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TMI Blog2019 (3) TMI 1875X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court in CSTA No. 8/2016. The said appeal was dismissed as withdrawn - Since the petitioner is exonerated on merits on the very same set of facts and is held innocent by the adjudicating authority, in my view, criminal prosecution on the same set of facts and circumstances, cannot be allowed to be continued, on the underlying principle of 'higher standard of proof' in criminal cases. Therefore, solely on this ground, the proceedings initiated against petitioner are liable to be quashed - question is answered in favour of the petitioner. Whether respondent has made out sufficient grounds for prosecution of the petitioner for the alleged offence? - HELD THAT:- In the case in hand, except the confession of the coaccused, the prosecution has not rested its case on any other piece of evidence to bring home the guilt of the accused. Under the said circumstances, the prosecution of the accused person solely on the basis of the statement of the co-accused that too in the backdrop of exoneration of the petitioner in the adjudication proceedings, in my view, the material produced by the prosecution is not sufficient to proceed against the petitioner for the alleged o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bric] of total CIF value of US$ 2,969,769, equivalent to ₹ 13,65,32,196/-. A show cause notice bearing DRIF No. S/IV/06/2009 dated 20.11.2009 was issued to the petitioner, amongst others, alleging infraction of the Customs Act, 1962 ['Act', for short] in respect of goods exported under three shipping bills, proposing penal action, inter alia, against the petitioner. Petitioner submitted a reply and on adjudication, penalty of ₹ 13,00,000/- was imposed on the petitioner under section 114[iii] of the Act. In the same investigation, another show cause notice bearing F. No. DRI/S/IV/14/2009 [MRU]/1640/10 dated 2.11.2010 was issued to the petitioner in respect of goods exported under 50 shipping bills. In the show cause notice, it was alleged that the petitioner arranged for seeking money illegally from Dubai to India under the cover of subject exports of SLN by way of inward remittances from certain Dubai based parties, who are actually not the consignees/buyers of the subject goods. It was alleged that money sent by petitioner was collected by one Feroz Khan, a relative of petitioner and proprietor of East West Tourist Corporation. Therefore, penalty was propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of confession of the co-accused. Courts have consistently held that confession of co-accused cannot be considered as offence of substantive nature against co-accused person. It is the submission of the learned counsel that, barring the alleged confession statement of Accused No. 1, no other material is available to substantiate the charges levelled against the petitioner and moreover, petitioner having been prosecuted on the allegations which are already adjudicated by the competent authority and having been found false and baseless, prosecution of the petitioner is wholly illegal and amounts to abuse of process of court. In support of this submission, learned counsel for the petitioner has referred to the factual findings noted by the CESTAT and has sought for quashing of the proceedings initiated against the petitioner. 4. Learned counsel for the petitioner has also taken up a plea that apart from lack of tangible evidence in proof of above charges, even the trial court lacked territorial jurisdiction to try the alleged offences in view of admitted position that petitioner was all throughout residing in Dubai and therefore in the light of section 1[2] of the Act, prosecution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications of the act of the petitioner lie beyond the domain of mere dispute between private disputants and hence this Court would not be justified in quashing the proceedings where the acts committed by the petitioner amount to financial or economic fraud or misdemeanor. With regard to the evidentiary value of the statement of co-accused, learned counsel has referred to the decision of the Hon'ble Supreme Court in 'NARESH J. SUKHAWANI v. UNION OF INDIA' reported in 1995 Supp [4] SCC 663 and with reference to paragraph-4 thereof has reiterated that statement recorded by Customs officials stands on a different footing. A statement made before the Customs officials is not a statement recorded under section 161 of Cr.P.C.; it is a material piece of evidence collected by the officials under section 108 of the Act. Therefore, the said material can certainly be used to connect the petitioner to the offences alleged against him and therefore substantive evidence having been available in proof of the involvement of petitioner in the contravention of the provisions of the Act, prosecution of the petitioner is well justified and cannot be quashed. 7. In the light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barring the confessions of co-accused Sri. Suresh Prabhu and Sri. Feroze Khan, was there any documentary evidence or any other independent evidence against the petitioner to establish any link of the petitioner to the entities to establish his role of abetting in fraudulent exports by SLN and the learned Departmental Representative could not show from records any such evidence. 9. Thus, the Tribunal was of the opinion that there was absolute lack of material tangible evidence against the petitioner and whatever documentary evidence collected by the Department did not conclusively link the petitioner to the alleged offence. The Tribunal was of the opinion that solely on the basis of uncorroborated confession of the co-accused, petitioner cannot be found guilty of the alleged offences and consequently the Tribunal set aside the penalty imposed on the petitioner. It is borne on record that as against the order of the Tribunal, the Commissioner of Customs preferred an appeal before this Court in CSTA No. 8/2016. The said appeal was dismissed as withdrawn. As a result, findings recorded by the adjudicating authority has attained finality. 10. In the light of the above findings, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as in the prosecution launched against the petitioner, respondent has mainly relied on confession of co-accused as a material and substantive piece of evidence, to substantiate the charges framed against petitioner. All other material produced by the respondents do not connect the petitioner to the alleged offence. Under the above circumstances, adjudicating authority having recorded clear findings based on merits, in my view, the principles laid down in the above case can be squarely applied to facts of the present case. Since the petitioner is exonerated on merits on the very same set of facts and is held innocent by the adjudicating authority, in my view, criminal prosecution on the same set of facts and circumstances, cannot be allowed to be continued, on the underlying principle of 'higher standard of proof' in criminal cases. Therefore, solely on this ground, the proceedings initiated against petitioner are liable to be quashed. Point No. 1 is accordingly answered in favour of the petitioner. 11. Reg. point No. [ii]: Insofar as the contention urged by petitioner regarding the prima facie material in proof of accusations leveled against petitioner is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of Section 30 of Indian Evidence Act, 1872. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. In paragraph-12 of the said Judgment, the Hon'ble Supreme Court has observed as under: As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh : 1952 SCR 526: [AIR 1952 SC 159] where the decision of the Privy Council in Bhuboni Sahu's Case, : 76 Ind. Appellant 147 [AIR 1949 Police Constable 257] case has been cited with approval. 14. In the light of the authoritative pronouncement of the Hon'ble Supreme Court in the above decision, I need not strain the judgment with any other authority on the issue of the evidentiary value of the confession of a co-accused. In a criminal trial, no doubt, Court is entitled to take into consideration confession of a co-accused, but unlike in a confiscation proceedings, in a criminal trial, Court cannot start with the confession of a co-accused as the foundational fact to record conviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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