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TMI Blog2006 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... lwood, peacock feathers and mica powder. A statement was recorded on 7-4-1993 from Shri A. Mohammed when he stated that he had used to export red sanders musical instrument parts which he could not resume beyond April, 1992, owing to changed Government policy. One of the offenders involved Shri Syed Kalimullah of Singapore, in his statement dated 16-4-1993, admitted to have purchased 200 tons of sandalwood logs/billets from one Shri Kannan. He also stated that the appellant Shri Mohammed was a friend of Shri Kannan in the business. Another suspect Shri R.D. Sethuraman in his statement dated 21-4-1993 stated that Shri Mohammed of Vyasarpadi had used to supply sandalwood to Shri Kannan. In his statement dated 21-4-1993, the appellant stated that he had been in the business of red sanders for six years and had purchased sandalwood in 1992 for export as sandalwood chips. He admitted smuggling of musical instruments made of red sanders through Airport (Chennai) as passenger baggage. He had identified a sheet of paper recovered from the residence of Shri Kannan and stated that the same was hand written account of the sets of musical instrument parts supplied to Shri Kannan. Another accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered before the CBI and admitted that they had been involved in the present transaction of illegal export. Therefore, it was submitted that the department's finding that one Shri Kannan was the person behind the entire transaction had been demolished. Even if the appellant had supplied red sanders to Shri Kannan earlier that had nothing to do with the subject seizure. 5.It was submitted in the grounds that the appellant was in no way connected with the impugned transactions and the fact of appellant knowing Shri Kannan and Shri Kalimullah could not be a ground for finding that the appellant was involved in the alleged attempt at export. It had transpired in the investigation that one Shri Gnanamani had filed the shipping bill and that Shri Kannan was not the kingpin. The appellant had not figured anywhere in the scheme of things. There was no evidence to support the allegations raised against the appellant. The appellant's statement dated 7-4-1993 was exculpatory in character. On 21-4-1993, a statement was recorded from him by the customs authorities wherein, he had stated that he knew Shri Kannan and had supplied red sanders to him on earlier occasions for smuggling it out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed that the Tribunal may defer the decision in the appeal. 6.On 9-11-2006, the ld. Counsel arguing for the appellants submitted the decision of the Hon'ble High Court of Madras, in the Criminal Revision Petition in the case of Shri A. Mohammed v. State reported by the Dy. Supt. of Police, CBI, Madras. The ld. Senior Advocate submitted that as per the said decision of the Hon'ble High Court, the appellant was discharged under Section 239 of Cr.PC and took us through the following findings of the Hon'ble High Court. "4.Among the statements recorded from various persons firstly by the Customs and later by CBI, it could be seen that only A.l, Kalimullah, A.4, Chandrasekaran mentioned the name of the petitioner and others do not even mention his name. In the statement of Kalimullah, A.l, while answering the question No. 4, he simply stated that Kannan and Sethuraman are friends of the petitioners in business. As regards the statement of A.4, Chandrasekaran, the statement shows that he speaks about efforts to obtain permission for export of sandalwood on the basis of pre ban commitment. It is only in the month of April 1992, sandalwood logs export was banned. Thus, whatever Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone the petitioner was dealing with at the relevant point of time, there is no basis for implicating this petitioner in this case. There is no material to entertain any suspicion, leave alone grave suspicion against this accused. No materials are available to make out a prima facie case against this petitioner." 7.The Hon'ble High Court had referred to the following observation of the Apex Court's decision in the case of Union of India v. Prafulla Kumar, reported in AIR 1979 SC 366, while passing the above decision on framing of charges under Section 227 of the CrPC : "The test to determine a prima facie case would naturally depend upon the facts of each case and it is' difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." 8.The Ld. Senior Advocate for the appellant argued that the appellant deserved to be fully exonerated from the allegations in view of the categorical finding of the Hon'ble High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 had 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 independent, any order of confiscation and penalty resulting from adjudication cannot be allowed to stand in the face of an order of acquittal passed by the criminal court on the same set of facts and evidence. When this ruling of the Apex Court is applied to the present case, we have no option but to set aside the penalties". 11.A judgment of the High Court passed under Section 397 and 401 of Cr.PC deciding a discharge petition can be followed to decide the same charges relying on the same evidence departmentally. The High Court in the appellant's own discharge petition (supra) had decided that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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