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TMI Blog2019 (3) TMI 1875X X X X Extracts X X X X X X X X Extracts X X X X ..... ts entered for exports vide three shipping bills were seized in June 2009 and it was noticed that SLN had exported under DFIA scrips, 21 shipments [vide 50 shipping bills] of garments with total declared FOB value of US$ 3,461,952 equivalent to Rs. 16,07,44,035/- during the period from August 2007 to May 2009 through New Mangalore Port to Jebel Ali/Dubai. The fraudulently obtained scrips thus permitted duty free import of inputs [corduroy fabric] of total CIF value of US$ 2,969,769, equivalent to Rs. 13,65,32,196/-. A show cause notice bearing DRIF No. S/IV/06/2009 dated 20.11.2009 was issued to the petitioner, amongst others, alleging infraction of the Customs Act, 1962 ['Act', for short] in respect of goods exported under three shipping bills, proposing penal action, inter alia, against the petitioner. Petitioner submitted a reply and on adjudication, penalty of Rs. 13,00,000/- was imposed on the petitioner under section 114[iii] of the Act. In the same investigation, another show cause notice bearing F. No. DRI/S/IV/14/2009 [MRU]/1640/10 dated 2.11.2010 was issued to the petitioner in respect of goods exported under 50 shipping bills. In the show cause notice, it was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set of facts and circumstances cannot be allowed to continue, the underlying principle being 'higher standard of proof' in criminal cases. Further, placing reliance on the decision of the Constitution Bench in 'HARICHARAN KURMI v. STATE OF BIHAR' reported in : AIR 1964 SC 1184, learned counsel would contend that even on merits, prosecution of the petitioner is sought to be substantiated solely on the basis of confession of the co-accused. Courts have consistently held that confession of co-accused cannot be considered as offence of substantive nature against co-accused person. It is the submission of the learned counsel that, barring the alleged confession statement of Accused No. 1, no other material is available to substantiate the charges levelled against the petitioner and moreover, petitioner having been prosecuted on the allegations which are already adjudicated by the competent authority and having been found false and baseless, prosecution of the petitioner is wholly illegal and amounts to abuse of process of court. In support of this submission, learned counsel for the petitioner has referred to the factual findings noted by the CESTAT and has sought for q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in : 2006 CRI. L.J. 1922. 6. Further, placing reliance on the decision of the Hon'ble Supreme Court in 'PARBATBHAI AAHIR ALIAS PARBATBHAI BHIMSINHBHAI KARMUR AND OTHERS v. STATE OF GUJARAT AND ANOTHER' reported in : AIR 2017 SC 4843, learned counsel has emphasized that petitioner is involved in commission of criminal offences affecting the financial and economic well being of the State. Implications of the act of the petitioner lie beyond the domain of mere dispute between private disputants and hence this Court would not be justified in quashing the proceedings where the acts committed by the petitioner amount to financial or economic fraud or misdemeanor. With regard to the evidentiary value of the statement of co-accused, learned counsel has referred to the decision of the Hon'ble Supreme Court in 'NARESH J. SUKHAWANI v. UNION OF INDIA' reported in 1995 Supp [4] SCC 663 and with reference to paragraph-4 thereof has reiterated that statement recorded by Customs officials stands on a different footing. A statement made before the Customs officials is not a statement recorded under section 161 of Cr.P.C.; it is a material piece of evidence collected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the respondent, the Tribunal held that no material was available against the present appellant in proof of the charges leveled against him. Insofar as confessional statement relied on by the prosecution in support of the accusations leveled against the petitioner, the Tribunal has observed in paragraph-5 of the aforesaid order that a specific query was raised from the Bench as to whether barring the confessions of co-accused Sri. Suresh Prabhu and Sri. Feroze Khan, was there any documentary evidence or any other independent evidence against the petitioner to establish any link of the petitioner to the entities to establish his role of abetting in fraudulent exports by SLN and the learned Departmental Representative could not show from records any such evidence. 9. Thus, the Tribunal was of the opinion that there was absolute lack of material tangible evidence against the petitioner and whatever documentary evidence collected by the Department did not conclusively link the petitioner to the alleged offence. The Tribunal was of the opinion that solely on the basis of uncorroborated confession of the co-accused, petitioner cannot be found guilty of the alleged offences and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned in the adjudication proceeding is on merits. As discussed above, adjudication proceedings were initiated against petitioner on the same set of facts and circumstances as alleged in the complaint leading to prosecution of the petitioner. The said allegations are sought to be substantiated on the very same set of material and evidence. Even before the adjudicating authority as well as in the prosecution launched against the petitioner, respondent has mainly relied on confession of co-accused as a material and substantive piece of evidence, to substantiate the charges framed against petitioner. All other material produced by the respondents do not connect the petitioner to the alleged offence. Under the above circumstances, adjudicating authority having recorded clear findings based on merits, in my view, the principles laid down in the above case can be squarely applied to facts of the present case. Since the petitioner is exonerated on merits on the very same set of facts and is held innocent by the adjudicating authority, in my view, criminal prosecution on the same set of facts and circumstances, cannot be allowed to be continued, on the underlying principle of 'higher s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of India. 13. As against the said decision, learned counsel for petitioner has placed reliance on the Constitution Bench decision of the Hon'ble Supreme Court in HARICHARAN KURMI's case [supra]. In the said case, the question about the part which a confession made by a co-accused person can play in a criminal trial came up for consideration of Full Court in the light of Section 30 of Indian Evidence Act, 1872. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. In paragraph-12 of the said Judgment, the Hon'ble Supreme Court has observed as under: "As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh : 1952 SCR 526: [AIR 1952 SC 159] where the decision of the Privy Council in Bhuboni Sahu's Case, : 76 Ind. Appellant 147 [AIR 1949 Police Constable 257] case has been cited with approval." 14. In the light of the authoritative pronouncement of the Hon'ble Supreme Court in the above decision, I need not strain the judgment wi ..... 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