9911796707
TMI Blog2007 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... silver bars and Indian currency. He has not given any findings as to how the appellant is involved in the act of smuggling or in abetting the act. He has however, proceeded to hold that the appellant is liable for penalty under Section 112 (a) and (b) of the Customs Act for abetting the silver without recording any finding. He has imposed a penalty of Rs. 50,000/-. In the impugned order, there are 32 persons on whom the penalty has been imposed, while he has dropped the proceedings against two persons. The appellant's contention is that there is no evidence on record against him for implicating him in the act of smuggling of silver bars. It is his contention that he was in the room of the lodge. He had come to meet one Rajapandiyan. One Mr. Jahar was also present then. He had gone there to meet this person in Room No. 119 and 114. At that time, the Officers of the Directorate of Revenue Intelligence came and arrested him on the belief that he was involved in the act of smuggling of silver bars. He was beaten and he was injured. His statement was forcibly taken. However, when he was produced before the Special Judge for Economic Offences, at Hyderabad. He complained about the tortur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Additional Chief Judicial Magistrate acquitting the appellants is one on merits. We shall proceed further on this basis. 10.1 The question now arising to be considered is whether the present proceedings should be wound up in the light of the criminal court's judgment. This question has been agitated before us on the strength of a plethora of decisions. In the case of Capt. M. Paul Anthony (supra), the appellant was a security officer in the respondent-company, a government undertaking. He was placed under suspension and disciplinary as well as criminal proceedings were initiated against him on the ground that, in a police raid, mining sponge gold ball weighing 4.-5 grams and 1276 grams of gold-bearing sand were recovered from his house. The raid was conducted at the appellant's residence on 2-6-85. He was placed under suspension on 3-6-85. Disciplinary proceedings were initiated against him by issuing a charge sheet on 4-6-85. On 3-2-87, the appellant was acquitted in the criminal case with a categorical finding that the prosecution had failed to establish that "raid and recovery" were made at the appellant's residence. In the meantime, the appellant had alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions enabled the court to presume the existence of mens rea if it was a necessary ingredient of the offence charged. They also enabled the accused to rebut the presumption by proving beyond reasonable doubt that he had no culpable mental state with respect to the offence charged against him. The evidence adduced by the accused should be enough to make the court believe beyond reasonable doubt that he had no such culpable mental state. What the apex Court held in the Gopaldas' case was that, where the presumption under Section 98B of the Gold (Control) Act was rebutted by the accused, the order of confiscation of gold by the adjudicating authority under the said Act could not be allowed to stand against the order passed by the criminal court acquitting the accused after considering the same set of facts and evidences. But, at what stage was the accused to rebut the presumption? This question was also answered by the court in Gopaldas' case following its earlier decision in Inder Sain v. State of Punjab, (1973) 2 SCC 372. It was held (vide para 18 & 19 of Gopaldas), on the facts of that case, that, once the prosecution adduced evidence of the accused having been in possession of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority and the criminal court is, by and large, the same. After appreciating the evidence, the criminal court acquitted the accused after finding that the charge against them had not been proved. In the circumstances, we are of the view that the judicial approach taken in Paul Anthony's and Gopaldas' cases can be applied to this case and' accordingly, the order passed by the adjudicating authority imposing penalties on the appellants cannot stand in the face of their acquittal by the criminal court. 10.4 We have also examined the case law cited by ld. SDR. Some of the decisions (by High Courts) cited by ld. SDR (vide K.P. Abdul Majeed, V.J.A. Flynn, etc.) are to the effect that adjudication and criminal proceedings are independent of each other and that the degree of evidence required by the adjudicating authority for imposing penalty is much less than that required by criminal court for convicting the accused. There is no quarrel about this legal position, which has been upheld by the apex Court also. However, as we have already noted, the view taken consistently by the apex Court is that, notwithstanding the fact that adjudication and criminal proceedings are independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties as undelivered. It was further sent to Additional director, D.R.I., Madras to serve on the party. Addl. Director D.R.I. on 30-4-93 informed that the adjudication order could not be served on the offender i.e. Ameer Moheen, as the addressee was not residing at the given address. Hence, by giving wrong address, you have avoided the serving of the adjudication order, thereby loosing an opportunity to appeal against the order. However, as requested by you a copy of the adjudication order dt. 28-2-92 herewith for your record.. 4. In view of the above, you are hereby directed to pay the govt. dues without further delay as it is pending for long time. Yours sincerely, Sd/- (K. SIDDANNA) Asst. Commissioner of Customs (RRU) Encl.: As above. He submits that he was not served with the order except that he was intimated about the realisation of the government dues of penalty of Rs. 50,000/- by this letter and he immediately filed the appeal on 22-9-2005 within three months from the receipt of this letter. He submits that the appeal is well in time. 5. I have considered the submission pertaining to time bar and I find that the Commissioner has sent the recovery letter on 9-9-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
