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TMI Blog2012 (12) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid shampoo and talcum powder bottles, therefore, in this case there cannot be any mens rea since the petitioner had no knowledge about the substance found in the aforesaid bottles. The Joint Secretary has maintained the order of confiscation and the 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. Under the Customs Act, 1962 there is complete restriction on the aforesaid substance, which the petitioner has brought from Hong-kong, without her knowledge, therefore, her state of mind cannot be said to be having an intention to import or smuggle the aforesaid substance - Thus in the present case the criminal proceedings pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 at the IGI Airport, New Delhi when he along with his mother Smt. Chinta Devi were returning from Hong Kong. During the search of his baggage, 4.160 kg of white medicinal powder, which on chemical analysis was found to be Desxamethasone, was allegedly recovered from the shampoo and talcum powder bottles. According to the petitioner, the CIF value of white powder was Rs. 3,55,680/- ,while its market value was of Rs. 6,24,000/-. 5. After the search was conducted, the medicinal powder in question was confiscated under Section 111(b) and (m) of the Act, 1962 and penalty was imposed on the petitioner and his mother by the Additional Commissioner of Customs. 6. Upon Appeals being filed, the Commissioner of Customs (Appeals) maintained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the concealment of the medicinal powder in the Shampoo and Talcum Powder bottles. She submits that since the petitioner has been exonerated in the adjudication proceedings, he cannot be prosecuted in a complaint filed by the Department under Section 132 and 135(1)(a) of the Act, 1962. 12. On the other hand, Mr. G.C. Kanojia, learned counsel for respondent- Department relies upon Section 138A of the Act, 1962, which reads as under:- Section 138-A Presumption of culpable mental state.-- (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has accepted the contention of the petitioner that she had no knowledge about the substances in the aforesaid shampoo and talcum powder bottles, therefore, in this case there cannot be any mens rea since the petitioner had no knowledge about the substance found in the aforesaid bottles. The Joint Secretary has maintained the order of confiscation and the 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. Under the Customs Act, 1962 there is complete restriction on the aforesaid substance, which the petitioner has brought from Hong-kong, without her knowledge, therefore, her state of mind cannot be said to be having an intention to import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Government of India, and same has attained the finality. 25. In view of the above submissions and discussions, I quash the proceedings in the criminal complaint dated 08.08.2002, under Sections 132 135 (1)(a) of the said Act, pending against the petitioner in the Court of Ld. ACMM, New Delhi. 15. Even otherwise, this Court is of the view that the argument raised by the learned counsel for respondent-Department is no longer res integra in view of the judgment of the Supreme Court in Radheyshyam Kejriwal vs. State of West Bengal Anr., JT 2011 (2) SC 443. In the said judgment, the Supreme Court has held as under:- 22.1 The Delhi High Court also considered this question arising out of a case under Foreign Exchange Regulation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act. 22.2 We respectfully endorse the view taken by the Bombay High Court in the case of Hemendra M. Mothari (supra) and Delhi High Court in Sunil Gulati (supra) 16. In view of the aforesaid discussion, this Court is of the view that the issue raised by the respondent in the present petition is squarely covered by the judgment passed by a Coordinate Bench of this Court in Chinta Devi Vs. Rajesh Arora Air Custom Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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