SURKHI LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Sections 482 Cr.P.C. seeks quashing of proceedings against the petitioner in the case titled Shri Mahendra, IO, DRI vs. Karim Yusuf & Ors. pending in the court of ACMM, New Delhi for offence punishable under Sections 120-B IPC read with Section 135 of the Customs Act, 1962 and Section 85 of the Gold Control Act, 1968. The petitioner, Surkhi Lal, is one of the five accused in the case. Accused Karim Yusuf @ Sunil is absconding whereas accused Durga Dass Sharma is dead. The accused now facing trial are Ravinder Bali, Satya Narain Aggarwal and the present petitioner. In the morning of 19.4.1996 at around 10.30, accused No.2, Ravinder Bali, was found driving a scooter with accused No.1, Karim Yusuf, sitting on the pillion holding two canvas bags. The scooter was intercepted and on search 250 gold biscuits of foreign markings valuing Rs.62.5 lakhs approximately were recovered and seized under the Customs Act, 1962 and Gold Control Act, 1968 on the plea that the same were smuggled and are liable to be confiscated. During search from the premises of accused No.2, currency notes amounting to Rs.29.63 lakhs and certain other recoveries were made. Following disclosure by accused Nos.1 & 2 the house of Satya Narayan Aggarwal was also searched and Indian currency notes amounting to Rs.6,77,750/- and ten smuggled gold biscuits valuing Rs.2.5 lakhs and certain other documents were also seized. About accused Nos.4 & 5 it was alleged in the complaint that they were knowingly concerned in fraudulent evasion of the prohibitions imposed in the importation of the gold into India by Section 14 of the Foreign Exchange Regulation Act, 1973 and had committed offence punishable under Section 135 of the Customs Act. There was, however, no evidence against the petitioner of any kind. No evidence against the petitioner was mentioned in the order sanctioning prosecution. The show cause notice was adjudicated by Shri Sidharth Kak, Commissioner of Customs, who passed an order dated 31.3.1992 examining the facts. He found that 260 foreign marked gold biscuits were smuggled into India from village Passur, Jammu border by Musataq and handed over to Pt. Durga Dass Sharma or his son Surkhi Lal who sent their carrier for delivering the same to Karim Yusuf at the residence of Ravinder Bali. Sidharth Kak imposed a penalty of Rs.1 lakh upon the petitioner under the Customs Act, 1962 and Rs.l lakh under the Gold Control Act, 1968. The petitioner then preferred an appeal before the Customs, Excise and Gold (Control) . Appellate Tribunal (in short CEGAT), New Delhi being appeal No.C-1547/92-NBand G-1/93-NB being two appeals under the Customs Act and Gold Control Act. CEGAT set aside the order of Sidarth kak and passed the following order:

(2.) After receipt of the order the petitioner applied to ACMM, New Delhi for dropping the proceedings. The ACMM, however, declined the prayer and hence the present petition with the prayer to quash the proceedings against the petitioner in the afore-mentioned criminal complaint on the ground that the continuation of those proceedings is an abuse of the process of law. The prayer is vehemently opposed by the prosecution. It is contended that the decision in the adjudication proceedings cannot be a bar to the criminal prosecution. Both sides have relied upon the number of judgments of the Supreme Court and various High Courts in support of their respective contentions.

(3.) After hearing the counsels and examining the judgments of the Supreme Court and various High Courts, particularly that of this court, I am of the opinion that the petitioner's contention has force. To understand the development of the law on the subject, the chronological restatement of the judgments cited can be made. The earliest in point of time is the judgment in the case of The Assistant Collector of Customs, Bombay and another Vs. L.R.Melwani and another reported as AIR 1970 SC 962, which was a case under the Sea Customs Act, 1878. The point raised before the Supreme Court in that case was primarily related to protection under Article 20(2) of the Constitution and Section 403 of the Code of Criminal Procedure, 1898. It was found that the bar did not apply to cases where the accused had only been given relief in departmental adjudication because such adjudication did not actually amount to trial by a criminal court and acquittal by the same. The conclusion of the court was that the criminal prosecution of the accused for alleged smuggling was not barred merely because the proceedings were earlier instituted against him before the Collector of Customs. Adjudication before the Collector of Customs was not a prosecution nor the Collector of Customs was a court and, therefore, the rule of autre fois acquit could not be invoked. In that case the accused had been given benefit of doubt in the earlier proceedings of the Collector of Customs and it was held that it did not amount to verdict of acquittal in favour of accused. Accordingly despite the departmental adjudication having ended in favour of the accused the prosecution was allowed to continue.