2011 (7) TMI 986 - HC - Customs

Search - Prosecution - white medicinal powder, which on chemical analysis was found to be Desxamethasone, was allegedly recovered from the shampoo and talcum powder bottles. - Learned counsel for petitioner submits that the Joint Secretary to the Government of India has accepted the contention of the petitioner that she had no knowledge about the substances in the aforesaid shampoo and talcum powder bottles, therefore, in this case there cannot be any mens rea since the petitioner had no knowledge about the substance found in the aforesaid bottles - The Joint Secretary has maintained the order of confiscation and the same has not been challenged by the petitioner since the said two bottles were of the substances which are not permissible to be given to the petitioner - since there is no adjudication pending against the petitioner and the petitioner has been exonerated, in the adjudication proceedings, therefore, the criminal proceedings pending before the trial court cannot go on - Petition is allowed

Summary

Issues:
1. Exoneration of the petitioner by the Joint Secretary to the Government of India.
2. Challenge to the criminal proceedings pending before the trial court.
3. Interpretation of Section 138A of the Customs Act, 1962 regarding culpable mental state.

Analysis:
1. The petitioner was allegedly intercepted at the IGI Airport, New Delhi, with 5.808KG of Desxamethasone concealed in shampoo and talcum powder bottles. The petitioner claimed innocence, stating she had no knowledge of the concealment and was not aware of the contents of the bottles provided by unknown individuals in Hong Kong. The medicinal powder was confiscated under Section 111(b) and (m) of the Customs Act, and a penalty was imposed.

2. The petitioner appealed to the Commissioner of Customs (Appeals) and later filed a Revision Petition before the Joint Secretary, who exonerated her due to lack of knowledge about the concealed powder. The Joint Secretary found it difficult to establish mens rea and set aside the penalty, maintaining the confiscation of goods. The Customs did not challenge this decision, making it final.

3. Subsequently, the Customs Department filed a criminal complaint against the petitioner under Sections 132 and 135(1)(a) of the Customs Act. The trial court initially discharged the petitioner, but a revision by the Department led to the case being reopened. The petitioner challenged this decision, citing the exoneration by the Joint Secretary as a defense against the criminal proceedings.

4. The petitioner's counsel argued that the Joint Secretary's decision absolving the petitioner of knowledge about the concealed substances negates any culpable mental state required for the alleged offenses. Citing Section 138A of the Customs Act, the defense contended that without knowledge, there can be no intention to import or smuggle prohibited substances, as in the case of the petitioner unknowingly carrying the restricted powder.

5. Relying on legal precedents, including the judgment in Sunil Gulati & Anr. v. R.K. Vohra, the court held that exoneration in adjudication proceedings based on innocence and lack of contravention should prevent continuation of criminal proceedings on the same facts. Considering the finality of the Joint Secretary's decision and the absence of mens rea due to lack of knowledge, the court quashed the criminal complaint against the petitioner.

6. Consequently, the court allowed the petition, quashing the criminal proceedings under Sections 132 and 135(1)(a) of the Customs Act against the petitioner. No costs were awarded in the matter, bringing an end to the legal dispute.