TMI Blog2004 (3) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... the said bag, which was checked in at the ticket checking counter of the Airlines. The said Mr. Shaikh was found in possession of Emirates Air Ticket for Mumbai-Dubai-Mumbai. The air ticket showed that the said Mr. Shaikh had one checked-in baggage showing Sr. No. 82. The said ticket also showed small torn portion of baggage identification tag affixed to it. Mr. Shaikh admitted the ownership of the said bag as his. The said bag was then examined. Indian currency and foreign currency of various denomination equivalent to ₹ 11,19,836.70 was found concealed in the false bottom of the said bag. The currency notes were seized under reasonable belief that they were attempted to be smuggled out of India and so they were liable for confiscation under the provisions of the Customs Act, 1962 read with the Foreign Exchange Regulation Act, 1973. 3. On 26/6/1989, statement of Ismail Moiddin Shaikh was recorded under Section 108 of the Customs Act in which he admitted possession of Indian and foreign currency and its recovery and seizure. He stated that he was carrying it on behalf of one Abdul Razak to Dubai on monetory consideration. He stated that Abdul Razak had given him idea abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ticket. She also gave him one baggage identification tag number to fix on the said zipper hand bag and affixed the counterfoil of the same on the jacket of the air ticket. He put the baggage identification tag on the said zipper hand bag and placed it on the conveyor belt. Thereafter, he tore the said counterfoil of the baggage tag affixed to the jacket of the air ticket. He went out and gave the same to Mr. Anjum, who told him to see him after the departure of the flight to collect the money. Thereafter, he came in and collected the flight coupon of the said air ticket and after putting it on the said air ticket he cancelled the entry made by Ms. Kalpana Mukherjee and endorsed himself the said air ticket along with coupon as no baggage. He kept back the flight coupon and gave the ticket to the passenger Mr. Ismail Moideen and told him to proceed for immigration and Customs formalities. He further disclosed that before coming into contact with Mr. Anjum, he used to push baggages of passengers going to Dubai by Emirates flight for one Mr. Moosa. He used to get ₹ 4,000/- from Mr. Moosa on each occasion. The petitioner was released on bail on 12/7/1989. Immediately thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred by the Department. 10. Aggrieved by the order dated 18/9/1991 passed by the Collector of Customs, the petitioner preferred an appeal before the Customs, Excise Gold (Control) Appellate Tribunal, (for short, the CEGAT ), Western Region, Bombay. By order dated 11/9/1998, the CEGAT allowed the appeal and quashed and set aside the penalty imposed on the petitioner and stated that Enforcement Authorities acting under the FERA Act had proceeded against the petitioner based on the same evidence and had given a finding that no case is made out under that Act against the petitioner and, hence, the same result should follow in the proceedings under the Customs Act, 1962. It was observed that the order of Additional Director of Enforcement exonerating the petitioner has been passed subsequent to the order dated 18/9/1991 passed by the Additional Collector of Customs, Bombay. It was further observed that when the proceedings before the CEGAT pertain to provisions of the FERA Act read with Section 11 of the Customs Act, 1962 and once it is found by the FERA authorities that the petitioner was not liable to be penalised under that Act, penalty under the Customs Act becomes unsus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Income-tax Officer, Central Circle, Amritsar, 1982 ITR Vol. 133 pg. 909; G.L. Didwania and Anr. v. Income-tax Officer and Anr., 1997 ITR Vol 224 pg. 687 and Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, . He then relied on the judgment of this court in Adam Jusab Sameja v. Asstt. Collector of Customs, 1990 (48) E.L.T. 330 (Bom.). Reliance was also placed on the judgment of the Delhi High Court in Willi Lemback v. Rajan Mathur and Anr., XI-1992 (3) Crimes 692. The learned counsel then contended that the learned Magistrate has not applied his mind to the relevant judgments of the Supreme Court as well as of this Court and, hence, his order dated 29/1/1999 also deserves to be set aside. 13. As against this, Mr. Satpute, learned counsel for respondent 2 contended that there is a basic difference between adjudication proceedings and prosecution and there is no absolute rule that if a person is exonerated in a adjudication proceeding, the prosecution initiated against him must necessarily be dropped. He submitted that considering the nature of the involvement of the petitioner, the prosecution initiated against him ought not to be quashed. 14. It is necessary to first have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total income of the appellant. Thereupon, the appellant filed a petition to the Magistrate praying that the criminal proceedings be dropped. The said petition came to be dismissed. The petition filed by the appellant in the High Court also came to be dismissed and the appellant appealed to the Supreme Court. The Supreme Court allowed the appeal of the appellant observing that the assessing authority's finding that the appellant had made a false statement in respect of the income of the firm in question has been set aside by the Tribunal and, therefore, the criminal proceedings could no longer be sustained. The Supreme Court followed its judgment in Uttam Chand's case (supra). 16. In Adam Jusab's case (supra), contraband good was seized from a vessel. The petitioner therein was a tindel. He was arrested. After the investigation, adjudication proceedings were taken up with notices to all the accused. The Additional Collector of Customs (Prev.) completely exonerated the petitioner holding that except the retracted confession of the co-accused, there was no independent material to connect the petitioner therein with smuggling. In spite of the said order, the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of criminal proceedings under Section 276(C) and Section 277 of the Act . Significantly the Supreme Court observed that the criminal court, no doubt, has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Income-tax Act. The Supreme Court considered a situation where an assessee liable under the Income-tax Act had failed to convince the authorities in the proceedings under the Income-tax Act that he had not deliberately made any false statement or that he has not fabricated any material evidence. It observed that if the decision of the Income-tax authorities is held to be binding on the criminal court, then the conviction of the assessee by the criminal court would follow and, therefore, the criminal court will have to independently judge the evidence before it. 18. It appears from the above judgments that though it is true that generally, if a person is fully exonerated in the adjudication proceedings, a prosecution based on the same evidence and on the same charges is liable to be quashed, no hard and fast rules can be laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson is exonerated in adjudication proceedings, the prosecution may still have to go on. 20. However, in this case, there is yet one more circumstances which is in favour of the petitioner. The respondents have not challenged the order dated 27/9/1992 passed by the Additional Director, Enforcement Directorate, whereby the proceedings against the petitioner were quashed. The respondents have, therefore, accepted the finding that the petitioner has not attempted to transfer the foreign currency. If they were to challenge that order, then perhaps the complexion of the present case might have changed. In Willi Lemback's case (supra), where the High Court was faced with a similar fact situation, while quashing the complaint, the Delhi High Court referred to its earlier judgment in S.K. Sinha v. S.K. Shinghal and Anr., . It would be advantageous to reproduce the relevant paragraphs from S.K. Sinha's case (supra). A decision by the Tribunal in the proper sense of the word therefore, is a decision of a departmental authority drawn on the basis of a set of facts and evidence. The least that can be said is that if the department does not feel aggrieved of the finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
