9911796707
TMI Blog2011 (7) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... of that white powder was Rs. 4,96,54/- and the market value was Rs. 8,71,200/-. 2. Ms. Sangeeta Bhayana, ld. counsel for the petitioner submits that the petitioner has been falsely implicated in the above mentioned case, as even in her statement recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as "the said Act"), she has clearly stated that she had no knowledge regarding the concealment of the white powder in the shampoo and talcum powder bottles. 3. The petitioner has further stated that she did not know Mohan Chopra, Masterji and Peter who had allegedly given the plastic bottles in question to her son Karamvir in Hongkong for delivery to his man outside the Airport. She has also stated in her statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r boxes. Lack and absence of having knowledge, has been clearly in the statements of both the applicants at the initial stages of seizure under Section 108 of the said Act. Later the statement of prime accused Shri Kuldip Chopra was recorded under Section 108 of the said Act which further corroborates this version of the applicants which stated that both of them had no knowledge regarding the contents of the talcum powder boxes. 9. The Joint Secretary, concluded that in the absence of any such knowledge and judicial pronouncements and the abandonment of goods, it will be difficult to fully establish mens rea in case of both the applicants and the learned Joint Secretary was of the opinion that both the applicants cannot be visited wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was exonerated by the learned Joint Secretary to the Government of India, vide its order dated 11-8-2005, the said order has attained finality, since the aforesaid order has not been challenged by the Customs. 15. Further, learned counsel for petitioner submits that since the petitioner has been exonerated in the adjudication proceedings, therefore, he cannot be prosecuted in the complaint filed by the department, under Section 132 and 135(1)(a) of the said Act. 16. Thus, by way of this petition, she has prayed to quash the prosecution proceedings pending before the learned ACMM; New Delhi. 17. The ld. counsel for the petitioner has referred to the judgment of the Supreme Court in the case of Radheyshyam Kejriwal v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 proceedings is on merits holding that there is no contravention of the provisions of any Act. 22.2 We respectfully endorse the view taken by the Bombay High Court in the case of Hemendra M. Kothari (supra) and De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia has accepted the contention of the petitioner that she had no knowledge about the substances in the aforesaid shampoo and talcum powder bottles, therefore, in this case there cannot be any mens rea since the petitioner had no knowledge about the substance found in the aforesaid bottles. The Joint Secretary has maintained the order of confiscation and the same has not been challenged by the petitioner since the said two bottles were of the substances which are not permissible to be given to the petitioner. Under the Customs Act, 1962 there is complete restriction on the aforesaid substance, which the petitioner has brought from Hong Kong, without her knowledge, therefore, her state of mind cannot be said to be having an intention to impor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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