GOPAL DAS MUNDAR Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) On a prosecution having been launched against him petitioner before us charges have been framed against him under Section 135(1)(b) of the Customs Act and under Section 85(1)(ii) of the Gold (Control) Act.

(2.) It has been urged on behalf of the accused petitioner that as a departmental proceeding for confiscation was already initiated against him under Section 111 of the Customs Act and the same has been decided in his favour holding that the goods in question were not liable to be confiscated, the petitioner cannot again be proceeded under Section 135 of the Customs Act and face a criminal prosecution on that score.

(3.) We do not think that the determination of the authority concerned under Section 111 of the Customs Act one way or the other can be an absolute legal bar to any subsequent prosecution under the Customs Act for the same set of acts or omissions. But it is one thing to have a power under the law and is entirely a different thing how that power should properly be exercised. The learned Counsel for the Supreme Court reported in Uttam Chand v. Income-tax Officer, (1982) 133 I.T.R. page 909 where the Supreme Court also disapproved the prosecution of the accused under the criminal law after the accused was found not to have violated any provision in the departmental proceedings. As we have already indicated, we should not be taken to have ruled that we hold that such a prosecution cannot lie. But all that we say that, once it appears, and it has not been disputed by the learned Counsel appearing for the Customs authority, that the departmental proceedings initiated by that department itself on the same set of facts has terminated in favour of the accused, it would amount to a misuse of the process of law to prosecute the accused for the same thing under the criminal law. Mr. Talukdar has also not disputed that the proposed prosecution, so far it relates to the Customs Act would be under the same set of facts, circumstances and materials. That being so, we are inclined to hold that the prosecution, so far it relates to the charge under Section 135(1)(b) of the Customs Act, should be quashed.