TMI Blog1987 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise department raided the premises bearing Nos. 104 and 126 South street, Madras 23, and seized 245 kgs. and 249 kgs. of cloves belonging to the petitioner on entertaining a reasonable belief that the said cloves have been illegally imported into India. For the show cause notice dated 7th August 1973 issued to the petitioner, a reply was sent on 18th October 1973, stating that the cloves were purchased from one Kusal Ray who in turn purchased the same in the auction held by the Central Excise department at Nagapattinam under Customs Receipt No. 90, dated 20th July 1964. In the same reply, it was further stated that the statement already given by the petitioner at the time of inspection should not be relied upon as it was taken under thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel, in addition to the confiscation and levy of personal penalty, the department prosecuted the petitioner in criminal court and the petitioner was acquitted on merits by the Criminal Court. The order of acquittal was further confirmed on appeal by the Department by this Court in Cr. Ap 860 of 1978. The learned counsel relied on the finding given by this Court in the said criminal appeal to the effect that 'There is prima facie evidence that the cloves were purchased from the auction purchaser in an open auction. In the light of the acquittal on the same facts, the order of confiscation and levy of personal penalty cannot be sustained as held by this Court in the judgment reported in 1981-2-MLJ 405 (cited supra), is the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not factually given the option as contemplated under Section 125 of the Act. 5. Let me consider the merits and demerits of the rival contentions. Nainar Sundaram J. in the decision cited above namely, 1981-2-MLJ 405 (cited supra) has held under similar circumstances as follows :- "Ananthanarayanan Offg. Chief Justice, in Shaikh Kasim v. Superintendent of Post Offices, following the judgment of the Bench of this Court in D'Silva v. Regional Transport Authority held that where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for disciplinary Tribunal to record a finding of guilt, and to punish thereon and this court in exercise of the jurisdiction under Article 226 of the Constitution would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 135(b) has resulted in an acquittal by virtue of the judgment of this Court in CA-389 of 1973. Counsel emphasised that the working of Section 112(b) and 135(b) are identical and that, therefore, the ingredients of the offence, if the misconduct or the act of the appellant can be termed as such, are the same and if it is not established for one purpose, namely, under Section 135(b), it cannot be said to be established for the other purpose under Section 112(b). The argument is certainly interesting and somewhat attractive. But we have to bear in mind that the Act contemplates two separate proceedings for the same act or omission and it is not contended that these two cannot be taken simultaneously, and there is no question of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was not given reasonable and full opportunity is not acceptable as it is seen from the orders of the first Authority and the Appellate Authority that ample and adequate opportunities were given to the petitioner through his counsel to put forward the defence. 8. On the other point, namely, that the Authority has failed to give the option as contemplated under Section 125 of the Customs Act, I find force in the argument of the learned counsel for the petitioner. Section 125 of the Act reads as follows :- "125(1). Whenever confiscation of any goods is authorised by this Act, the officer adjuding it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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