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TMI Blog1985 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... Car under Registration No. MRA 3267 was being used in transportation of contraband gold, the said car -was intercepted by the officers of Customs Department at Mohammed Ali Road to Modi Street, Opp: G.P.O. At Modi Street, the said car stopped and two occupants of the car whose names were Dharamchand Lalchand Shah and Jagdish Indaji Keshav got out of the car and went in the direction of nearby lane. Both these persons entered Patel Mansion and after about 10 minutes they returned to their car and at that time, the Customs Officers found that they were moving in some suspicious circumstances. Both these persons after entering the car, the driver started the same. But in the meantime, the Customs Officers stopped the vehicle. On interrogation, both these persons admitted that they were carrying gold on their person. Thereafter, the vehicle was taken to the Office of the Inspector of Customs, Alexandra Docks and on further interrogation they told the Customs Authorities that they received the gold on their person from one Maniklal Pokharaj Jain (Petitioner) residing on the First Floor of the Patel Mansion. The Customs Authorities thereafter, immediately rushed to the premises of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t representated the sale proceeds of the smuggled goods and liable to confiscation under the provisions of the Customs Act. The transistor also came to be seized. Thereafter, the statement of the Petitioner was recorded under Section 108 of the Customs Act. His further statement under Section 108 of the Customs Act also came to be recorded on July 20, 1970. In the later statement he had stated that he is innocent, he had not handed over the gold to Dharamchand or Jagdish nor the said currency notes represent the sale proceeds. According to him, Dharamchand had deposited the said amount with him for safe custody. In view of all these circumstances, the Customs Authorities carried a reasonable belief that the Indian currency seized was also liable to confiscation under Section 121 of the Customs Act as it represented the sale proceeds of smuggled goods. 5. After service of the show cause notice, the Petitioner appeared before the Additional Collector of Customs. He was represented by his Advocate Shri A.C. Krishnamurthi. Personal hearing was fixed on 6th August, 1971 and on that day, the Additional Collector of Customs told the Petitioner and his Advocate that the other two persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 135(b) of the Customs Act. Accused Nos. 2 and 3 Dharamchand Lalchand Shah and Jagdish Indaji Keshav in that criminal prosecution pleaded guilty and they were accordingly convicted by the trial Magistrate. The trial proceeding against the Petitioner who was accused No. 1 therein. The learned Additional Chief Metropolitan Magistrate by his order dated July 30, 1975 acquitted the Petitioner. Aggrieved by this Order, the Customs Department preferred an. appeal to this Court being Criminal Appeal No. 744 of 1978 and this Court vide its Order dated March 18, 1980 dismissed the appeal and confirmed the Order of acquittal. 8. At this stage, we may point out that the first order made by the Additional Collector in the adjudication proceedings is dated 15th October, 1971 much prior to the order of acquittal made by the Trial Magistrate i.e. on July 30, 1975. It is true that the Appeal before the Central Board of Excise and Customs came to be disposed of after the order of acquittal made by the Trial Court. It is pertinent to note that the Central Government vide its order dated 7, 1978 dismissed the Revision Application and the present Petition under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 2 and 3. These being very material lacunae in the evidence of the prosecution, it is difficult to come to an irresistible conclusion that the amount of Rs. 83,100/- found with accused No. 1 was the price paid to him for the purchase of 400 Tolas of gold by accused Nos. 2 and 3 "............. Accused No. 1 has not confessed that the amount of Rs. 83,100/- was paid for the price of gold. What he has stated is that Baba gave him the amount for keeping it for an hour or so. We are in agreement with the trial Court that the prosecution has failed to bring home the charge against accused No. 1 and the trial Court was right in acquitting accused No. 1 we are also in agreement with the trial Court that the prosecution has failed to prove that the transistor was smuggled property". Relying upon this finding Shri Parkar urged that it would not be open to the Custom Authorities to adjudicate upon the very same facts and record inconsistent findings. He therefore, submitted that the proceedings before the Customs Department must be held to be barred by the principle of issue estoppel. In support of this contention Shri Parkar heavily relied upon the Judgment of Kerala High Court in Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as not in consonance with the principles of natural justice. The Madras High Court further held that where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish a person. It further held that this is a basic principle of jurisprudence, and it makes no difference that the departmental authority acts before the criminal proceedings or after it and the Court, in exercise of the jurisdiction under Article 226 of the Constitution, would be justified in striking down the action based on such findings, as not in consonance with principles of natural justice. According to Madras High Court, this course would give rise to grave anomalies. Relying upon these principles, Shri Parkar urged that since the Petitioner has been acquitted on merits by the Trial Court and said acquittal has been confirmed by this Court, the Customs Department cannot reach contrary findings in adjudication proceedings as it would lead to anomalous situation. This argument must be rejected in view of the Judgment of the Division Bench of this Court in Miscellaneous Petition No. 85 of 1978 (Chandurkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect position as to the effect of the failure of a criminal prosecution on a departmental enquiry". Relying upon this passage, Shri Parkar again reiterated the argument that the present adjudication proceedings and the findings recorded therein must be held to be barred by principles of re judicate and/or issue estoppel. The facts of this reported Judgment show that after termination of criminal proceedings, departmental action was initiated and in that context the principle of issue estoppel was held applicable. In the present case before us adjudication proceedings were initiated earlier and in a subsequent criminal trial petitioner was acquitted. In our opinion, at any rate, principle of issue estoppel is not applicable to the adjudication proceedings. 11. Turning to the unreported Judgment of this Court in Misc. Petition No. 85 of 1978 a direct question fell for consideration in connection with the ambit and powers of the Customs Department in initiating adjudication proceedings under Sections 111 112 of the Customs Act and consequential order of confiscation under Section 121 of the Customs Act and also penalty under Section 135 of the Customs Act. The facts of this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Customs Officer that does not affect the liability to punishment under the provision of Chapter XVI or under any other law. We already reproduced the provisions of Section 135 make it pointedly clear that the power to prosecute under Section 135 is without prejudice to the action which may be taken independently under the provisions relating to confiscation and penalty. Now, it cannot be the argument that while independent powers of making an order of confiscation and penalty can be made by the appropriate officer of the Customs, irrespective of a prosecution under Section 135 being resorted to or not, in case there is a prosecution and there is an acquittal, the power expressly bestowed under Section 112 must be treated as ineffective. Unless we are able to held that even in spite of the express provisions of Sections 112 and Section 127, in case there is an acquittal in prosecution instituted under Section 135, their powers cannot be exercised the contention on behalf of the Petitioner could not be accepted. We see no warrant for the view that there is a prohibition against the Customs Officers to perform their statutory functions and exercise their statutory power under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 85 of 1978 (supra) and this Court has observed as follows: "It is now well established that in domestic enquiries the enquiry authorities and statutory authorities under the relevant Acts will be sole judges of facts, and sufficiency of evidence cannot be urged as ground for interference with the validity or the legality of the orders of the Departmental Authorities. If there is evidence in support of the finding, then it will not be permissible for this Court to undertake the task of reappreciating the evidence, unless of course it is possible for the Petitioner to show that the finding is really based on no legal evidence with the result that the finding becomes infirm". Thus, this submission again cannot be accepted. 14. Lastly, it was urged by Shri Parkar that the amount of penalty imposed upon the Petitioner is too heavy especially in view of the explanation given by the Petitioner that the said amount was deposited by Dharamchand with him by way of safe custody. We do not see any substance in this contention. This Petition has no substance and the same deserved to be dismissed. Accordingly, Rule is discharged. However, there will be no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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