TMI Blog2018 (10) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-a-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Code of Criminal Procedure or Section 151 Code of Civil Procedure cannot and should not be resorted to. This petition is not maintainable and hence, the same is liable to be dismissed - petition dismissed. - Crl.O.P.No.2559 of 2013 And M.P.Nos.1 and 2 of 2013 - - - Dated:- 28-9-2018 - Mr. P. Rajamanickam J. For the Petitioner : Mr. R. Tyagarajan, Senior counsel for Mr. A. Ganesh For the Respondent : Mr. N. P. Kumar Spl. Public Prosecutor for Customs ORDER This petition has been filed by the Accused No.1 u/s.482 Cr.P.C., to quash the proceedings against him in C.C.No.11 of 2012 on the file of the Additional Chief Metropolitan Magistrate, EOI, Egmore, Chennai-8. 2. The facts are, in brief, as follows: The respondent herein has filed a complaint against the petitioner herein and two others to punish them for the offences punishable under Sections 132 and 135 of the Customs Act, 1962 (hereinafter ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential Commodity Act, 1955. Thus in all the 375 MTS of 'MOP', with an FOB value of ₹ 82,83,633/- (as per the concerned shipping bills) and market value of ₹ 1,34,40,000/- were attempted to be smuggled out of India by the exporter by way of mis-declaration and hence the accused persons are liable to be punished under Sections 132 and 135 of the Customs Act, 1962 as amended r/w. Fertilizers Control Order, 1985 under the Essential Commodity Act, 1955. 5. Heard Mr.R.Tyagarajan, learned senior counsel for Mr.A.Ganesh appearing for the petitioner and Mr.N.P.Kumar, learned Special Public Prosecutor for Customs/respondent. 6. The learned senior counsel for the petitioner has submitted that the respondent herein has filed a complaint based on the sanction order issued by the Commissioner of Customs dated 07.06.2011 and the said sanction order itself was issued based on the order passed by the adjudicating authority dated 29.03.2011 confiscating the goods. He further submitted that as against the order passed by the adjudicating authority, the petitioner herein has filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon the decision of this court in M/s.Together Textile Mills represented by its partners viz., Shivananda B. Shetty and Others Vs. The Deputy Commissioner of Central Excise (Crl.OP.No35264 of 2005 dated 13.12.2006) has submitted that even if the matter is remanded back to the Commissioner by the Appellate Tribunal, the prosecution cannot be allowed to continue. In that case, the original order of adjudication was set aside by the Appellate Tribunal and the matter was remanded back to the Commissioner and at that stage, this court has quashed the criminal proceedings by observing that in the event of the Commissioner coming to a positive conclusion, thereafter a fresh criminal proceedings can be initiated. But in this case, as already pointed out that after remand, the Commissioner of Customs has passed Denovo Adjudication Order on 01.04.2014, wherein, he has confirmed the earlier order. As against the same, an appeal was filed and the said appeal was dismissed and therefore, at this stage, the petitioner cannot rely upon the aforesaid decision. 9. In the case of G.L. Didwania and another Vs. Income Tax Officer and another (supra), the prosecution was launched agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against the said order, the petitioner herein has filed CMA.No.925 of 2015, wherein this court by the order dated 21.04.2015 has modified the Appellate Tribunal's order by reducing the amount from ₹ 10,00,000/- to ₹ 5,00,000/- to comply within a period of eight weeks. The petitioner herein has not complied with the said order and hence, the Appellate Tribunal has dismissed the appeal by the order dated 01.07.2015. So, it is clear that the original confiscation order passed by the Adjudicating Authority has been restored and therefore, there is no bar for continuation of prosecution. 12. The Hon'ble Supreme Court in AIR Customs Officer IGI New Delhi Vs. Pramod Kumar Damija (supra) has observed in paragraph No.7 as follows: 7. The exoneration in related adjudication proceedings and the effect thereof on criminal proceedings again came up for consideration before a three-Judge Bench of this Court in Radheshyam Kejriwal v. State of West Bengal and Another [3]. 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 adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the dismissal of his discharge petition. On the contrary, he has filed the present petition u/s.482 of Cr.P.C., Even in this petition, he has not challenged the order passed by the trial court in the discharge petition. On the contrary, in this petition, he has challenged the very launching of the prosecution. 14. The learned senior counsel for the petitioner has submitted that the petitioner need not file revision against the dismissal of the discharge petition and he can straight away file petition u/s.482 of Cr.P.C., to quash the criminal proceedings. In support of the said contention, he relied upon the following decisions: 1) Krishnan and another Vs. Krishnaveni and another (1997) 4 SCC 241 2) Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and others (1198) 5 SCC 749. 3) G. Sagar suri and another vs. State of U.P. And Others (2000) 2 SCC 636 15. Learned Special Public prosecutor, on the contrary, has submitted that since the dismissal of the discharge petition is not an interlocutory order, certainly the said order is a revisable one and as such, the petitioner ought to have filed a revision and when an alternative remedy is availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still he must undergo the agony of criminal trial. But in this case, as already pointed out that the discharge petition filed by the petitioner was dismissed by the trial court and challenging the same, he has not filed any criminal revision. Therefore, the aforesaid decision also will not apply to the facts of this case. 18. It is no doubt that the dismissal order passed by the trial court in the discharge petition filed by the petitioner is not an interlocutory order and as such, it is a revisable order but, the petitioner has not filed any revision. At this juncture, it would be relevant to refer the decision in Mohit alias Sonu and Another Vs. State of U.P and Another (Crl.A.814 of 2013) dated 01.07.2013 wherein the Hon'ble Supreme Court in paragraph Nos.23 to 27 has observed as follows: 23. So far as the inherent power of the High Court as contained in Section 482 of Code of Criminal Procedure is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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