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1979 DIGILAW 1 (GUJ)

A. K. SINGH v. BHAGWANJI JETHALAL KAGADADA

1979-01-10

M.K.SHAH

body1979
M. K. SHAH, J. ( 1 ) ). This Special Criminal Application under Article 227 of the constitution is preferred by the Assistant Collector of Customs Rajkot proving that the order passed below Exs. 23 and 24 by the learned Judicial Magistrate First Class Rajkot in Criminal Case No. 624/73 be quashed and set aside. ( 2 ) A few facts giving rise to the passing of the said orders may be briefly stated as follows: on the 4th of February 1971 respondent No. 1 i. e. original accused No. 1 was accosted near Mochi Bazaar Bus-stand and from his possession were found gold Lagadies bearing foreign marks weighing 3573. 440 grams valued at Rs. 64 0 Investigation further revealed that respondent No. 2 i. e. original accused No. 2 was the owner of the gold which was found from accused No. 1. The gold was seized under a panchnama. After further investigation charges were preferred against the two accused for the offences under sec. 135 of the Customs Act (the Act) and sec. 85 of the Gold Control Act. While the proceedings were pending accused No. 2 submitted an application (Ex. 23) on 7th May 1976 before the learned Magistrate First Class Rajkot praying that the proceedings be stayed on the ground that adjudication proceedings had been already instituted by the Customs Department and an adjudication order was passed in respect of the very gold and the matter was pending at an appellate stage before the appellate authority of the Customs Department. He therefore prayed that pending the disposal of the said appeal in the Departmental proceedings the Criminal proceedings before the learned Magistrate be stayed. The learned Magistrate by his order of the very date i. e. 7-5-76 ordered the stay of the Criminal Proceedings till the decision of the appellate authority namely Appellate Collector of the Customs at Bombay. ( 3 ) THEREAFTER on 18th of March 1978 the complainant submitted an application Ex. 24 inter alia stating that the appellate authority had already decided the matter on 11-11-77 and that therefore the Criminal proceedings which were stayed should be proceeded with The accused contested the said application and the learned Magistrate by his order dated 17-7-78 rejected the said application of the complainant. ( 4 ) IT is this order on Ex. 24 as also the previous order on Ex. ( 4 ) IT is this order on Ex. 24 as also the previous order on Ex. 23 passed on 7-5-76 which are challenged by the petitioner-original complainant by this Special Criminal Application. ( 5 ) MR. A. J. Patel the learned Advocate appearing for the Customs authorities submits that the learned Magistrate in the instant case has erred in staying the proceedings and in refusing to proceed with the criminal case on the ground that the Departmental proceedings with regard to adjudication are still pending. It is submitted by him that the Criminal proceedings under sec. 135 of the Act as also under sec. 85 of the Gold Control Act are distinct different and independent proceedings as compared to the Departmental Proceedings under the Act and both the proceedings operate in two distinct fields. It was therefore wrong on the part of the learned Magistrate to stay the criminal proceedings and to have refused to proceed with the criminal case on the ground that the departmental proceedings were pending. ( 6 ) THE prosecution which was launched against the accused is for a substantive offence under sec. 135 of the Act as also under sec. 85 of the Gold Control Act. Sec. 135 of the Act itself starts with the words without prejudice to any action that may be taken under this Act and then the relevant part of the section with which we are concerned namely sec. 135 (1) (b) provides that if any person acquires possession of or is in any way concerned in carrying removing dipositing 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 sec. 111 he shall be punishable in the case of an offence relating to any of the goods to which sec. 123 applies and the market price whereof exceeds one lakh of rupees with imprisonment for a term which may extend to seven years and with fine; provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be less than one year; and in any other case with imprisonment for a term which may extend to three years or with fine or with both. ( 7 ) NOW so far as the Departmental proceedings are concerned the relevant provisions are contained in Chapter XIV and XV of this Act. Sec. 111 provides for confiscation of improperly imported goods etc. and sec. 112 relates to penalty. Sec. 125 gives option to the party concerned to pay a fine in lieu of confiscation and sec. 126 provides that on confiscation property will vest in Central Government. Sec. 127 contains important provisions to the following effect: "the award of any confiscation or or penalty under this Act by an officer of customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of Chapter XVI of this Act or under any other law" it is to be noted that sec. 135 is contained in Chapter XVI. Chapter XV provides for an appeal and a revision which lies to the appellate Collector of Customs and to the Central Board of Revenue respectively It will be thus seen that the proceedings are of two different categories. They operate in two different fields and they are independent. Proceedings under sec. 135 of the Act are criminal proceedings and as the section itself states they are without prejudice to any other action which may be taken under other provisions of the Act. Proceedings for confiscation and penalty envisaged in secs. 111 and 112 are departmental proceedings to be preferred by the Customs authorities and there are provisions for appeals and revisions against the orders which could be passed by the authorities concerned. As specifically provided by sec. 127 this is also independently of any action which could be taken for punishment by virtue of the provisions which are contained in Chapter XVI in which chapter is included sec. 135 providing for criminal proceedings. ( 8 ) I am fortified in the view which I am taking by an unreported decision of the High Court of Madras which has been cited by the learned Advocate appearing for the petitioner. The same is E. Latheef v. Assistant Collector of Central Excise etc. , Criminal Misc. Petition Nos. 135 providing for criminal proceedings. ( 8 ) I am fortified in the view which I am taking by an unreported decision of the High Court of Madras which has been cited by the learned Advocate appearing for the petitioner. The same is E. Latheef v. Assistant Collector of Central Excise etc. , Criminal Misc. Petition Nos. 2761 and 5297 of 1977 decided on 12th day of October 1977 In that case an appeal was pending before the Central Board of Excise and Customs New Delhi in respect of levy of penalty by the Assistant Collector Central Excise which was sought to be levied under Rules 151 223 and 223 of the Central Excise Rules 1944 The application was made to stay all the further proceedings in the criminal case on the file of the learned Judicial Magistrate First Class Tiruchirapalli in respect of the alleged clandestine removal of goods liable to duty without payment of duty in contravention of the provisions of Rule 144 of the Central Excise Rules 1944 Negativing the contention that criminal proceedings should be stayed till the appeal before the Central Board of Excise and Customs is decided it was observed as follows by the Madras High Court:" I am unable to accept this contention of the accused The proceedings before the Central Board of Excise and Customs have no bearing on the case to be tried by the learned Magistrate. They are parallel proceedings operating in different areas which do not meet each other at any point. the courts are exercising powers independentiy under the provisions of the Code of Criminal Procedure and are not concerned with the finality of the decisions of the Department. Therefore the proceedings in C. C. No. 598 of 1977 on the file of the judicial First Class Magistrate. Tiruchirapalli cannot be stayed". ( 9 ) MR. Shah the learned Advocate appearing for Respondent No. 2 has not been able to challenge the legal position as it emerges from the consideration of the provisions of the Act and the result therefore will be the following order: the orders passed by the learned Judicial Magistrate First Class Rajkot below Exs. Tiruchirapalli cannot be stayed". ( 9 ) MR. Shah the learned Advocate appearing for Respondent No. 2 has not been able to challenge the legal position as it emerges from the consideration of the provisions of the Act and the result therefore will be the following order: the orders passed by the learned Judicial Magistrate First Class Rajkot below Exs. 23 and 24 in Criminal Case No. 694 of 1973 are hereby quashed and set aside and it is directed that the learned Magistrate shall proceed with the said Criminal case irrespective of the fact that the departmental proceedings with regard to penalty and confiscation are still pending. Rule made absolute accordingly. Order accordingly. .