2017 (1) TMI 1118 - HC - Customs

Dropping the proceedings against the respondent on his application u/s 245(2) Cr.P.C - unwarranted remarks against the counsel appearing on behalf of the petitioner in the two orders - whether the criminal proceedings can be quashed in case a person has been exonerated by the adjudicating authority? - Held that - the issue was decided by the Supreme Court in Radheshyam Kejriwal 2011 (2) TMI 154 - Supreme Court of India wherein it was held that if a person has been exonerated on merits and not on a technical ground, then the criminal proceedings can be quashed. The respondent was exonerated in departmental inquiry proceedings but in adjudication proceedings for levying penalty under Section 112(B) of the Customs Act, 1962 by the Appellate Tribunal which is a quasi-criminal adjudicatory authority. Further the Appellate Tribunal set aside the penalty after examining the witnesses and not on technical grounds. In the present case though some witnesses were not cross-examined even without presenting the witnesses for cross-examination, it was found out that their statements did not implicate the respondent and at best the allegations against him were in the realm of suspicion which could not reach the pedestal of proof beyond reasonable doubt. Hence, this Court finds no infirmity in the impugned order dated 21st December, 2009 dropping the proceedings against the respondent. As regards the second prayer of the petitioner of expunging the remarks in the two orders dated 8th December, 2009 and 21st December, 2009, a perusal of the same reveals that they were wholly unwarranted and are thus expunged. Petition disposed off - decided in favor of respondent-assessee.

Issues Involved:
1. Unwarranted remarks against the counsel for the petitioner in the orders dated 8th December 2009 and 21st December 2009.
2. Dropping of proceedings against the respondent under Section 245(2) Cr.P.C.

Issue-wise Detailed Analysis:

1. Unwarranted Remarks Against the Counsel:
The petitioner was aggrieved by the remarks made against the counsel in the orders dated 8th December 2009 and 21st December 2009. The court observed that the remarks were wholly unwarranted and thus expunged them. The remarks suggested that the counsel for the petitioner was either interested in taking adjournments or not briefing juniors properly, which was found to be unnecessary and inappropriate.

2. Dropping of Proceedings Against the Respondent:
The petitioner challenged the dropping of proceedings against the respondent under Section 245(2) Cr.P.C. The factual matrix involved the interception of Mahender Goyal with smuggled goods at Delhi Airport, and his subsequent statements implicating the respondent, a Customs Officer. The adjudication authority imposed penalties on several individuals, including the respondent, which were later set aside by the Appellate Tribunal.

The Appellate Tribunal found that the evidence was insufficient to uphold the charge of abetment against the respondent. Witnesses' statements were not corroborated, and cross-examination was not conducted properly. The Tribunal noted that the respondent was on leave on one of the relevant dates and there was no evidence of his physical presence at the airport on that day. Consequently, the penalty imposed on the respondent was set aside.

Following this, the respondent filed an application under Section 245(2) Cr.P.C., which was accepted by the learned ACMM. The ACMM observed that the Appellate Tribunal's order had been accepted by the Commissioner of Customs and, citing the decision in Sunil Gulati vs. R.K. Vohra, held that the criminal prosecution could not continue as the standard of proof in adjudication proceedings was lower than in criminal proceedings.

The petitioner argued that the exoneration in adjudication proceedings should not automatically result in quashing of criminal prosecution, citing the Supreme Court's decision in State of NCT of Delhi vs. Ajay Kumar Tyagi. The respondent, however, relied on the Supreme Court's decision in Radheshyam Kejriwal vs. State of West Bengal, which distinguished between exoneration in disciplinary proceedings and adjudication proceedings under FERA, stating that if exoneration was on merits, criminal proceedings should be quashed.

The court referred to the principles laid down in Radheshyam Kejriwal, which included that adjudication proceedings and criminal prosecution can be launched simultaneously, and exoneration in adjudication proceedings on merits would bar criminal prosecution on the same facts. The court also noted the Supreme Court's reiteration of these principles in subsequent decisions, including Air Customs Officer vs. Pramod Kumar Dhamija and M/s Videocon Industries Ltd. vs. State of Maharashtra.

In this case, the Appellate Tribunal's exoneration of the respondent was on merits, not on technical grounds. The evidence against the respondent was found insufficient, and the allegations were in the realm of suspicion rather than proof beyond reasonable doubt. Therefore, the court found no infirmity in the order dropping the proceedings against the respondent.

Conclusion:
The petition was disposed of with the expunging of the unwarranted remarks against the counsel and upholding the order dropping the proceedings against the respondent.

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