TMI Blog2019 (7) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... e or material available with the Revenue other than the one, which was considered by the Courts with regard to the prosecution of Respondents under Section 135 of the Act. The reason of such double jeopardy to be avoided is obvious, even though the two proceedings may operate in different fields and may have different nature. The Departmental proceeding on civil side, which is based on preponderance of probability premise based, whereas on the criminal side, it is the proof beyond the reasonable doubt, which forms the basis of conviction or acquittal, are different but the distinguishing feature to allow the two proceedings to go ahead parallely is that the different set of facts and evidence should be available before the concerned authorities proceeding in two parallel proceedings. The same principles would apply in a taxing statute like the Customs Act, 1962, also because the ingredients sought to be satisfied for imposition of penalty as well as for prosecution of the concerned accused persons is same and identically worded, as it would appear from the quotation of the two provisions. In the absence of any additional or further material with the Revenue, we do not find an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant requested for his reinstatement in service in view of his acquittal in the criminal court. This request was turned down by the respondents. The appeal filed against the respondent's decision was rejected by the appellate authority. The appellant then approached the High Court with a Writ petition challenging the validity of the order of dismissal on various grounds. In that Writ petition, he, inter alia, contended that the departmental proceedings and the criminal case against him were based on the same set of facts. The departmental proceedings should have been stayed till the outcome of the criminal case. The writ petition was allowed by a single Judge of the High Court directing the respondents to reinstate the appellant. The High Court, however, gave the liberty to the respondents to initiate fresh proceedings against the appellant after perusing the judgment passed in the criminal case. The judgment passed by a learned Single Judge was set aside by a Division Bench of the High Court in a letters patent appeal filed by the respondents. The judgment of the Division Bench was taken in appeal to the Supreme Court. The apex Court found that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused to rebut the presumption of mens rea by proving that he did not knowingly possess the forbidden goods. In the instant case, the criminal court has held that the prosecution could not prove the charge framed against the appellants by the customs authorities in terms of Section 135(1)(b), i.e., they failed to show that the appellants had physically dealt with the ball bearings with the knowledge or belief that these goods were liable to confiscation under Section 111. The court doubted the veracity of the prosecution plea that the accused had physically dealt with 1,31,076 ball bearings recovered from the ship. After examining files relating to auction sale of the confiscated ball bearings, the court found that over 21,000 ball bearings in excess of the confiscated ball bearings (1,31,076) had been auctioned by the Department, which could not be explained by the prosecution witnesses. The court pointed out many other defects of investigation and flaws of prosecution and came to the conclusion that the charge against the accused had not been proved beyond doubt. Thus, it is discernible from the criminal court's judgment that the prosecution could not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the Revenue. 4. However, the learned Standing Counsel for the Appellant/Revenue, Mr.V.Sundareswaran, submitted that the two provisions in the Act viz., 112(b) and Section 135(1)(b) of the Act, operate in different fields and have been enacted in the Customs Act, 1962, for different purposes and while Section 112 permits imposition of penalty upon the persons, who acquires possession of or in any way concerned in carrying, removing, depositing, harbouring, keeping concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe such persons are liable to confiscation under Section 111. Such persons shall be liable for penalty under Section 112(b) of the Act. He submitted that Section 135 of the Act, which provides for prosecution and imprisonment of such persons, is therefore a different provision and mere acquittal of these respondents cannot per se automatically result in the setting aside of the penalty, as the respondents in the present case had a passive knowledge of the existence of the banned goods in the vessel, which were liable to be confiscated under Section 111 of the Act. The goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding the value of the goods or five thousand rupees], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty [not exceeding the difference between the declared value and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's residence and recovery of incriminating articles therefrom, the same set of evidence in the form of the police officers and panch witnesses, who had raided the appellant's house and effected recovery and they were the only witnesses examined by the Enquiry Officer in the departmental enquiry also. In such circumstances, once the Criminal Court had acquitted the appellant, there was no basis to sustain the punishment imposed on the appellant in consequence of the departmental proceedings. 11. The reason of such double jeopardy to be avoided is obvious, even though the two proceedings may operate in different fields and may have different nature. The Departmental proceeding on civil side, which is based on preponderance of probability premise based, whereas on the criminal side, it is the proof beyond the reasonable doubt, which forms the basis of conviction or acquittal, are different but the distinguishing feature to allow the two proceedings to go ahead parallely is that the different set of facts and evidence should be available before the concerned authorities proceeding in two parallel proceedings. The same principles would apply in a taxing statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear; to avoid the double jeopardy or double whammy of the accused persons or Assessees on the same set of facts and evidences. Therefore, unless the prosecution or the Revenue can point out the different set of facts or evidence available with them to sustain and segregate one proceedings on the another, the law laid down by the Hon'ble Supreme Court in Capt.M. Paul Anthony's case will squarely apply to the facts of the present case also. 14.We do not find any such support from the previous view of the learned Single Judge or even the Division Bench of this Court in the case of K.Renganathan (supra). The said later view of the Division Bench of this Court in K.Renganathan's case by a short order proceeded on the basis of admission of the concerned Assessee or accused persons before the statutory authorities on the basis of which, the penalty in question appears to have been sustained by the Division Bench of this Court, even though for lack of evidence, the criminal court had acquitted such persons. Here, we find, in distinction, a full discussion by the Criminal Court on the entire relevant evidence and then acquittal of these accused res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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