TMI Blog2007 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... 135(1)(b) of the Customs Act, 1962. 3. Petitioner filed an application before the learned ACMM praying that the proceedings against him emanating out of the afore-noted complaint be dropped which application has been dismissed by the learned ACMM vide order dated 15-3-2005. 4. In these circumstances, the petitioner has approached this Court under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the complaint as also order dated 15-3-2005. However in view of the legal position that the learned ACMM cannot recall the order summoning an accused matter was heard with reference to whether in view of order dated 23-4-2003 [2003 (160) E.L.T. 295 (Tri.-Del.)] passed by CEGAT setting aside the penalty levied vide order dated 29-6-2001, order of CEGAT having attained finality, was the complaint liable to be quashed. 5. The brief facts which emerge from the reading of the complaint are the following :- (i) On 24-4-2000, the officers of the Customs (Preventive) conducted a search at the premises bearing No. T-7, (1st Floor), DCM Road, Kishan Ganj, Delhi. At the time of the search, petitioner and one Mr. Mohd. Sohail were present in the said premises. (ii) Upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also present in that very room from where the goods were seized. That being so, it could not be said that the seized goods were recovered from the possession of the appellant alone. Rather legally, the recovery was in fact effected from the joint possession of them. But strange enough, Mohd. Sohail had been let off, after simply recording his statement without holding any further enquiry about his nature of the possession of the premises. Even the nature of the possession of the appellant in the premises from where the goods were seized had not been enquired into. There is nothing on the record to suggest if the possession of the appellant of the premises was a tenant or licencee and under whom. The ownership of the premise as observed above, had not been ascertained during the course of investigation. 4. Apart from this, the seized goods (at that time) were not prohibited goods in terms of Section 123 of Chapter IVA of the Customs Act. They were freely marketable and available for sale and purchase in the market. The fact that the goods carried the name of foreign countries such as Japan and Korea was not sufficient to raise legal presumption about the smuggled character of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot binding on this court and that the prosecution in a criminal case is to be determined on its own merits as per law uninhibited by the finding of the Tribunal. Thus, the accused cannot be discharged only because of the reason that he has been exonerated in departmental proceedings." 9. In support of the petition, learned counsel for the petitioner contended that the reasons given by the ACMM that in all cases irrespective of exoneration in adjudication proceedings, the criminal proceedings would continue is not correct. That the judgment of the Andhra Pradesh High Court in Neelakantha's case (supra) which has formed the basis of the judgment of the ACMM has been disagreed to by a learned Single Judge of this court in the decision reported as Sunil Gulati v. R.K. Vohra - 2007 (1) JCC 220. That with the exoneration of the petitioner in adjudication proceedings, the foundation for continuing the prosecution in the criminal complaint no longer exists for the reason adjudication proceedings and criminal prosecution are based on same set of facts/allegations. Reliance was also placed upon under-noted judgments :- (i) P.S. Raja v. State of Bihar - 1996 SCC (Crl.) 897 (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence. 4. In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the offence alleged against him and the prosecution case found totally false with positive finding that the accused did not commit the offence in question and acquitted not on account of benefit of doubt or appreciation of evidence including lack of sufficient evidence or lack of sanction for prosecution or on any other technical grounds he may be reinstated back in service with other consequential benefit including arrears of salary or other pensionary benefit admissible to him if retired earlier by treating him in service but in other situation where the acquittal is based on benefit of doubt or appreciation of evidence including lack of sufficient evidence or lack of sanction for prosecution or any other technical ground, disciplinary enquiry pending against such Government or public servant cannot be concluded, rather it would be appropriate that the departmental authority may continue with the disciplinary inquiry or hold fresh enquiry in respect of the mis-conduct, which was foundation of criminal case ended in acquittal against such Government servant. If disciplinary inquiry has already been concluded and major punishment, as envisaged under Article 311 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulled out is that an 'acquittal on merits' is an acquittal after trial on a consideration of the facts duly proved as per rules of evidence as distinguished from the acquittals occurring due to technical defects such as want of sanction, fact not proved as rule of evidence not followed, benefit of doubt etc. To put it differently, an acquittal is said to be on merits when it is based on a positive finding of innocence of the accused. 17. In the backdrop of the legal position, it has to be seen in the instant case whether exoneration of the petitioner by the adjudicating authority passes the test of exoneration on merits. 18. It is not in dispute that both the proceedings, i.e. criminal and adjudication are based upon the same set of facts/allegations. 19. A perusal of the order of the CEGAT shows that the petitioner was exonerated because of following reasons :- (i) Department has not been able to establish the ownership of the searched premises. (ii) The initial burden was on the department to prove the smuggled character of the goods and department failed to discharge the same. (iii) Department failed to prove the alleged confessional statement of the petitioner unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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