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TMI Blog2017 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements did not implicate the respondent and at best the allegations against him were in the realm of suspicion which could not reach the pedestal of proof beyond reasonable doubt. Hence, this Court finds no infirmity in the impugned order dated 21st December, 2009 dropping the proceedings against the respondent. As regards the second prayer of the petitioner of expunging the remarks in the two orders dated 8th December, 2009 and 21st December, 2009, a perusal of the same reveals that they were wholly unwarranted and are thus expunged. Petition disposed off - decided in favor of respondent-assessee. - CRL.M.C. 1004/2010 - - - Dated:- 17-1-2017 - MS. MUKTA GUPTA J. Petitioner Represented by: Mr. Satish Aggarwala with Mr. Anish Aggarwala, Advs. Respondent Represented by: Dr. Ashutosh, Adv. 1. Aggrieved by two orders dated 8th December, 2009 and 21st December, 2009, the petitioner has filed the present petition under Section 482 read with Section 483 Cr.P.C. The grievance of the petitioner is two folds, firstly unwarranted remarks against the counsel appearing on behalf of the petitioner in the two orders and secondly, dropping the proceedings against the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. The adjudication authority ordered absolute confiscation of the seized goods and imposed penalties on Mahender Goyal, Vijay Saxena, Tony and his partner and also imposed a penalty of ₹ 2 lakhs on the respondent herein. 4. Appeals were filed before the Custom, Excise Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal ) by the respondent wherein the orders passed by the adjudicating authority were set aside. After detailed consideration of the merits, the Appellate Tribunal held- 5. In appeal No.C/11/2000, the statements of Rakesh Kumar, Raj Kumar Singhal and Vipin Kumar Bansal have been relied upon to charge the appellant with abetment of smuggling. In his first statement dated 1.9.97, Rakesh Kumar has stated that on 17.8.97, it was the appellant who helped him and Raj Kumar Singhal to clear mobile phones etc. without payment of duty. The contention of the appellant that he was on leave on that day has not been rebutted and there is also no finding that even though he was on leave, the appellant was physically present at Varanasi Airport on 17.8.97. Regarding clearance of goods carried by Rakesh Kumar and Raj K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh on leave, was physically present in Varanasi Airport on 17.8.97. Therefore, this portion of the statement of Raj Kumar Singhal that he has seen the appellant on all 3 occasions viz. 17.8.97, 24.8.97 and 1.9.97 is not true. In these circumstances, cross examination of Raj Kumar Singhal was absolutely necessary and it is not open to the Commissioner to state that cross-examination could not take place because Raj Kumar Singhal was not presented, since it was the duty of the customs authorities to present him for cross-examination. Further, neither Rakesh Kumar nor Raj Kumar Singhal and Vipin Kumar Bansal have identified the appellant as the person who helped them to clear the goods without payment of duty. Nothing incriminating has been recovered from the appellant. The stand of the appellant that he was not on customs clearance duty on 24.8.97 and 1.9.97 has not been found to be untrue and in fact, his contention stands indirectly accepted by the Commissioner who has held the appellant guilty of abetment by getting dutiable goods cleared free of duty through other customs officers posted in the Customs clearance counter at Varanasi Airport on the relevant dates. The evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ors. 8. Per contra, learned counsel for the respondent relying upon three judgment bench decision in the case reported as ( 2011) 3 SCC 581 Radheshyam Kejriwal Vs. State of West Bengal Anr. states that there is a distinction between exoneration in the disciplinary proceedings and quashing of adjudication proceedings in Foreign Exchange Regulation Act (FERA) as the evidence in both the adjudication proceedings and the complaint case filed was same with the standard of proof being lower i.e. not beyond reasonable doubt. Hence continuation of the criminal proceedings against the respondent was an exercise in futility and required to be quashed. 9. The issue whether the criminal proceedings can be quashed in case a person has been exonerated by the adjudicating authority was decided by the Supreme Court in Radheshyam Kejriwal (supra) wherein it was held that if a person has been exonerated on merits and not on a technical ground, then the criminal proceedings can be quashed. The relevant extract of the report is as under: 38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the harmonious reading of all these judgments as I do not even see any contradiction. In fact, various cases of the Supreme Court, note whereof is taken above, deal with different situations. The principles which can be culled out from the aforesaid judgments, when all these judgments are read out harmoniously, would be the following: 1. On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. For initiating criminal proceedings one does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature. 2. The findings in the departmental proceedings would not amount to resjudicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of prosecution . 3. In case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y/suitability of the officer incumbent to continue in service. The Supreme Court in Ajay Kumar Tyagi (supra) referring to earlier decision of the larger bench in P.S. Rajya Vs. State of Bihar 1996 (9) SCC 1 held that High Court quashed the prosecution on total misreading of the judgment in case of P.S. Rajya (supra). The Supreme Court held that in P.S. Rajya (supra) the Court did not lay down any proposition that on exoneration of an employee in the departmental proceedings, the criminal prosecution on identical charge or evidence has to be quashed. It is well settled that the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (supra) the Supreme Court quashed the prosecution when the accused was exonerated in the departmental proceedings would not mean that it was quashed on that ground. Thus, the ratio laid down by the Supreme Court in Ajay Kumar Tyagi (supra) and Dhirendra Prasad Shrivastava (supra) is that exoneration in the departmental proceedings ipso facto would not lead to the acquittal of the accused in the criminal trial. 13. In Videocon Industries Ltd. (supra) the Supreme Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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