TMI Blog2005 (5) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable to be confiscated. During search from the premises of accused No. 2, currency notes amounting Page 1627 to ₹ 29.63 lakhs and certain other recoveries were made. Following disclosure by accused Nos.1 2 the house of Satya Narayan Aggarwal was also searched and Indian currency notes amounting to ₹ 6,77,750/- and ten smuggled gold biscuits valuing ₹ 2.5 lakhs and certain other documents were also seized. About accused Nos.4 5 it was alleged in the complaint that they were knowingly concerned in fraudulent evasion of the prohibitions imposed in the importation of the gold into India by Section 14 of the Foreign Exchange Regulation Act, 1973 and had committed offence punishable under Section 135 of the Customs Act. There was, however, no evidence against the petitioner of any kind. No evidence against the petitioner was mentioned in the order sanctioning prosecution. The show cause notice was adjudicated by Shri Sidharth Kak, Commissioner of Customs, who passed an order dated 31.3.1992 examining the facts. He found that 260 foreign marked gold biscuits were smuggled into India from village Passur, Jammu border by Musataq and handed over to Pt. Durga Dass Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court and various High Courts, particularly that of this court, I am of the opinion that the petitioner's contention has force. To understand the development of the law on the subject, the chronological restatement of the judgments cited can be made. The earliest in point of time is the judgment in the case of The Assistant Collector of Customs, Bombay and Anr. v. L.R.Melwani and Anr. reported as , which was a case under the Sea Customs Act, 1878. The point raised before the Supreme Court in that case was primarily related to protection under Article 20(2) of the Constitution and Section 403 of the Code of Criminal Procedure, 1898. It was found that the bar did not apply to cases where the accused had only been given relief in departmental adjudication because such adjudication did not actually amount to trial by a criminal court and acquittal by the same. The conclusion of the court was that the criminal prosecution of the accused for alleged smuggling was not barred merely because the proceedings were earlier instituted against him before the Collector of Customs. Adjudication before the Collector of Customs was not a prosecution nor the Collector of Customs was a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -assessed made a false statement in respect of income of Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained. 5. Mr. A.Raghuvir, learned Senior Counsel appearing for the department, submitted that the fact whether the firm is a genuine firm, still remains as a question to be resolved and, therefore, the proceedings cannot be quashed at this stage. We do not agree. The whole question is whether the appellant-assessed made a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chand's case , the prosecution cannot be sustained. Accordingly, the proceedings are quashed and the appeal is allowed. 7. Thus even without going into the question whether Article 20(2) applied to the case, the Supreme Court ruled in definite terms that once the department itself had found that the allegations against the accused were not true, the criminal proceedings should not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /98 titled M/s. Ashok Manufacturing Company Pvt. Ltd. and Ors. v. Sh. C.K. Moorjani decided on 31st October, 2000. In all these cases this court have unhesitatingly taken the view that if departmental proceedings have concluded in favor of the accused, he could not be again prosecuted in the criminal court as the same will be an abuse of the process of law. 12. The latest judgment of the Supreme Court in the case of K.C.Builders and Anr. v. The Assistant Commissioner of Income Tax reported as is based on finding of income-tax authorities. In this case the criminal prosecution was on the allegations that a conspiracy had been entered into between the accused appellants and they had filed false returns of income before the department which led to concealment of income to evade tax. The assessing authority had found concealment of income and the Assistant Commissioner of Income Tax levied penalties under Section 271(1)(c) of the Income Tax Act, 1961. The first appeal against the order of penalties for concealment of income before the C.I.T. (Appeals) failed. Thereafter the complaints were filed for different years in the court of Additional Chief Metropolitan Magistrate, Chennai fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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