PRAHLAD NEEMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision has been directed by the applicants against the order of framing of charge under Section 135 (1) of Customs Act, 1962 against the applicants by the learned II Addl. Chief Judicial, Magistrate, Indore, in Criminal Case No. 2/1997 order dated 1-11-2003 for the offence punishable under Section 135 (1) of Customs Act, 1962 (for brevity "the Act" ).

(2.) IN brief the factual matrix of the case is that on 27-2-1992, on the basis of an intelligence, the Custom and Central Excise Officers of Indore had conducted a search of the premises 42-A-43-C, Sector-E, Industrial Area, Sanwer Road, Indore. It is alleged by the prosecution that in the said search the raiding party had recovered 90 silver slabs bearing foreign markings indicating their foreign origin. These 90 silver slabs weighing 3041. 493 kgs and valuing Rs. 2,41,00,000/- were seized from different places of the premises in possession of the accused persons. It has also been contended by the prosecution that some other co-accused were standing on the spot and they were actively participating in the various activities. For the seized silver slabs which were foreign origin, no customs duty was paid by the accused persons. The complaint has been filed by the non- applicant before the Court below and the learned Trial Court, after examination of six prosecution witnesses before framing of charge and giving opportunity to the applicants to cross-examine them, framed the charge after hearing both the parties as mentioned herein above against the applicants and other co- accused persons.

(3.) THE contention of the applicant before the Trial Court was that against the applicants, Department has launched the proceedings before the Commissioner, Central Excise and by order dated 27-8-1996 both the applicants have been exonerated by the Commissioner, Central Excise and Customs. Therefore, no case is made out for prosecuting them before the Trial Court. The learned Trial Court has not accepted their contention and held that the non-applicants have not filed the complaint against the accused persons on the basis of the order passed by Commissioner but a separate complaint has been filed in which the prosecution has examined six witnesses and full opportunity was given to the accused persons to cross-examine them before framing of charge. Even then some important witnesses like Sarveshkumar (P. W. 1), no cross-examination was done. According to the impugned order, after dropping the proceedings by Commissioner, the Department has filed appeal before the Tribunal and same is pending. This fact was also admitted by the applicants before the Court below. Therefore, only on the basis of order of Commissioner dated 27-8-1996 the applicants can not be discharged.