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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 ..... sayer) AH8T398- 1Kilogra. (ii) Metalor 1 kilo gold 999.9 MSG Assayer Melter Y31685-1Kilogram (iii) Argor Heraeus SA Switzerland 100g fine gold 999.9 (Melter Assayer) CN 6132-100 Grams Smt.T.Nandhini (1) ABC 1 kilo fine gold 999.9 Australia D 0114160--1 kilogram (ii) ABC 1 kilo fine gold 999.9 Australia D 0113369-1 Kilogram (iii) Argor Heraeus SA Switzerland 100 g fine gold 999.9(Melter Assayer) CN61444-100 Grams 2. On examination of the objects by the gold appraiser, it was ascertained that the yellow coloured metal bar were 24 carat pure gold bars of foreign origin. Since these two passengers had no valid documents to carry gold to India, they were detained for enquiry and the other two passengers were let off since nothing incriminating were recovered from them. 3. The interrogation of Shri.Tangkesvaran and Smt.Nandini both Malasiyan nationals, disclosed the fact that they were carrying the gold on the instruction of one V.Girinath who arranged for their travel and shared dummy invoices through whatsapp to show as if the gold attempted to be smuggled were procured by four of them. 4. The digital analysis of the mobile used by Shri.Tangkesvaran disclosed further inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /w 112(a) and (b) of Customs Act. on Mr.V.Girinath. 8. Challenging the Order-in-Original dated 06/03/2023, V.Girinath has preferred Writ Petition (MD) No.13814/2023 before the Madurai Bench of Madras High Court and on 21/06/2023 interim stay granted in W.M.P(MD).No.11641 of 2023. The stay been extended until further orders vide order dated 26/07/2023. 9. In the meanwhile, the Assistant Commissioner of Customs, Customs Preventive Unit, Coimbatore has filed complaint before the Chief Judicial Magistrate, Coimbatore under Section 135 (1)(a) & (1)(b) of Customs Act r/w Section 200 (A) of Cr.P.C against V.Girinath and same taken on file by the Learned Chief Judicial Magistrate on being satisfied that prima facie cognizable offence made out to proceed against the accused. The said complaint taken on file and numbered as C.C.No.446/2023. It is posted for examining witnesses for pre-charge evidence. 10. Shri.V.Girinath, in his petition to quash C.C.No.446 of 2023, pleads innocence. The learned counsel for the petitioner contends that the genesis to proceed against him is the alleged statements of Tangkesvaran and Nandhini. The said statements already been retracted by the makers. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ickets for the passengers and accommodations, but it also about the gold bar parcels carried by them. Further, there is evidence to show two different set of invoices for the contraband been arranged by the petitioner. 15. It is also contended by Mr.N.P.Kumar, Learned Special Public Prosecutor for Customs that, the petitioner without resorting to the appeal remedy provided under the statute challenging the Order-in-Original, obtained exparte stay by way of Writ Petition. The writ petition is not maintainable in view of the judgment of the Hon'ble Supreme Court in C.A.Ibrahim -vs- ITO, H.B.Gandhi reported in 1992 (Suppl) 2 SCC 312. 16. Heard the Learned counsel for the petitioner, the Learned Special Public Prosecutor for the respondent and records perused. 17. The records placed before the Chief Judicial Magistrate, Coimbatore in C.C.No.446/2023 disclosed commission of offence under Section 135(1)(a) & (1)(b) of the Customs Act. The complaint as well the counter clearly makes out a case for taking cognizance of the offence against the petitioner. It is not the exculpatory statement of others but the voluntary statement had provided wealth of information which on further inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exonerated in the adjudication proceedings, provided the criminal prosecution is on the same set of facts. It may be recollected the bedrock case on this point in P.Jayappan -vs- S.K.Perumal, First Income Tax Officer reported in 1984 (149) ITR 696 followed by G.L.Didwania -vs- ITO reported in 1999 (108) ELT 16 (SC). 22. In Radheshyam Kejriwal -vs- State of West Bengal and another reported in 2011 (3) SCC 581 the Hon'ble Supreme Court referring P.Jayappan case and other cases, laid down the following ratio :- 19: "The ratio which can be culled out from these decisions can broadly be stated as follow :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii) Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.
26. On the similar set of facts, this Court in S.J.Surya -vs- The Deputy Commissioner Of Income Tax vide its order dated 26th May, 2022 declined to entertain the quash petition. In view of the facts and circumstances discussed above, 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.
27. As a result, the Crl.O.P.No.14756 of 2024 stands dismissed. Consequently, connected Miscellaneous Petitions are closed. X X X X Extracts X X X X X X X X Extracts X X X X
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