GAUTAM BHUPENDRABHAI PARIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioners to quash and set aside the impugned criminal proceedings/Criminal Complaint, being Criminal Case No. 127/2008 dated 28/01/2008 filed by respondent no. 2-original complainant against the petitioners in the Court of learned Judicial Magistrate First Class, Rajpipla for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995.

(2.) THE facts leading to the present Special Criminal Application in a nutshell are as under;

(3.) UNDER the circumstances, when the petitioners have been exonerated in a statutory appeal by the appellate authority and the demand notice for which the impugned Complaint is filed has been quashed and set aside, to continue the criminal proceedings against the petitioners would be unnecessary harassment to them. When the department has failed to substantiate their claim of unpaid duty for which the impugned Complaint has been filed, the department will not be in a position to prove the case against the petitioners for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 and Sections 182 and 114 of the Indian Penal Code, which was for non-payment of unpaid duty, before the criminal Court in which as held by the Hon'ble Supreme Court in catena of decisions standard of proof will be higher. It is required to be noted that the appellate authority has not quashed and set aside the demand on technical ground and/or for want of evidence. If the decision of the appellate authority quashing and setting aside the demand was on the technical ground and/or for want of evidence, the position would have been different and in that case the department can prove the case against the petitioners-accused persons by leading further evidence. That is not the case here. The department has failed before the appellate authority on merits and the demand of unpaid duty has been quashed and set aside on merits. UNDER the circumstances, to continue the criminal proceedings against the petitioners with respect to non-payment of unpaid duty, which has been set aside by the appellate authority, would be an exercise in futility and/or it can be said that the same shall now be an abuse of process of Court. UNDER the circumstances, it appears to the Court that this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal proceedings rather than relegating the petitioners to approach the learned Magistrate to point out the order passed by the appellate authority quashing and setting aside the demand on unpaid duty. In view of the aforesaid controverted facts and circumstances, the petitioners should not be relegated to appear before the concerned learned Magistrate and request for dismissing the Complaint pointing out the aforesaid order passed by the appellate authority.