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TMI Blog2016 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. - Decided in favor of petitioners. - CRL. M. C. 1990/2010 - - - Dated:- 8-2-2016 - Suresh Kait, J. For the Petitioner : Mr. Yogesh Verma, Advocate For the Respondent : Mrs. Sonia Sharma, Senior Standing Counsel ORDER Suresh Kait, J. CRL.M.C. 1990/2010 1. By way of the present petition, filed under Section 482 Cr.P.C. petitioner has sought to quash the proceedings of the complaint case no. 19/1/06 titled as Sh. Anil Kumar (Air Customs Officer) vs. Prem Kumar, pending before the court of ld. ACMM, New Delhi for the offences punishable under Section 132 and 135 (1) (a) of the Customs Act, 1962. 2. Mr. Yogesh Verma, ld. Counsel appearing on behalf of the petitioner argued that vide order dated 12.03.2007 passed in Original no. 12/2007, Additional Commissioner of Customs, IGI Airport, New Delhi opined that out of 36110 Euros, 34000 Euros were acquired illegally in as much as no evidence as regards their lawful acquisition from an authorized dealer or money changer or otherwise was proved at the time of seizure or in their reply to show cause notice or at the time of personal hearing. Both the notices, however, placed sufficient evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order has mentioned that as per Regulation 5 of Foreign Exchange management (Export and import of Currency) Regulations 2000 wherein Reserve Bank of India may by regulations, prohibit, restrict of regulate the export, import or holding of currency notes. The said Regulation 5 reads as under: Except as otherwise provide in these regulations no person shall without the general or special permission of the Reserve Bank of India import or send out of India, any Foreign Currency . A plain reading of the Regulation makes it clear the Foreign Currency as such is not prohibited good and its import or export is subject to the permission given by the Reserve Bank of India. Further as per Regulation 7 (2)(ii) of the said Regulations (2) any person may take or send out of India (ii) foreign exchange obtained by him by drawl from an authorized person in accordance with the provisions of the Act or the rules or regulations or directions made or issued thereunder. Thus Foreign currency is not prohibited and it import or export is subject to law and rules and regulations issued by a competent authority. The foreign currency is not notified as prohibited under Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Additional Commissioner of Customs, IGI Airport, New Delhi is upheld as modified above. 5. Ld. Counsel further submitted that as per the opinion of the appellate authority foreign currency was not prohibited under Customs Acts. Therefore, the currency in question was released in favour of the petitioner and redemption duty was reduced. 6. Mr. Yogesh Verma, ld. Counsel appearing on behalf of the petitioner submitted that since the petitioner has been exonerated for the offences punishable under Section 135 of the Customs Act, 1962 therefore, the proceedings before the trial court cannot continue. 7. To strengthen his arguments, he has relied upon a case of Karamveer Singh v. Rajesh Arora decided by this Court in Crl. M.C. 2910/2011 on 13.12.2012, wherein in Para 14 it is observed as under: 14.................................................................................. ................................................................................. 22. While allowing the case of Sunil Gulati Anr. V. R.K. Vohra, [145 (2007) DLT 612] this Court held that where the accused persons are exonerated by the competent authorities/Tribunal in adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner that he will not dispute the circumstances of the seizure and will not dispute the identity of the seized foreign currency during the Trial. Thus, at this stage, the relief sought by the petitioner cannot be given. 10. I have heard ld. Counsel for the parties. 11. It is pertinent to mention here that vide order dated 29.03.2012, this Court directed the respondent to decide the reference of the petitioner expeditiously, which was filed on 22.02.2012, same was rejected on 26.03.2013 on delay but not on merit. 12. On perusal of order dated 17.10.2007 passed by the Appellate Authority whereby it is opined that the petitioner purchased Euros 1,000 lawfully and his passport had an endorsement to this effect. The petitioner had residual amount of Euros 110 from the previous visit. The Adjudicating Authority found the same to be correct. Therefore confiscation of Euros 1110 from the petitioner and its release on payment of fine of ₹ 6000/- was unwarranted and illegal. Accordingly, vide order dated 17.10.2007, the Appellate Authority set aside the confiscation of Euros 1110 and directed the same to be released in favour of the petitioner without any fine. Therefore, not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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