TMI Blog2017 (1) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... plication disposed off. - CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7285 of 2015 - - - Dated:- 10-1-2017 - MR. J.B.PARDIWALA, J. FOR THE APPLICANT : MR SHAILESH C PARIKH, ADVOCATE FOR THE RESPONDENT : MR DEVANG VYAS, ASST.SOLICITOR GENERAL OF INDIA, MR HRIDAY BUCH, ADVOCATE, MS SHRUTI PATHAK, APP ORAL ORDER By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for the following reliefs : (A) To admit the petition and call for the record and proceedings of CRIME No.F.No.DRI/AZU/INV-16/2009/Part- 1 from the Court of Addl. Chief Metropolitan Magistrate and quash and set aside the same. (B) During the pendency and final hearing of this petition, the respondent may be directed to release the amount of ₹ 10 lakh deposited at the time of bail and the passport of the petitioner on any terms and conditions as deemed fit and proper by this Hon ble Court. (C) During the pendency and final hearing of this petition, Your Lordships may be pleased to stay the proceedings going on before the Hon ble Additional Chief Metropolitan Magistrate Court, Ahmedabad. (D) Your Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters have violated/contravened the provisions of Section 46(4) of Customs Act, 1962 in as much as you, in connivance with the actual importers have failed to give true declarations regarding the correct description and value of the said imported high end Cars/SUVs imported through JNPT/Chennai ports. The said high end Cars/SUVs are therefore liable to confiscation under Section 111(d) and (m) of the Customs Act 1962. As a result, the imported Cars/SUVs so imported are to be treated as smuggled goods as defined in Section 2(39) of Customs Act, 1962. Further you are the person who has knowingly aided and abetted in procuring, carrying, removing, depositing, harboring, keeping, selling or in any other manner dealt with the fraudulently imported high end Cars/SUVs in respect of which you had reason to believe that the said imported Cars/SUVs are liable for confiscation under Section 111(d) and (m) of Customs Act, 1962. You have, therefore, committed an offence punishable under Section 135(1)(i) of Customs Act, 1962. Place : Ahmedabad Date : 27.10.2009 (Subramaniam S.Iyer) Intelligence Officer, DRI, Ahmedabad. The applicant was ordered to be releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officials of the DRI twice in a month. His passport has also been taken away, and at the time of furnishing of the bail, he had to deposit ₹ 10 lac in cash. I expect the authorities concerned to look into the matter at the earliest and act in accordance with the guidelines issued by Circular No.27/2015-Customs, F.No.394/68/2013-Cus (AS) of the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise Customs (Anti-Smuggling Unit), New Delhi, dated 23rd October 2015. The same is reproduced as under : Circular No.27/2015-Customs F.No.394/68/2013-Cus (AS) Government of India Ministry of Finance Department of Revenue Central Board of Excise Customs (Anti-Smuggling Unit) New Delhi, the 23rd October , 2015 To All Chief Commissioners of Customs, All Chief Commissioners of Customs (Preventive), All Chief Commissioners of Customs, Central Excise and Service Tax, All Chief Commissioners of Central Excise and Service Tax, All Chief Commissioners of Service Tax, Chief Commissioner (AR), CESTAT, All Directors General, Webmaster, CBEC Sir/Madam, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Outright smuggling cases: (i) Cases involving unauthorized importation in baggage / cases under Transfer of Residence Rules, where the CIF value of the goods involved is ₹ 20,00,000/- (Rupees twenty lakh) or more; (ii) Outright smuggling of high value goods such as precious metal, restricted items or prohibited items notified under section 11 of the Customs Act, 1962 or goods notified under section 123 of the Customs Act, 1962 or foreign currency where the value of offending goods is ₹ 20,00,000 (Rupees twenty lakh) or more; 4.2.1.2. Appraising Cases/ Commercial Frauds: (i) In cases related to importation of trade goods (i.e. appraising cases) involving- (a) wilful mis-declaration in value/description; (b) concealment of restricted goods or goods notified under section 11 of the Customs Act, 1962, where CIF value of the offending goods is ₹ 1,00, 00,000 (Rupees one crore) or more; (ii) In cases related to fraudulent availment of drawback or attempt to avail of drawback or any exemption from duty provided under the Customs Act 1962, if the amount of drawback or exemption from duty is ₹ 1,00, 00,000 (Rupees one crore) or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantum of punishment under section 135 of the Customs Act, 1962 is linked with the amount of imports duty/market price of offending goods/drawback amounts. However, the quantum of punishment in respect of the offences covered under remaining sections namely 132,133,134, 135A or 136 of the Customs Act, 1962 is not linked with the amount of imports duty/market price of offending goods/ineligible drawback amount. In these circumstances, the threshold limit for deciding on launching of prosecution under these sections may be taken as the value which is applicable for section 135 of the Customs Act, 1962 (refer to para 4.2 4.3). 4.5. It is clarified that prosecution in respect of narcotic drugs and psychotropic substances may be launched as per the provisions of the NDPS Act, 1985. 4.6. Except in respect of cases covered by sub paras 4.2.1.2 and 4.2.2 above, in all other cases, prosecution may be launched after due sanction by the Commissioner /Principal Commissioner (Pr. Commr.) or Additional Director General (ADGRI) / Principal Additional Director General of Revenue Intelligence (Pr. ADGRI), as the case may be. Prior approval of the Chief Commissioner / Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de during investigation (for commercial fraud cases as well as outright smuggling cases) or in the case of a habitual offender. (b) In case where arrest has not been made but it relates to outright smuggling of high value goods such as precious metal, restricted items or prohibited items notified under section 11 or goods notified under section 123 of the Customs Act, 1962 or foreign currency where the value of goods is ₹ 20,00,000 (Rupees twenty lakh) or more. 6.2. In a recent judgement passed by Hon ble Supreme Court of India in the case of Radhe Shyam Kejriwal [2011(266)ELT 294 (SC)], the Apex court had, interalia, observed that (i) adjudication proceedings and criminal proceedings can be launched simultaneously;(ii) decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) adjudication proceedings and criminal proceedings are independent of each other in nature and (iv) the findings against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon ble Supreme Court, it is reiterated that if the party deliberately del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the adjudication proceedings particularly in cases of technical nature or where interpretation of law is involved. One of the important considerations for deciding whether prosecution should be launched is the availability of adequate evidence. The standard of proof required in a criminal prosecution is higher as the case has to be established beyond reasonable doubt whereas the standard of proof in adjudication proceedings is decided on the basis of preponderance of probability. Therefore, even cases where demand is confirmed in adjudication proceedings, evidence collected should be weighed so as to likely meet the test of being reasonable doubt for recommending sanctioning prosecution. Decision should be taken on case- to- case basis considering various factors, such as, gravity of offence, quantum of duty evaded and the nature as well as quality of evidence collected. 7.4. It is reiterated that in order to avoid delays, Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI / adjudicating authority should indicate, at the time of passing the adjudication order itself as to whether he considers the case fit for prosecution, so that it could be further processed for launching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress of prosecution is satisfactory. 9.2. For monitoring of prosecution cases, a Prosecution Cell should be created in each Commissionerate under the supervision of Additional/Joint Commissioner. In case of Directorate of Revenue Intelligence, an Additional/ Joint Director in headquarter/each zonal unit should supervise the prosecution work relating to headquarters or respective zonal unit, as the case may be. 9.3. For keeping track of prosecution cases launched by the Commissionerate, a prosecution register in the format enclosed as Annexure-II to this Circular should be maintained in the Prosecution Cell of each Commissionerate. The register should be updated regularly and inspected by the Principal Commissioner/ Commissioner at least once in every quarter of the Financial Year. For keeping track of prosecution cases launched by DRI, prosecution register in the similar format as Annexure-II should be maintained in the Zonal Unit / Hqrs of DRI pertaining to those prosecution cases and similar regular monitoring to be carried out by ADGRI/ Pr. ADGRI concerned. 10. Appeal against Court order in case of inadequate punishment/acquittal: 10.1. Commissioner / Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be. 11.2.2. As per decision of Hon ble Supreme Court in the case of Radhe Shyam Kejriwal [2011(266) ELT 294 (SC)]: (a) the findings in the adjudication proceeding 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 (b) in case of exoneration, however, on merit where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of circumstances cannot be allowed to continue, underlying principle being the higher standard of proof in criminal cases. 11.2.3. In respect of cases covered under clause (b) above, the Chief Commissioner / Principal CC or DGRI/ Pr. DGRI would ensure moving an application through Public Prosecutor in the court for withdrawal of prosecution in accordance with law. The withdrawal can only be effected with the approval of the court. 12. Compounding of offence: Section 137 of Customs Act.1962 provides for compounding of offences by the Chief Commissioner. The provisions regarding compounding of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upload/update the information regarding prosecution initiated in the Management Information System (MIS) under prescribed Proforma. 14. Inspection of prosecution work: Director General (Inspection) and Chief Commissioners/Principal CCs, while carrying out inspection of the Commissionerates/Custom Houses, should specially check all the above mentioned points, and make a mention about implementation of the guidelines in their Inspection Reports. 15. Transitional Provisions: All cases, where sanction for prosecution is accorded after the issue of this circular, shall be dealt in accordance with the provisions of this circular irrespective of the date of the offence. Cases where prosecution has been sanctioned but no complaint has been filed before the magistrate shall also be reviewed by the prosecution sanctioning authority in light of the provisions of this circular. 16. Where a case is considered suitable for launching prosecution and where adequate evidence is forthcoming, securing conviction largely depends on the quality of investigation. It is, therefore, necessary for senior officers to take personal interest in investigations of important cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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