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TMI Blog2017 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and adapters, 400 pieces of 8 M.B. RAM, 100 pieces of MPO cooler with leads, all of foreign origin and empty card board cartons of mobile phones bearing marking as Nokia and Siemens. The above goods valued at Rs. 1,05,20,000/- were seized since Mahender Goyal had not produced any evidence of legal possession/import of the same. In his statement dated 1st September, 1997 Mahender Goyal admitted that he started carrying mobile phones and computer parts from Kathmandu to Delhi for the last one month on the directions of Vijay Saxena and that Vijay Saxena gave him 3 pieces of baggage to carry to Delhi; that he was to deliver the same to one Tony who had a shop by the name M/s Gift Palace in the Municipal Market, Karol Bagh. On 2nd September, 1997, he further stated that on reaching Customs arrival hall in Varanasi from Kathmandu, he gave the Customs clearance card (portion of the disembarkation card) to Arvind Kumar, the respondent herein who stamped the same; he paid Rs. 30,000/- to him for customs clearance and had not obtained any receipt for it. Enquiries from the office of the Air Customs, Varanasi showed that the respondent was on duty as Air Customs Officer on 1st September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17.8.97 and 24.8.97, both B.B. Singh and the appellant helped them in the Customs hall. In view of the implication of the appellant only in the second statement, it was necessary to test veracity of his statements by cross-examination. But crossexamination has not taken place for the reason that Rakesh Kumar was not present. We fail to understand the finding of the Commissioner that Rakesh Kumar could not be cross-examined as he was not presented. It is the duty of the Customs authorities to present witnesses for cross-examination, if the request is allowed. On an analysis of the statement of Raj Kumar Singhal, we find that in his statement dated 2.9.97, he has initially stated that he did not know the Customs Officer, who cleared him and his companion, Rakesh Kumar along with the consignment of mobile phones when they returned from Kathmandu on 25.8.97 because all the handling was done by Rakesh Kumar that he did not know the name of the officer posted at Benaras Airport who cleared him along with his consignment when he arrived from Kathmandu on 1.9.97. He has also stated that Rakesh Kumar had told him that on arrival in Varanasi on 1.9.97, he should go to the officer who had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showed that either the Spl.PP was only interested in taking adjournments or does not brief his juniors and that arguments on the said application had been heard earlier and if the proceedings were conducted in such a manner, the Court would not entertain the juniors of the Spl.PP. Adjourning the hearing on the application under Section 245(2) Cr.P.C., a copy of the order was sent to the Commissioner, Customs. 6. Vide the impugned order dated 21st December, 2009, considering the reply to the application and the written submissions filed by the petitioner, learned ACMM held that the order of the Appellate Tribunal had been accepted by the Commissioner of Customs and in view of decision of this Court reported as (2007) 145 DLT 612 Sunil Gulati Vs. R.K. Vohra, the respondent having been exonerated in the adjudication proceedings, the proceedings against him for criminal prosecution could not continue as the standard of proof was lesser in the adjudication proceedings. Hence, accepting the application of the respondent under Section 245(2) Cr.P.C., the proceedings against him were dropped. 7. Learned counsel for the petitioner contends that relying upon the decision in Sunil Gulati ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court." 10. The law laid down in Radheshyam Kejriwal (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal case, no case is made out against the accused even if taken on the face value. 14. Further present is not a case where the respondent was exonerated in departmental inquiry proceedings but in adjudication proceedings for levying penalty under Section 112(B) of the Customs Act, 1962 by the Appellate Tribunal which is a quasi-criminal adjudicatory authority. Further the Appellate Tribunal set aside the penalty after examining the witnesses and not on technical grounds. Following the decision in Radheshyam Kejriwal (supra) the Supreme Court in the decision reported as (2016) 4 SCC 153 Air Customs Officer IGI, New Delhi Vs. Pramod Kumar Dhamija held that exoneration of the respondent therein in the adjudication proceedings was not on merits nor that he was found completely innocent. As noted above, in the present case though some witnesses were not cross-examined even without presenting the witnesses for cross-examination, it was found out that their statements did not implicate the respondent and at best the allegations against him were in the realm of suspicion which could not reach the pedestal of proof beyond reasonable doubt. Hence, this Court finds no infirmity in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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