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TMI Blog2004 (8) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... places of the premises in possession of the accused persons. It has also been contended by the prosecution that some other co-accused were standing on the spot and they were actively participating in the various activities. For the seized silver slabs which were foreign origin, no customs duty was paid by the accused persons. The complaint has been filed by the non- applicant before the Court below and the learned Trial Court, after examination of six prosecution witnesses before framing of charge and giving opportunity to the applicants to cross-examine them, framed the charge after hearing both the parties as mentioned herein above against the applicants and other co- accused persons. The contention of the applicant before the Trial Court was that against the applicants, Department has launched the proceedings before the Commissioner, Central Excise and by order dated 27-8-1996 both the applicants have been exonerated by the Commissioner, Central Excise and Customs. Therefore, no case is made out for prosecuting them before the Trial Court. The learned Trial Court has not accepted their contention and held that the non-applicants have not filed the complaint against the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amritsar [1982]133ITR909(SC) . (10) G.L. Didwania v. Income Tax Officer [1997]224ITR687(SC) (11) R.K Goenka v. Collector of Customs 2003(152)ELT54(Del) and (12) Ashok Sharma v. The Assistant Commissioner, (M.Cr.C. No. 2595/2001, decided on 13-8-2001). To combat this argument, the learned Counsel, for non- applicant Shri T.N. Singh has submitted that looking to the contents of the complaint and statements of six witnesses recorded before framing of charge by the Trial Court, the learned Trial Court found prima facie case against the applicants to frame the charge and repelled the contention of the applicants regarding dropping of proceeding by the Department vide order dated 27-8- 1996 passed by Commissioner, placing reliance on the judgment passed by five Judges Bench of Apex Court in the case of Assistant Collector of Customs, Bombay and Anr. v. L.R. Malwani and Anr. 1970CriLJ885 and three Judges judgment passed by Apex Court in case of P. Jayappan v. S.K. Perumal, First Income Tax Officer, Tuticorin [1984]149ITR696(SC) . The learned Counsel has also pointed out that in all the judgments except in R.K. Goenka v. Collector of Customs (supra) cited by the learned Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h that he had been tried by a Court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 273. It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a prosecution nor the Collector of Customs a Court . In Maqbool Hussain v. State of Bombay 1983ECR1598D(SC) this Court held that the wording of Article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a Court of law or a judicial Tribunal and prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial Tribunal in accordance with the procedure prescribed, in the Statute which creates the offence and regulates the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Pritam Singh v. State of Punjab, AIR 1956 SC 415 and again in N.R. Ghose v. State of West Bengal 1960CriLJ289 . But before an accused can call into aid the above rule, he must establish that in a previous lawful trial before a Competent Court, he has secured a verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the reasons already mentioned, were are unable to hold that the proceeding before the Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos.l and 2. Applying the aforementioned test as laid down by the Supreme Court, the applicants have not been acquitted in trial held by Competent Criminal Court. Therefore, there is no application of Article 20(2) or Section 403 of Criminal Procedure Code, 1898 (Section 300 in New Criminal Procedure Code, 1973) which says that no person shall be prosecuted and punished for the same offence more than once. The proceeding dropped by the Commissioner, Central Excise and customs was not a prosecution nor the Commissioner of Customs is a Court. Therefore, applicants can not get any benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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