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TMI Blog2019 (7) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... court's judgment. This question has been agitated before us on the strength of a plethora of decisions. In the case of Capt.M.Paul Anthony (supra), the appellant was a security officer in the respondent-company, a government undertaking. He was placed under suspension and disciplinary as well as criminal proceedings were initiated against him on the ground that, in a police raid, mining sponge gold ball weighing 4.5 grams and 1276 grams of gold-bearing sand were recovered from his house. The raid was conducted at the appellant's residence on 2.6.85. He was placed under suspension on 3.6.85. Disciplinary proceedings were initiated against him by issuing a charge sheet on 4.6.85. On 3.2.87, the appellant was acquitted in the criminal case with a categorical finding that the prosecution had failed to establish that "raid and recovery" were made at the appellant's residence. In the meantime, the appellant had already been dismissed from service on the basis of disciplinary proceedings initiated against him. On 12.2.1987, the appellant requested for his reinstatement in service in view of his acquittal in the criminal court. This request was turned down by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the offence charged against him. The evidence adduced by the accused should be enough to make the court believe beyond reasonable doubt that he had no such culpable mental state. What the apex Court held in the Gopaldas' case was that, where the presumption under Section 98 B of the Gold (Control) Act was rebutted by the accused, the order of confiscation of gold by the adjudicating authority under the said Act could not be allowed to stand against the order passed by the criminal court acquitting the accused after considering the same set of facts and evidences. But, at what stage was the accused to rebut the presumption? This question was also answered by the court in Gopaldas' case following its earlier decision in Inder Sain vs State of Punjab, (1973) 2 SCC 372. It was held (vide para 18 & 19 of Gopaldas), on the facts of that case, that, once the prosecution adduced evidence of the accused having been in possession of primary gold, it was upto the accused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that the judicial approach taken in Paul Anthony's and Gopaldas' cases can be applied to this case and, accordingly, the order passed by the adjudicating authority imposing penalties on the appellants cannot stand in the face of their acquittal by the criminal court." 3. Mr.B.Satish Sundar, learned counsel for the respondents/accused persons has submitted that the acquittal of the criminal Court of these respondents has been affirmed by the High Court by dismissal of the Criminal Appeal filed by the Revenue viz., Crl. Appeal (MD) No.1730 of 2002, The Assistant Collector of Customs vs S.Saravana Perumal @ Saravanan and others on 13.04.2010 and thus, the acquittal of the respondents/accused persons have become final at the hands of this Court. He submitted that the penalty set aside by the learned Tribunal does not require any interference of this Court in the present 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd deserves to be dismissed. The reasons are as follows. 8. The ingredients or for imposition of penalty under Section 112(b) of the Act as well as for launching of prosecution against the accused persons under Section 135(1b) of the Act are identically worded. To quoted below, both the provisions itself are relevant to extract. "112.Penalty for improper importation of goods, etc. ..(b) who acquires possession of or is 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 are liable to confiscation under Section 111, shall be liable,- (i) in the case of goods in respect of which any prohibition 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 determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue could not point out any additional evidence 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. 10. The Hon'ble Supreme Court in the case of Capt. M. Paul Anthony vs Bharat Gold Manes Ltd., 1999(3) SCC 679, dealing with the similar situation in service law held that where the criminal case as also the departmental disciplinary proceedings were based on identical set of facts and evidence viz., the raid conducted at the appellant'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 112 of the Act and then prosecution under Section 135 of the Act coming after that also has a chronological meaning arising out of that. While two proceedings can be undertaken one after the another or even simultaneously but nonetheless, there is no provision in the Act, which permits the Authorities to impose and sustain the penalty under Section 112 of the Act, notwithstanding the acquittal in the prosecution proceedings under Section 135 of the Act. The purpose, as stated above is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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