OM PARKASH DHIR Vs. ASSISTANT COLLECTOR CENTRAL EXCISE

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure for quashing the complaint and further proceedings initiated on the basis of the complaint filed by Shri M. S. Negi, Assistant Collector, Central Excise Division, Ludhiana, against the petitioners under Section 85 of the Gold (Control) Act, 1968.

(2.) THE petitioners are partners of Messrs. Paris Jewellers, Bazar Sarafan, Ludhiana. On 20th August, 1979 a contingent of Central Excise Officers, Ludhiana, visited the premises of Messrs Paris Jewellers for checking the stocks and accounts of the firm. Om Parkash, the petitioner, was sitting on the gaddi of the shop while all the other partners were inside the shop actively running the business of the shop and handling different operations. Om Parkash, the petitioner, suspiciously and stealthily made an attempt to pass on a small packet outside the shop but he was apprehended and the packet was recovered from him. The packet contained gold ornaments, namely, four gold bangles, one gold kanthi, two earrings and one ring. The aforesaid articles weighed 81 grams and were of the value of Rs. 4,900. These ornaments weighing 81 grams were in excess of the recorded balance of the stock register of the firm. The ornaments were seized, sealed and deposited with the Administrative Officer, Central Excise Division, Ludhiana. Since the petitioners contravened the provisions of the Gold (Control) Act, 1968, punishable under Section 85 of the aforesaid Act the complaint in question was filed by the Assistant Collector, Central Excise Division, Ludhiana, against the petitioners in the Court of the Chief Judicial Magistrate, Ludhiana. A copy of the same is annexed as P. 1 to this petition.

(3.) THE only contention raised by Mr. Arvind Goel, learned Counsel for the petitioners, is that since the Collector, Customs (Appeal), vide his order dated 17th September, 1983 (annexed as P. 2 to this petition), vacated the order of confiscation passed by the Deputy Collector completely setting aside the confiscation and the penalty, no criminal prosecution could be launched against them, as the order of the Collector of Customs operated as a complete estoppel. To support his contention Mr. Arvind Goel has placed reliance upon a Supreme Court authority reported as Uttam Chand v. Income-tax Officer, Central Circle, Amritsar MANU/sc/0283/1979,, [1982 ]133 ITR909 (SC ), (1982 )2 SCC543 , wherein their Lordships were pleased to hold that, in view of the findings recorded by the Income-tax Appellate Tribunal that Shrimati Janak Rani was a partner of the assessee-firm and that the firm was a genuine one, the assessee could not be prosecuted for filing false returns. On the other hand, Mr. H. S. Brar, learned Counsel for the respondent, refuting the contention of Mr. Arvind Goel, has placed reliance on a Supreme Court authority reported as Assistant Collector of Customs, Bombay v. L. R. Melwani MANU/sc/0279/1968,, AIR1970 SC 962 , 1970 Crilj885 , [1969 ]2 SCR438 , wherein their Lordships answering the question, whether the finding of the Collector of Customs that the first and second accused are not proved to be guilty in any circumstances, operated as an issue estoppel in the criminal case against those accused, observed as under: We shall now take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution. The issue estoppel rule is but a facet of the doctrine of autre fois acquit. In Sambasivan v. Public Prosecutor, Federation of Malaya [1950] AC 458 at P. 479, Lord Mac Dermott enunciated the said rule thus: The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'resjudicate pro veritate accipiture' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. The rule laid down in that decision was adopted by this Court in Pritam Singh v. State of Punjab MANU/sc/0119/1955 , AIR1956 SC 415 , 1956 Crilj805 and again in N. R. Ghose v. State of West Bengal MANU/sc/0037/1959. , AIR1960 SC 239 , 1960 Crilj289 , [1960 ]2 SCR58. But before an accused can call into aid the above rule, he must establish that in a previous lawful trial before a competent court, he has secured a verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the reasons already montioned, we are unable to hold that the proceeding before the Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2. In view of the decision in L. R. Melwani's case MANU/sc/0279/1968 , AIR1970 SC 962 , 1970 Crilj885 , [1969 ]2 SCR438 which is a decision of the larger Bench, this petition fails and is hereby dismissed.