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TMI Blog2024 (8) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of one will not have bearing on the other. As far the case in hand, the adjudicating authority had held the petitioner liable for penalty. That order is under challenge before High Court, bye-passing the remedy available under the statute (i.e.,) Appeal before the Commissioner (Appeals). Courts can never fail to note the difference between the adjudication proceeding before the Authority of the Department and the prosecution before the Court of Law. Adjudication under Section 112 of the Customs Act is with regard to the property/article smuggled into India. It is an action in personam. Whereas criminal prosecution under Section 135 of the Customs Act is for the offence affecting the economy of the Country. This is an action in rem. One action cannot be a substitute for the other action. This Court holds that the petition to quash the C.C.No.446/2023 on the file of Chief Judicial Magistrate, Coimbatore is devoid of merit. Petition dismissed. - Honourable Dr. Justice G. Jayachandran For the Petitioner : Mr.C.V.Shyam Sunder For the Respondent : Mr.N.P.Kumar, Special Public Prosecutor (NCB) ORDER On 29/04/2022, based on intelligence developed by Directorate of Revenue Intelligenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrange for their transport, stay and visit to religious places. However, he denied the allegation that he instructed Tangkeswaran to collect the parcels from one Murugan and keep the one gold bar parcel with him and another gold bar parcel in the hand bag of Nandhini. 5. The conversation between Tangkesvaran and V.Girinath retrieved from the mobile of Tangkeswaran was played to V.Girinath during interrogation. He admitted his voice but feign ignorance why Tangkeswaran had incriminated him as the owner of the gold bars. 6. The conversation retrieved through mobile data disclose the active participation of V.Girinath in transporting gold bar illegally. As per instruction of V.Girinath, Tangkeswaran had waited in the Airport at a specific seat for one Murugan to deliver the parcels. As per instruction of V.Girinath, on receiving the parcel from Murugan, one parcel been kept by Tangkeswaran and another parcel been kept in the handbag of Nandhini. That apart, V.Girinath waiting at Coimbatore Airport for the arrival of the 4 passengers, also lend support to the prosecution case that he was the mastermind behind the crime of smuggling gold bar and he is not a mere facilitator arrangi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the offence had not followed the procedure contemplated in Section 244 of Cr.P.C. The sanction to prosecute the petitioner issued without application of mind and lack discussion on the sufficiency of evidence. 11. Mr.N.P.Kumar, Learned Special Public Prosecutor for Customs submitted that, there are overwhelming evidence to proceed against the petitioner for offence under Section 135 of the Customs Act. The proceedings under Section 112 of the Customs Act will no way preclude the Customs Department from prosecuting the violators and independent of the outcome of the proceedings under Section 112 of the Customs Act. It is a well settled principle of law, that prosecution under Section 135 of the Customs Act can proceed simultaneously and independent of the adjudication proceedings. 12. In the counter affidavit filed on behalf of the Department, the facts incriminating the petitioner are listed in detail, which includes the voluntary statement of the petitioner and the voice recording of the conversation between the petitioner and the other accused. The complaint contains wealth of details which requires examination through judicial process. 13. Particularly, the defence taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error crept earlier:- Accused absent. Petition filed and allowed. The memo filed by the accused side is carefully perused. The case of the prosecution also based on private complaint. But this case not followed the prosecution on contemplate U/s 245 Cr.P.C, hence this court is inclined to rectify the same by the way of this order. Accordingly, the charge based on the materials framed is omitted. Issue summons to LW-1 to LW-3 for pre-charge evidence. Call on 14/06/2024 19. Regard to the pendency of Writ Petition, challenging the Order-in- Original dated 06/03/2023, on perusing the affidavit filed by the petitioner in support of his writ petition, this Court find that the said writ petition is filed to question the admissibility and reliability of the statements given to the Customs Officials as well the admissibility and reliability of the digital evidence without following the mandate laid in Section 65 B of the Evidence Act. 20. Even if the Court in W.P.(MD).No.13814/2023 for some reason hold that these documents were not proved in the manner known, it will be only in respect of the proceedings conducted under Section 112 of Customs Act by the Adjudicating Authority and it shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlying principle being the higher standard of proof in criminal cases. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court . 23. Thus, the Law as well the judicial pronouncements is well settled and had made clear that the adjudicating proceedings under the Customs Act and the criminal prosecution under the Customs Act are not in alternate but independent to each other. They can be launched simultaneously. There is no legal impediment for parallel proceedings of adjudication and prosecution. Only in case the adjudication ends in exoneration, the continuation of criminal prosecution will be on the touch stone whether the prosecution is on the same set of facts and for the same act or omission. Otherwise, even the outcome of one will not have bearing on the other. 24. For further clarity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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