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TMI Blog2011 (7) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 520 of 2011 - - - Dated:- 22-7-2011 - Suresh Kait, J. REPRESENTED BY : Ms. Sangita Bhayana, Advocate, for the Petitioner. Shri G.S. Kanojia, Advocate, for the Respondent. [Judgment (Oral)]. The petitioner was allegedly intercepted on 26-9-2001, at the IGI Airport, New Delhi, when she was coming from Hong Kong and as a result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as maintained the confiscation of goods and reduced the penalty amount imposed on the petitioner to ₹ 35,000/-, vide its order dated 5-5-2005. 6. Again the petitioner assailed this order by filing the Revision Petition under Section 129-DD before the Joint Secretary, to the Government of India, who exonerated her on the ground that she had no knowledge regarding the concealment of medicinal powder in the shampoo and talcum powder bottles. 7. Vide order dated 11-8-2005, the confiscation of goods was maintained by the Joint Secretary and it was held that it would be difficult to fully establish mens rea in case of the petitioner and the Government is of the opinion that the petitioner cannot be visited with penalty. 8. The Joint S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate, New Delhi. Vide order dated 18-3-2010, learned ACMM; New Delhi discharge the petitioners on the basis that there would not be any possibility of conviction of the accused, even the prosecution case brought on record, till date, remains unrebutted. Accordingly, the petitioner was discharged. 12. The Customs Department, being aggrieved by the aforesaid order dated 18-3-2010 filed a revision before the Sessions Court, whereby, the learned Additional Sessions Judge vide order dated 25-11-2010 set aside the order of learned ACMM; New Delhi and the parties were directed to appear before learned ACMM; New Delhi on 6-12-2010. Since then, the matter is pending for adjudication before learned ACMM; New Delhi. 13. By way of this petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and the concerned porson(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 19. A perusal of the aforesaid Section shows that it requires a culpable mental state of the accused. The Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits of the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. 23. In the instant case also the Joint Secretary to the Government of India, Department of Revenue has exonerated the petitioner fully on the basis that the petitioner had no intention of smuggling or knowledge of the substances in the aforesaid two bottles. 24. Keeping in view, the view taken in Sunil Gulati Anr. (supra), I am of the opinion, that the criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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