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TMI Blog2005 (9) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the accused had no liability to rebut any presumption under the said provision. This is because, as ruled by the Apex Court in Gopaldas's case [ 2004 (7) TMI 10 - SUPREME COURT] , it is only after the prosecution has adduced clear evidence of the accused having physically dealt with the offending goods that the accused would assume the burden of proving that they so dealt with the goods without mens rea, i.e, without the knowledge or belief that the said goods were liable to confiscation u/s 111. Thus, for the appellants, the present case stands on a stronger footing than Gopaldas's case wherein the prosecution could prove the fact that the accused was in possession of gold but the presumption of mens rea in relation to the said fact was rebutted by the accused. We have found that the offence charged against the appellants in both the adjudication and prosecution proceedings is substantially the same. Both the cases are based on the same set of facts. The evidence considered by the adjudicating authority and the criminal court is, by and large, the same. After appreciating the evidence, the criminal court acquitted the accused after finding that the charge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector of M/s. Jesudasans Pvt. Ltd.]. The Customs officers also searched the office premises of the company and recovered certain documents. The residential premises of some of the above persons were also searched but nothing was recovered. On the basis of the evidence gathered in the investigations, the department issued a show-cause notice to the appellants and others proposing to confiscate the seized vessel, ball bearings, etc. and to impose penalties on the noticees. The show-cause notice alleged that the vessel had been used for smuggling the ball bearings of foreign origin into India; that on its arrival at Valinokkam S/Shri R. Ravi, Duraiappa and Udayakumar cut open the cavity in the hind part of the vessel by engaging gas cutter; that the gas cylinder and gas torch employed for the purpose were brought in a jeep by Shri N. Ramesh, driver; that 175 boxes were removed from the vessel and loaded on to a lorry by 12 loading workers with the help of Shri N. Suresh; and that one Shri Alagu, who had come with the lorry, returned with the load of 175 boxes of ball bearings at 5.00 a.m. on 17-7-94. It was also alleged that one Shri Ramesh J. Shah of the Singapore-based company from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Managing Director nor any of the Directors of the company had the knowledge that the ball bearings had been concealed in, or removed from, the ship. Accordingly, ld. Commissioner exonerated them from penal liability. In this view of the matter ld. Senior Advocate argued, there was no justification for confiscation of the vessel. After perusing the Commissioner's order, we have found the counsel's submissions to be factually correct. We have also noticed that there is no finding in the impugned order that the company had any such knowledge as above. In the absence of a finding that the vessel was used for smuggling of ball bearings with the knowledge or connivance of the company or its agents, Section 115 of the Act was not attracted. We have accordingly taken the view that the order of confiscation of the vessel under Section 115 is unsustainable. Appeal No. C/69/1999 is allowed. 5. The appellants in the remaining appeals namely S/Shri S. Duraiappa [C/1451/98], R. Ravi [C/1452/98], N. Ramesh [C/1453/98], M. Udayakumar [C/1454/98], N. Suresh [C/1455/98], S. Ramamoorthy (now represented by his legal heirs) [C/1461/98] and M. Muthusingaram [C/1462/98] were some of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings were substantially the same and therefore it would be unjust, unfair and oppressive to penalise the appellants in adjudication proceedings in spite of their acquittal on merits by the criminal court. It was only when a court without evaluating the evidence on record passes a judgment of acquittal on technical grounds that the adjudication proceedings can be allowed to continue against the accused. In this connection, it was pointed out that the criminal court's judgment of acquittal giving the benefit of doubt to the accused could not be equated to a judgment of acquittal on technical grounds. The criminal court's judgment in the present appellants' case is a judgment of acquittal on merits and hence, as per the rulings of the Apex Court, the appellants, after their acquittal on merits by the criminal court, cannot be proceeded against for imposition of penalty in adjudication on the same set of facts and evidence. These arguments of the ld. Senior Advocate were countered by ld. SDR Smt. R. Bhagya Devi, who submitted that the acquittal of the appellants under Section 135 of the Customs Act by the criminal court was not prejudicial to the adjudication proceedings as the two pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal court's judgment carried precedent value. It was also suggested that, in the event of the said judgment being set aside by the appellate court, it was open to the department to revive the present proceedings. In this connection, ld. Senior Advocate relied on the Kerala High Court's judgment in the case of Madras Spinners Ltd. v. Deputy Commissioner of Income-Tax - 1993 (1) K.L.T. 482. 7. We have carefully considered the submissions. The impugned order of the Commissioner of Customs confiscating 1,31,076 ball bearings contained in 824 boxes, under Section 111 of the Customs Act, and imposing penalties on the appellants was passed in adjudication of show-cause notice dated 4-1-1995 issued under Section 124 of the Act. This show-cause notice alleged that the seized goods (ball bearings) had been illicitly imported into India from a foreign country in contravention of Section 11 of the Customs Act read with Section 3(2) of the Foreign Trade (Development Regulation) Act, 1992 and hence the same were liable to confiscation under Section 111(d) of the Customs Act read with Section 10(5) of the FT (D R) Act. It also alleged that the vessel which was allegedly used for the smuggling wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants - and punishable under Section 135 (1)(a)(ii) is not relevant to these appeals which are against penalties only.] The relevant provision is extracted below:- Section 135. Evasion of duty or prohibitions.-(1) Without prejudice to any action that may be taken under this Act, if any person- (a) ..…. (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, he shall be punishable, (i) …….. (ii) in any other case, with imprisonment for a term which may extend to [three years], or with fine, or with both. Obviously, the charge framed against the appellants and others for punishing them on 135 of the Customs Act was in no way different from what was alleged against them in the show-cause notice issued under Section 124 for the purpose of getting them penalised under Section 112 of the Act. All the documents relied upon in the cause notice and considered by the adjudicating authority were also relied upon by the prosecution and considered by the criminal court. The cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onge gold ball weighing 4.5 grams and 1276 grams of gold bearing sand were recovered from his house. The raid was conducted at the appellant's residence on 2-6-85. He was placed under suspension on 3-6-85. Disciplinary proceedings were initiated against him by issuing a charge sheet on 4-6-85. On 3-2-87, the appellant was acquitted in the criminal case with a categorical finding that the prosecution had failed to establish that "raid and recovery" were made at the appellant's residence. In the meantime, the appellant had already been dismissed from service on the basis of disciplinary proceedings initiated against him. On 12-2-1987, the appellant requested for his reinstatement in service in view of his acquittal in the criminal court. This request was turned down by the respondents. The appeal filed against the respondent's decision was rejected by the appellate authority. The appellant then approached the High Court with a Writ petition challenging the validity of the order of dismissal on various grounds. In that Writ petition, he, inter alia, contended that the departmental proceedings and the criminal case against him were based on the same set of facts. The departmental proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be allowed to stand against the order passed by the criminal court acquitting the accused after considering the same set of facts and evidences. But, at what stage was the accused to rebut the presumption? This question was also answered by the court in Gopaldas's case following its earlier decision in Inder Sain v. State of Punjab, (1973) 2 SCC 372. It was held (vide para 18 19 of Gopaldas), on the facts of that case, that, once the prosecution adduced evidence of the accused having been in possession of primary gold, it was up to the accused to rebut the presumption of mens rea by proving that he did not knowingly possess the forbidden goods. In the instant case, the criminal court has held that the prosecution could not prove the charge framed against the appellants by the Customs authorities in terms of Section 135(1)(b), i.e., they failed to show that the appellants had physically' dealt with the ball bearing with the knowledge or belief that these goods were liable to confiscation under Section 111. The court doubted the veracity of the prosecution plea that the accused had physically dealt with 1,31,076 ball bearings recovered from the ship. After examining files relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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