2018 (6) TMI 1498 - HC - Customs

Validity of Criminal Prosecution against petitioner - case of petitioner is that in absence of any departmental proceedings, prosecution of the present petitioner cannot be continued - Held that - The fact remains that criminal prosecution of the petitioner is based on some departmental proceedings which were formed to be basis for taking out Customs Appeal before the Division Bench of this Court which already stood withdrawn upon the request of the Revenue as is apparent from the order dated 10-4-2017 - Once the basis for such prosecution being departmental proceedings have already come to an end in favour of the petitioner and against Revenue. The prosecution initiated against the petitioner in Criminal Complaint No. 43/S/2013 pending on the file of Chief Metropolitan Magistrate, Esplanade, Mumbai needs to be quashed - petition allowed.

Summary

Issues:
1. Withdrawal of appeal by Revenue against the petitioner.
2. Continuation of criminal prosecution despite withdrawal of departmental proceedings.
3. Legal basis for quashing the criminal complaint against the petitioner.

Analysis:
1. The petitioner, a public servant, faced a show cause notice from the Customs department, leading to Customs Appeal No. 6 of 2011. The Revenue withdrew the appeal against the petitioner on 10-4-2017, resulting in no ongoing departmental proceedings under the Customs Act against the petitioner.

2. Despite the withdrawal of the appeal, parallel criminal proceedings were initiated against the petitioner based on the earlier departmental proceedings. The petitioner argued that without any ongoing departmental proceedings, the prosecution against him should not continue, citing the judgment of the Apex Court in Radheshyam Kejriwal v. State of W.B.

3. The Revenue contended that even with the withdrawal of departmental proceedings, criminal prosecution could continue due to the substantial legal question involved in the Customs Appeal. However, the court found that once the basis for prosecution (departmental proceedings) ceased to exist in favor of the petitioner, the prosecution could not be justified, aligning with the principles laid down in the Radheshyam Kejriwal case.

4. The court ruled in favor of the petitioner, quashing the criminal complaint pending against him in Criminal Complaint No. 43/S/2013 before the Chief Metropolitan Magistrate, Esplanade, Mumbai. The petition was allowed, setting aside the criminal complaint against the petitioner with consequential reliefs.