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2018 (10) TMI 333 - HC - CustomsMaintainability of petition - remedy by way of appeal/revision present - dismissal order passed by the trial court in the discharge petition - petitioner has submitted that the petitioner need not file revision against the dismissal of the discharge petition and he can straight away file petition u/s.482 of Cr.P.C., to quash the criminal proceedings - Smuggling - restricted item - Muriate of Potash (MOP) - export of MOP smuggled out of India under the guise of 'Industrial Salt' - Offences punishable under Sections 132 and 135 of the Customs Act, 1962. Held that - It is no doubt that the dismissal order passed by the trial court in the discharge petition filed by the petitioner is not an interlocutory order and as such, it is a revisable order but, the petitioner has not filed any revision - reliance placed in the decision in the case of MOHIT ALIAS SONU AND ANOTHER VERSUS STATE OF U.P. AND ANOTHER 2013 (7) TMI 1005 - SUPREME COURT , where it was held that The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-a-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Code of Criminal Procedure or Section 151 Code of Civil Procedure cannot and should not be resorted to. This petition is not maintainable and hence, the same is liable to be dismissed - petition dismissed.
Issues Involved:
1. Quashing of criminal proceedings under Sections 132 and 135 of the Customs Act, 1962. 2. Validity of the sanction order based on the adjudicating authority's order. 3. Impact of the appellate tribunal's decision on the criminal prosecution. 4. Simultaneous adjudication and criminal prosecution. 5. Alternative remedy and maintainability of the petition under Section 482 Cr.P.C. Issue-Wise Detailed Analysis: 1. Quashing of Criminal Proceedings: The petitioner sought to quash the proceedings in C.C.No.11 of 2012 under Sections 132 and 135 of the Customs Act, 1962. The complaint alleged that Muriate of Potash (MOP), a restricted item, was smuggled out of India under the guise of 'Industrial Salt'. The consignment was detained and seized, leading to the prosecution of the petitioner and others for mis-declaration and smuggling. 2. Validity of the Sanction Order: The learned senior counsel for the petitioner argued that the sanction order dated 07.06.2011, issued by the Commissioner of Customs, was based on an adjudicating authority's order dated 29.03.2011, which was later set aside by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on 02.05.2012. Therefore, the prosecution could not continue. The learned Special Public Prosecutor countered that the CESTAT had remanded the matter for fresh disposal, and the adjudicating authority confirmed the earlier order on 03.04.2014, imposing penalties and ordering confiscation. 3. Impact of the Appellate Tribunal's Decision: The learned senior counsel cited Supreme Court decisions in G.L. Didwania and K.C. Builders, asserting that the findings of the Appellate Tribunal were conclusive, and the prosecution could not be sustained. However, the court noted that the adjudicating authority's order was restored after the remand and subsequent appeal dismissal, thus allowing the prosecution to continue. 4. Simultaneous Adjudication and Criminal Prosecution: The Special Public Prosecutor referenced the Supreme Court's decision in AIR Customs Officer IGI New Delhi Vs. Pramod Kumar Damija, which clarified that adjudication proceedings and criminal prosecution are independent and can be launched simultaneously. The court reiterated that even without a decision in adjudication proceedings, criminal prosecution could be initiated. 5. Alternative Remedy and Maintainability of Petition under Section 482 Cr.P.C.: The petitioner had previously filed a discharge petition under Section 245(ii) Cr.P.C., which was dismissed by the trial court. The petitioner did not file a revision against this dismissal but instead filed the current petition under Section 482 Cr.P.C. The court highlighted that the dismissal of the discharge petition was a revisable order, and the petitioner should have sought revision. The court referenced the Supreme Court's decision in Mohit alias Sonu Vs. State of U.P., stating that inherent powers under Section 482 Cr.P.C. should not be exercised when a specific remedy by way of appeal or revision is available. Conclusion: The petition to quash the criminal proceedings was dismissed. The court held that the prosecution could continue despite the initial setting aside of the adjudicating authority's order, as the order was later confirmed after remand. The simultaneous adjudication and criminal prosecution were deemed permissible, and the petition under Section 482 Cr.P.C. was not maintainable due to the availability of a specific remedy by way of revision. Consequently, connected miscellaneous petitions were also closed.
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