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Prem Kumar Versus Customs

2016 (2) TMI 310 - DELHI HIGH COURT

Illegal acquisition of foreign currency - Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign visit. - These lawfully acquired 2110 Euros, were, however, used to conceal the 34000 Euros. - Held that:- It is not in dispute that foreign currency possessed by the petitioner consisted of Euros 23195 and Euros totalling Euros 36120. Cons .....

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ngs and released the foreign currency in his favour, then he cannot be held liable under Section 132 of the Customs Act. - Decided in favor of petitioners. - CRL. M. C. 1990/2010 - Dated:- 8-2-2016 - Suresh Kait, J. For the Petitioner : Mr. Yogesh Verma, Advocate For the Respondent : Mrs. Sonia Sharma, Senior Standing Counsel ORDER Suresh Kait, J. CRL.M.C. 1990/2010 1. By way of the present petition, filed under Section 482 Cr.P.C. petitioner has sought to quash the proceedings of the complaint .....

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no evidence as regards their lawful acquisition from an authorized dealer or money changer or otherwise was proved at the time of seizure or in their reply to show cause notice or at the time of personal hearing. Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign visit. These lawfully acquired 2110 Euros, were, however, used to con .....

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Section 119 of the Customs Act, 1962. However, I give an option to Sh. Prem Kumar to redeem the same on payment of redemption fine of ₹ 6000/- and to Sh. Sachin Bharti on payment of redemption fine of ₹ 5000/-. The Euros would however be released after obtaining a no objection certificate from the competent Court where the trial of the notices is pending. (ii) Confiscation of trousers, Olive green suit case of hard top bearing brand name American Tourister and bluish green suit case .....

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akhs only) on Sh. Prem Kumar under Section 114(1) of the said Act. (v) I also impose a personal penalty of ₹ 2,00,000/- (Two Lakhs only) on Sh. Sachin Bharti under Section 114 (1) of the said Act. 4. Being aggrieved, the petitioner challenged the aforesaid impugned order in Appeal, wherein it is observed by the appellate authority in its order dated 17.10.2007 as under:- The issue involved here is whether the seized foreign currency is prohibited good and whether it can be released on paym .....

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all without the general or special permission of the Reserve Bank of India import or send out of India, any Foreign Currency . A plain reading of the Regulation makes it clear the Foreign Currency as such is not prohibited good and its import or export is subject to the permission given by the Reserve Bank of India. Further as per Regulation 7 (2)(ii) of the said Regulations (2) any person may take or send out of India (ii) foreign exchange obtained by him by drawl from an authorized person in a .....

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icating Authority) was required to give option to redeem the same for home consumption in terms of Section 125 of the Customs Act, 1962. In this context it is considered necessary to refer to the relevant portion of Section 125 of Customs Act. In his voluntary statement dated 28.09.2005 tendered under Section 108 of Customs Act, 1962 the appellant 1 admitted and claimed that out of EUROS 12925 recovered from appellant 2 EUROS 11925 belonged to him and EUROS 1000 were legally procured by appellan .....

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/- (Rupees four lacs) under Section 125 of the Customs Act, 1962. The penalty imposed on the appellant 1 is also reduced from ₹ 4,00,000/- to ₹ 2,00,000/-. The adjudicating authority also imposed a penalty of ₹ 2,00,000/- on the appellant 2 which is on higher side as the entire foreign currency belonged to the appellant 1 as admitted by appellant 1 and as discussed above, the same is therefore reduced to ₹ 50,000/-. It is also on record that both appellant 1 and appellant .....

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is set aside and EUROS 1110 and EUROS 1000 released to the appellant 1 and the appellant 2 respectively without any fine. The impugned order-in-original no. 12/2007 dated 12.03.2007 passed by the Additional Commissioner of Customs, IGI Airport, New Delhi is upheld as modified above. 5. Ld. Counsel further submitted that as per the opinion of the appellate authority foreign currency was not prohibited under Customs Acts. Therefore, the currency in question was released in favour of the petitione .....

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................................................................................. ................................................................................. 22. While allowing the case of Sunil Gulati & Anr. V. R.K. Vohra, [145 (2007) DLT 612] this Court held that where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still c .....

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by the Joint Secretary to the Government of India, and same has attained the finality. 25. In view of the above submissions and discussions, I quash the proceedings in the criminal complaint dated 08.08.2002, under Sections 132 & 135 (1)(a) of the said Act, pending against the petitioner in the Court of Ld. ACMM, New Delhi. 15. Even otherwise, this Court is of the view that the argument raised by the learned counsel for respondent-Department is no longer res integra in view of the judgment o .....

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in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and the concerned person(s) is/are .....

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visions 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 departmen .....

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Custom Officer (supra). 17. Consequently, present petition is allowed and the impugned order dated 25th November, 2010 passed by the Special Judge, NDPS, Patiala House Courts, New Delhi, is set aside and proceedings in CC No.971/1/02 are also quashed. 8. Ms. Sonia Sharma, Sr. Standing Counsel for Customs submitted that she has filed a counter-affidavit, wherein the stand of the Department is as under:- (i) The writ petition needs no reply. However, that foreign currency is not prohibited goods .....

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wever only reduced the amount of PP. (ii) Further submitted writ petition is wrong and denied. However, ld. ACMM vide order dated 04.11.2009 ordered for release of foreign currency to the petitioner in terms of Orders of the Commissioner of Customs (Appeal) on consideration of the statement of both the accused that they will not dispute the circumstance of seizure and will not dispute identity of the seized foreign currency during the trial. (iii) Further it is submitted that writ petition is wr .....

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d from unauthorized sources which were in violation of Export and Import of Currency Regulations, 2000. She further submitted that vide order dated 04.11.2009, ld. ACMM ordered to release the currency to the petitioner in terms of order of Commissioner (appeal) on consideration of the statements of the petitioner that he will not dispute the circumstances of the seizure and will not dispute the identity of the seized foreign currency during the Trial. Thus, at this stage, the relief sought by th .....

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ndorsement to this effect. The petitioner had residual amount of Euros 110 from the previous visit. The Adjudicating Authority found the same to be correct. Therefore confiscation of Euros 1110 from the petitioner and its release on payment of fine of ₹ 6000/- was unwarranted and illegal. Accordingly, vide order dated 17.10.2007, the Appellate Authority set aside the confiscation of Euros 1110 and directed the same to be released in favour of the petitioner without any fine. Therefore, not .....

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