the Authorities, has no merit whatsoever and that acceptance of such a plea would be grossly unjust apart from the fact that a similar plea urged earlier has been rejected by this Court and in view of the conclusion of this Court in the earlier round of litigation the Petitioner is precluded from re-agitating the very same issue, both on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1961 (SC) 264 = 1961 (1) SCR 933] is that of the Supreme Court, wherein it has been held that the onus of proving the ingredients as also the necessary charge for the seized articles in question, which were smuggled into the country was on the Department. In our view in the teeth of an order of adjudication on an appreciation of the factual contentions of the evidence on record, it is for the petitioners to pursue their remedies before the Appellate Tribunal to find out whether the alleged charges have been established in the manner required in law and the stage to urge such contentions before this Court cannot be stated to have reached as on date. 13. In the decision reported in Manipur Administration v. Thokchom, Bira Singh [AIR 1965 (SC) 87 = 1964 (7) SCR 123), the Supreme Court was concerned with the question as to whether an accused acquitted in previous trial on same set of facts can be proceeded against on the same facts in a ... trial initiated in the teeth of the principle of issue-estoppel. As noticed earlier, the scope and object of a prosecution and the nature of powers and the object of adjudication proceedings are distinct and separate and the principles in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be attracting the principles of double jeopardy. 17. In the decision reported in Kartar Singh v. State of Punjab [1994 Crl. L.J. 3139], the Apex Court while dealing with the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act (31 of 1985) TADA, held that, though the by-passing of the provisions of the Act, encouraging recourse to the provisions of Article 226 of the Constitution of India would defeat the very object and scheme of the Act or the intendment of the Parliament, at the same time, it cannot be said that the High Courts have no jurisdiction to interfere with the same and that though the High Courts have very wide powers under Article 226 of the Constitution of India, the very vastness of the powers imposed on it the responsibility to use them with circumspection and in accordance with the judicial consideration, and well considered and established principles. It was also emphasised therein, while striking down Section 22 of the TADA, that the evidence regarding the identification on the basis of a photograph cannot be the same as that of the evidence of test identification parade. On the facts and circumstances of the case before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny stage or played any active role in it. But to contend that having been an officer of the department, which proceeded against him that by itself would constitute a disqualification to be a member of the Tribunal even to hear the appeal before the Tribunal would be far-fetched a stand to withstand the scrutiny of reason and if countenanced would lead to a monstrous situation and render the petitioners virtually immune from - any action for their acts of commission or omission otherwise punishable in law. None of the authorities, including the adjudicating Authority have been attributed with any personal bias or personal interest in the matter against the petitioner. Such authorities have been handling the case of the petitioners at different stages under different enactments in exercise of the respective powers conferred upon those authorities under various enactments. Merely because the competent authority has been conferred with powers to deal with a situation under more than one act for varying and different purposes, playing different roles assigned to them under such enactments having recourse to one or other such provisions of law or one or other of the enactments cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at of the Apex Court that the acquittal in a Criminal Prosecution per se is no justification to exonerate or absolve the persons concerned who were acquitted in Criminal proceedings of their liability under other provisions of law as in this case the liability to be proceeded against in adjudication proceedings for confiscation as to the levy of penalty, under Section 112 of the Customs Act, 1962 and Section 74 of the Gold (Control) Act, 1968. The object of criminal proceedings and the object of the adjudication proceedings are not only distinct and separate but the nature of powers exercised by the Criminal Court and of the adjudicating authorities under the respective Acts cannot also be said to be one and the same so that the exercise or use of one can by any stretch of imagination be said to be in derogation or to be destructive of the other. Consequently, we are unable to accept the plea based on the verdict of acquittal recorded by the Criminal Court in favour of the petitioners in this regard. 20. Equally untenable and devoid of merit are the submissions based on the questions of alternative remedy. This is not a case, where the consideration is as to whether the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very proceedings which are the subject matter of appeal before the Tribunal constituted under the Act. 21. The further plea on behalf of these petitioners that the Tribunal ought to have granted an unconditional order with regard to the waiver of pre-deposit also does not appeal to us as of any merit. We are not making any observations on the merits of the contentions otherwise in respect of the factual findings recorded by the authority below in view of the pendency of the appeal before the Tribunal. Though the Tribunal has chosen to reject the appeal in the case of the petitioner in W.P. Nos. 11363 and 11364 of 1990 by the subsequent orders passed permission has been granted to the petitioners to have the same moved for further orders on and after the disposal of these Writ Petitions. On going through the order of the Tribunal where conditional orders of waiver of pre-deposit has been made, we do not find any patent error of law or perversity of approach in them and therefore we do not propose to interfere with the orders depicting conditional deposit except modifying the same having regard to the pendency of the Writ Petitions all along in this Court, so as to enable the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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