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TMI Blog2016 (5) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular No.27 of 2015-Customs, dated 23.10.2015 of the Ministry of Finance, Government of India, does not point out expressly that payment of penalty imposed upon a person in Adjudication Proceeding is a condition precedent for 'withdrawal of prosecution' by the Respondent/complainant. In the present case, for nearly six years, the Respondent/complainant had not filed any complaint before the Competent Court, not withstanding the fact that in terms of Customs Act, 1962, the prosecution must not be imposed any one in respect of offences covered under Sections viz., 132, 133, 134, 135A or 1136 of the Customs Act, 1962. It is for the 'Appropriate Authority' to take into consideration of the nature of the offence, the role of the individual concerned and evidence available on record to substantiate the guilty mind of the person for launching prosecution. It is to be noted that Section 132 of the Customs Act is a Bailable one. Further, the offence under Section 135 of the Act is a compoundable one, in terms of Section 137(3) of the Customs Act. The spirit and tenor of the guidelines issued for launching the prosecution, procedure for withdrawal of prosecution, procedure for withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Special Public Prosecutor stated that the Petitioner has not preferred any appeal against the adjudication orders passed in Order-in-Original dated 17.4.2010 in O.S.No.05/2010 and a penalty of ₹ 1,50,000/- was imposed upon him. Since, he has not preferred any appeal against the same it has attained finally. Hence the present petition filed by the Petitioner is not at all maintainable and deserves to be dismissed. Therefore considering both side arguments, the Petitioner has no locus standi to file the petition to drop the proceedings. If at all the Petitioner has aggrieved by the pendency of the R.R.No.23/2009 he has to approach the Hon'ble High Court to quash the proceedings. It is true that the complainant only can file a petition to drop the proceedings as per the Union of Ministry of Finance on 23.10.2015 vide circular No.27/2015 Customs and the petition is dismissed. 3. Assailing the validity and legality of the order of dismissal dated 11.03.2016 in Crl.M.P.No.3809/2016 in R.R.No.23 of 2009 passed by the Learned Additional Chief Metropolitan Magistrate, [E.O.I] Court, Chennai, the Learned Counsel for the Revision Petitioner/Accused submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his submission, the Learned Special Public Prosecutor strenuously contends that the Government of Tamil Nadu had issued the detention order against the Petitioner under COFEPOSA G.O.No.SR.1/569-2/2009 dated 15.10.2009 and that since the said Detention Order could not be served on him, the Government had issued a Gazette Notification calling upon him to surrender before the Police Authorities and publication in Newspaper in this regard was also effected. Continuing further, it was represented on behalf of the Respondent that in the mean while, the Petitioner approached in WP.No.11539 of 2011 on the file of this Court, questioning the Detention Order and the same is pending for final orders. 9. The Learned Special Public Prosecutor for the Respondent submits that the market value of the goods smuggled by the Petitioner in the instant case comes [O.S.No.04/2010-INT] approximately ₹ 11.97 lakhs and the valuation of smuggled goods at ₹ 7,98,150/- as per the Order-in-Original No. 12/2010-ADC (Air) was not merely a mechanical replication of the internet prices of the smuggled goods, but an abatement of 40% was allowed towards duty and profit, that too on the least price of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in any of the proceedings and did not pay penalty even after six years of adjudication. 13. At this stage, this Court on perusal of the contents of the petition in Crl.M.P.No.3809 of 2015 in R.R.No.23 of 2009 on the file of the trial Court [seeking to drop the proceedings against the Petitioner] finds that the Petitioner had averred that for the alleged offence under Section 135 of the Customs Act, 1962, the Petitioner was arrested by the Respondent/Complainant on 02.08.2009, on the allegation of illegal import of RAMS AND CD players worth about ₹ 7,50,000/- and subsequently, he was released on bail. Further, even after lapse of six years, the Respondent/Complainant had not filed any complaint and therefore, the Petitioner suffers a lot. 14. The clear cut stand taken on behalf of the Revision Petitioner in Crl.M.P.No.3809 of 2015 in R.R.No.23 of 2009 on the file of trial Court is that the Petitioner comes within a purview of Circular No.27 of 2015 dated 23.10.2015 issued by the Union Ministry of Finance which was communicated to the Customs Officials to drop the Criminal Proceedings pending against the accused persons who had committed offence relating to the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been sanctioned but not filed and new facts or evidences have come to the notice of the Commisionerate or the DGRI which warrant review of the sanction for prosecution, it should be immediately brought to the notice of the sanctioning authority may recommend withdrawal of sanction order to the next higher authority. In case Commissioner/Pr. Commr. or ADGRI/Pr. ADGRI is the sanctioning authority, the recommendation will be submitted to Chief Commissioner/Principal CC or DGRI/Pr. DGRI. The recommendation will be submitted to the Board (Member of Policy Wing concerned) in such cases where sanctioning authority is Chief Commissioner/Principal CC or DGRI/ Pr.DGRI. All past cases where filing of prosecution is pending beyond three months of the sanction for prosecution shall be reviewed in the light of these instructions and necessary action taken to either file complaint expeditiously or to propose withdrawal of sanction. 11.2. Prosecution for withdrawal of Complaint already filed for prosecution 11.2.1. In cases where the complaint has already been filed in the court, it will be up to the court to decide whether or not to pursue prosecution in terms of section 257 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of instalments should be fixed such that an appropriate balance between recovery of arrears and survival of business is maintained taking into consideration the overall financial situation of the company, its assets, liabilities, income and expenses. Frequent defaulters may not be allowed payment of arrears in instalments. The decision shall be taken on a case to case basis taking into consideration the facts of the case, interest of the revenue, track record of the company its financial situation. 7. The application for allowing payment of arrears shall be made to the jurisdictional Commissioner giving full justification for the same. The approval of the application should be in writing with due acknowledgement taken on record. The permission should clearly identify the number of instalment and the month from which the payments of instalments should begin and should also clearly stipulates that in case of default in payment of instalments, the permission shall be withdrawn and action shall be taken for recovery of arrears. 19. In this connection, this Court aptly points out that Section 128 of the Customs Act, 1962, speaks about 'filing of Appeal before the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 135 of the Customs Act. As per the decision of the Union of India bv. Kanchanlal Trikamlal, (1977)-32 Excuse C/234 at page C/238. 23. One cannot ignore a relevant fact that in the decision of the Hon'ble Supreme Court in JOSEPH P. BANGERA V. STATE OF MAHARASHTRA reported in 2006 (199) E.L.T. at page 195 (S.C) at Special Page 196 at para-3, it is observed and held as follows: 3. It appears that after interception of a vessel on 24th October, 1982 adjudication proceeding started in which the vessel in question was confiscated and penalty was imposed against the appellant. Arising out of the penalty proceeding, the matter was taken to Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT ) and, by order dated 18th April, 1995, the appeal has been allowed and penalty has been deleted on merit. It has been submitted that in view of the fact that penalty imposed, against the appellant under the provisions of the Act, has been deleted by CEGAT on merit, it would be just and expedient to quash the prosecution as continuance thereof would amount to an abuse of the process of court. In support of his submission, the Learned counsel has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudication proceedings cannot be said to be irrelevant in the criminal case. 26. As far as the present case is concerned, the Petitioner/Accused had not preferred any 'Appeal' as against the Adjudication Order dated 17.04.2010 in O.S.No.05 of 2010, wherein the penalty of ₹ 1,50,000/- was imposed on him. The said order has become final, conclusive and binding between the parties. 27. Also that, the Circular No.27 of 2015-Customs, dated 23.10.2015 of the Ministry of Finance, Government of India, does not point out expressly that payment of penalty imposed upon a person in Adjudication Proceeding is a condition precedent for 'withdrawal of prosecution' by the Respondent/complainant. In the present case, for nearly six years, the Respondent/complainant had not filed any complaint before the Competent Court, not withstanding the fact that in terms of Customs Act, 1962, the prosecution must not be imposed any one in respect of offences covered under Sections viz., 132, 133, 134, 135A or 1136 of the Customs Act, 1962. It is for the 'Appropriate Authority' to take into consideration of the nature of the offence, the role of the individual concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are independent of each other in nature and (iv) the findings against the person facing prosecution in the adjudicating proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon'ble Supreme court, it is reiterated that if the party deliberately delays completion of adjudication proceedings, prosecution may be launched even during the pendency of the adjudication proceedings, where offence is grave and qualitative evidences are available. 6.3. Prosecution need not be kept in abeyance on the ground that the party has gone in appeal/revision. However, in order to ensure tht the proceeding in appeal/revision are not unduly delayed because the case record are required for purpose of prosecution, a parallel file containing copies of the essential documents relating to adjudication should be maintained. 6.4. The Superintendent in charge of adjudication section should endorse copy of all adjudication orders to the prosecution section. The Superintendent in charge of prosecution section should monitor receipt of all serially numbered adjudication orders and obtain copies of adjudication orders of missing serial numbers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in order to avoid delays, Commissioner/Pr. Commr. or ADGRI/Pr.ADGRI/adjudicating authority should indicate, at the time of passing the adjudication order itself as to whether he considers the case fit for prosecution so that it could be further processed for launching prosecution. Where at the time of adjudication proceedings, no view has been taken on prosecution by the adjudicating authority, the adjudication section shall resubmit the file within 15 days from the days of issue of adjudication order to the adjudicating authority/Commissioner to take a view of prosecution. Where the prosecution is proposed before the adjudication of the case, Commissioner/Pr. Commr. Or ADGRI/Pr.ADGRI shall record the reason for the same and the adjudicating authority shall be informed of the decision so that there is no need for him to examine the case subsequently from the perspective of prosecution. 7.5. It is observed that the delays in the Court proceedings occur due to the non-availability of records required to be produced before the Magistrate. As a matter of practice, whenever a case is taken up for seeking the approval for launching prosecution, an officer should be nominated/des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , procedure for withdrawal of prosecution, procedure for withdrawal of sanction order, procedure for withdrawal of complaint already filed for prosecution, etc., were not evaluated/appreciated and looked into in a proper and real perspective by the trial Court which has resulted in dismissal of the said Miscellaneous Petition. Therefore, this Court, to secure the ends of justice and in furtherance of substantial cause of justice, at this stage without expressing any opinion on merits of the case, sets aside the impugned order dated 11.03.2016 in Crl.M.P.No.3809 of 2015. Consequently, the Revision succeeds. 34. In the result, the Criminal Revision Petition is allowed and the order dated 11.03.2016 passed by the Learned Additional Chief Metropolitan Magistrate, (E.O.I), Egmore, Chennai in Crl.M.P.No.3809 of 2015, is hereby sets aside by this Court for the reasons assigned in this Criminal Revision. The trial Court is directed to restore the Crl.M.P.No.3809 of 2015 to its file and to dispose of the same by passing a reasoned speaking order afresh, on merits, in a diligent and dispassionate manner and also by adverting to the salient necessary ingredients of the guidelines mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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