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Air Customs Officer IGI New Delhi Versus Pramod Kumar Dhamija

2016 (2) TMI 479 - SUPREME COURT

Smuggling of gold - exoneration of the respondent in the adjudication proceedings - It was submitted on behalf of the Department that the respondent had not joined investigation and as such the instant petition did not deserve any consideration and that there were not two Pramod Kumars but only one person having two addresses. The High Court by its judgment and order under appeal, allowed the petition and quashed Complaint No.66/1/96 pending before the Additional Chief Metropolitan Magistrate, N .....

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eave granted. 2. This appeal challenges the judgment and order dated 04.1.2011 passed by the High Court of Delhi at New Delhi in Crl. M.C. No.460 of 2009. 3. That the facts leading to the filing of this appeal are as under:- (A) On the basis of specific information, AIR Customs Officers (Preventive) at IGI Airport, New Delhi, on 09.07.1996 recovered and seized from meal trolleys of the aircraft of Lufthansa Airlines flight from Frankfurt to Delhi, 184 gold biscuits of ten tolas each, weighing 21 .....

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ed that on 6.07.1996, Ranbeer Singh and he went to Dubai where the respondent delivered two packets of gold; that they went to Frankfurt; that in the flight from Frankfurt to Delhi with the help of Ranbeer Singh, he put both the packets in dry ice trays and as per prearrangement these packets were to be removed and delivered to him near Moti Bagh Gurudwara by the catering staff and that he had agreed to pay ₹ 50,000/- for this job to that person; that he had to hand over this gold to the r .....

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ous summons, he did not cooperate with the investigating authorities and remained in hiding. (C) The Commissioner of Customs, Delhi accorded sanction on 04.09.1996 for the prosecution of the respondent, Varyam Singh, Ranbeer Singh and four others and accordingly Complaint No. 66/1/96 was filed in the Court of ACMM, New Delhi. The respondent was declared proclaimed offender by the Ld. ACMM, New Delhi in the subject case. (D) In the meantime adjudicating proceedings were initiated pursuant to the .....

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f details of call charges of Mobile phone number 9811028643 obtained from Essar Cell Phone mobile phone services, that on 21.04.1996 and 27.04.1996 telephone calls were made to telephone number 6914037; that he had been told that telephone number 6914037 belonged to Shri Varyam Singh and was his residence number and who had been arrested for smuggling of 184 gold biscuits. On being asked about that he stated that neither did he know any person by name of Shri Varyam Singh nor his telephone numbe .....

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he did not know Shri Varyam Singh and his telephone number. (E) The aforesaid order dated 30.09.1999 was carried in appeal and the Commissioner of Customs (Appeal) vide his order dated 25.01.2008 set aside the penalty imposed on the respondent. The Appellate Authority was of the view that there were two persons having same name i.e. Pramod Kumar, one in Dubai and the second being the respondent and that beyond the statement of the co-accused there was no material on record. During the course of .....

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and is not corroborated by the statement of any other person or by any documentary evidence. On the other hand the claim of the appellant that he had left India on 06.09.1994 and since then he has not visited India again is corroborated by the statements of various persons tendered under Section 108 of the Customs Act 1962 and also by documentary evidence i.e. copies of his passports. No other person involved in the case has mentioned anything about the appellant. Thus the statement of Shri Var .....

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e appellant is hereby set aside. (F) Based on the observations and findings rendered in the aforesaid order dated 25.01.2008, a petition under Section 482 of the Criminal Procedure Code being Crl. M.C. No. 460 of 2009 was filed on behalf of the respondent in the High Court of Delhi at New Delhi. It is relevant to note that in the petition itself two addresses of the respondent were given, one of Dubai and the other of Delhi. The affidavit in support of the petition was filed by none other than S .....

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h Court as under:- The entire evidence sought to be relied upon by the respondent department against the petitioner is the same, that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, I consider that no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court. 4. The exoneration of the respondent in the adjudication proceedings was the basis for petition unde .....

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i) Whether under any circumstance the finding of the Collector of Customs that the 1st and 2nd accused are not proved to be guilty operated as in issue estoppel in the criminal case against those accused? 5. The observations of the court in respect of aforesaid questions were as under:- 8…… The rule laid down in that decision was adopted by this Court in Pritam Singh v. State of Punjab, and again in N.R. Ghose v. State of W.B. But before an accused can call into aid the above rule, .....

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tor of Police (2002) 8 SCC 87 considered the effect of the decision of a civil court on criminal proceedings and it was concluded as under:- 30…. What emerges from the aforesaid discussion is -(1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquit .....

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e passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein…. 32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting .....

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other (2011) 3 SCC 581. In his dissenting opinion P. Sathasivam, J. (as the learned Chief Justice then was) concluded that there was nothing in Foreign Exchange Regulation Act, 1973 to indicate that a finding in adjudication is binding on a court in prosecution under Section 56 of Act or that the prosecution under Section 56 depended upon the result of the adjudication under the Act. C.K. Prasad J., speaking for the majority summed up as under:- 38. The ratio which can be culled out from these d .....

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by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding: If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (viii) In case of exoneration, however, .....

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