TMI Blog2021 (5) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings are very much relevant and germane in the matter of prosecution of the Accused nos.1 and 2 on the same set of material in the criminal trial. What can be noticed from the observations made by the Commissioner and thereafter the Appellate Tribunal is the Accused nos. 1 and 2 were exonerated in the adjudication proceedings on merits as the allegations against them of dereliction of duty or acting in an illegal manner were not established. It could be noticed that once the contravention of the provisions of the act by the Accused nos. 1 and 2 in the adjudication proceedings was not established, it has to be inferred that the prosecution of the Accused nos.1 and 2 under the provisions of the Prevention of Corruption Act particularly having regard to the non-satisfaction of necessary ingredients of Section 13(1)(d) of the Act cannot be held to be satisfied. The claim of the Applicant that there is a miscarriage of justice and as the offence under the Prevention of Corruption Act and the adjudication by the competent authority are parallel and cannot go hand in hand, is liable to be rejected - Once the order passed in the adjudication proceedings is not questioned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept for, in four cartoons which were verified by the Accused nos. 1 and 2. As such, it is noticed that the pieces described by the exporter i.e. Accused no.3 onwards in the declaration as ladies nightwear , were in fact pieces of cloths irregular in shape and in any case cannot be described as ladies nightwear and, as such, were not qualifying the eligibility of the DEPB benefits referred above. 6. As such, an investigation was carried out in the matter in which it was revealed that the manufacturer and the exporter i.e. Accused no.4 onwards, made an attempt to export under four shipping bill nos.2952 to 2955 dated 17.03.2004. The Accused nos. 1 and 2 abused their official position in the capacity of public servant by conniving with Accused nos. 3 to 6 and has signed ARE-2 forms and other documents for Accused nos. 4 and 5. As such, the allegations are, an attempt was made to export subAndreza standard material without issuance of CT- 1 form and without issuance of Modal Examination order by the Jurisdictional Assistant/Deputy Commissioner. 7. In the aforesaid background, the Commissioner of Customs, Hyderabad, in adjudication proceedings arising out of the aforesaid ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed B1 bond and the exporter i.e. Accused no.3 has not furnished any such bond. No permission was obtained from the jurisdictional Assistant/Commissioner for stuffing the container. 11. As such, the submissions are, the prescribed legal procedures for exporting the goods and certification thereof, by the Accused nos. 1 and 2 was not adhered to. It is further claimed that the Accused nos. 1 and 2, did not check the 5% of the export consignment, as a consequence intentional latitude was shown to the exporter so as to facilitate export of rags, instead of the materials for which the license was obtained. 12. In the aforesaid background, it is claimed that by ordering discharge of the Accused nos.1 and 2 for an offence punishable under the provisions of Prevention of Corruption Act, miscarriage of justice is caused. It is further claimed that the exoneration of Accused nos. 1 and 2 by the Appellate Tribunal is overlooking the aforesaid serious default on the part of the Accused nos.1 and 2 and, as such, the said order of exoneration is contrary to the settled provisions of law. As such, it is alleged that said order ought not to have been relied upon by the Courts below. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1988 read with Section 15 hereinafter shall be referred to as the punishing Section. Section 13(1)(d) provides for an offence by a public servant of criminal misconduct, i.e. if such public servant by corrupt or by illegal means, obtains for himself or for other person any valuable thing or pecuniary advantage or by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or a pecuniary advantage without any public interest. Section 15 of the said Act provides for a punishment or attempt to commit an offence under Section 13(1)(d) of the Act. 17. As such, it is incumbent on the part of the Applicant to demonstrate that the Accused no.1 had obtained for themselves or for any other person any valuable thing or pecuniary advantage by misusing the official position and such misuse should be demonstrated to be by corrupt or illegal means. 18. The factual aspect as to the adjudication order passed by the Commissioner of Customs and Central Excise on 04.07.2005 with a specific finding on the role of the departmental of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and the benefit has to be given to the officers. The Appellate Tribunal, as such, has proceeded to observe that the penalty ordered against the Accused nos.1 and 2 is not sustainable with an observation that the Accused nos. 1 and 2 have not done or have omitted to do any act, which act or omission would render such goods liable to confiscation nor they have abetted in doing or any omission of such act which shall attract provisions of imposing penalty on them. 20. As such, this Court is required to be sensitive to the observations of the Commissioner of Customs in the order of adjudication that the act of the Accused nos. 1 and 2 as has been looked into in the adjudication proceedings, was not proved to be, for some extraneous considerations. Apart from above, while setting aside the order of penalty to be paid by the Accused nos. 1 and 2, the Appellate Tribunal has in categorical terms made an observation that the act of the Accused nos.1 and 2 cannot be said to be an act of omission or otherwise, which would render such goods for confiscation. It is also observed that the Accused nos. 1 and 2 have not abetted in doing or any omission of such act. 21. It can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution. 25. Applying the aforesaid principles to the case in hand, it could be noticed that once the contravention of the provisions of the act by the Accused nos. 1 and 2 in the adjudication proceedings was not established, it has to be inferred that the prosecution of the Accused nos.1 and 2 under the provisions of the Prevention of Corruption Act particularly having regard to the non-satisfaction of necessary ingredients of Section 13(1)(d) of the Act cannot be held to be satisfied. 26. The observations of the Apex Court in the matter of Radheshyam Kej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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