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2001 DIGILAW 483 (CAL)

GOVINDA RAM JALAN v. BHOLANATH PAL

2001-08-07

AMIT TALUKDAR

body2001
A. TALUKDAR, J. ( 1 ) SEEKING to quash the proceedings of case No. C-167 of 1990 pending before the learned Metropolitan Magistrate, 9th Court, Calcutta and for setting aside the Order dated July 20, 2000 passed by the said learned Magistrate thereby framing a charge under section 85 (i) (ii) (a) 85 (i) (iii) (a)/ 85 (i) (iv) (a) of the Gold Control Act, 1968 and under section 135 (i) (b) (i) of the customs Act, 1962 against the aforesaid petitioner, this application has been taken out on several grounds. Principal amongst them relate to demolition of part cause of action of the Revenue before the Appellate Authority where the Appeal preferred against the adjudication Order by the Revenue was dismissed; exoneration in one forum i. e. , the Adjudication Authority being the Additional Collector of Customs (Preventive); the Criminal prosecution arising out of the same incident was also liable to fail; the petitioner has been facing the agony of the case since March, 1990 which has resulted in the proceeding being oppressive and harassive in nature; such long pendency of the proceeding before the learned Magistrate has eroded the Fundamental Right of the petitioner to a speedy trial as guaranteed under Article 21 of the Constitution of India and the proceeding in the fitness of thing should be quashed and the charge including the entire proceeding should be quashed. ( 2 ) SHRI Susanta Banerjee, learned senior counsel (duly assisted by Abdul Hamid, Ashok Kumar Pandey and Sayandev Sengupta) appearing for the petitioner has strenuously submitted before this Court that the charge framed against the petitioner should be quashed including the entire proceeding simply of the ground that in a parallel forum the version of the prosecution has been disbelieved and was nugated and it was only apposite that the criminal prosecution should also be quashed. The main plinth of Shri Banerjee's argument reposed on this proposition. The main plinth of Shri Banerjee's argument reposed on this proposition. ( 3 ) SHRI Banerjee took much pains to demonstrate his point with regard to the fact that since in the adjudication proceeding which was an offspring of the same set of action which has generated the initiation of the prosecution against the petitioner, having turned in favour of the petitioner; he was also liable to be exonerated from the prosecution as the Revenue's version was disbelieved which by necessary implication impleaded that the other part of actions before the Criminal Court would also be un-sustainable. ( 4 ) SHRI Banerjee, however, has also argued other ancillary points with regard to the delay, in the long pendency of the prosection and as also that the prosecution case could not establish sufficient materials to sustain the impugned charge and as such, the delay has caused a deleterious effect on the petitioner since the last eleven years. ( 5 ) AS a part of his submission Shri Banerjee has copiously referred to the various provisions of the Customs Act and also the Gold Control Act and has also relied on a decision of the Supreme Court in the case of G. L. Didwania and Another v. Income Tax Officer and Another reported in 1995 Supp (2) SCC 724 on the proposition that where the finding of the appellate Tribunal was conclusive the prosecution could not be sustained. Thereafter, he also relied on another decision of the Supreme Court reported in 1982 Income Tax Report Vol. 133, page 909 in the case of Uttam Chand and Others v. Income Tax Officer, Central Circle, Amritsar on the similar pro-position. ( 6 ) SHRI Banerjee thereafter relied on another decision of the apex Court in the case of P. S. Rajya v. State of Bihar reported in 1996 SCC (Cri.) 897 to substantiate his point that exoneration in departmental proceeding on indentical charge will also entitle the accused for exoneration before the Criminal Court. ( 7 ) LASTLY, Shri Banerjee relied on the decision of Rajesh Kothari and another v. A. S. Bandopadhyay, Superintendent of Customs (Preventive) reported in (2001) 1 Cal. LT 486 (HC) wherein a learned single Judge of this Court on the basis the accused being exonerated by the Adjudicating authority on the basis of the same facts and materials quashed the criminal proceeding. LT 486 (HC) wherein a learned single Judge of this Court on the basis the accused being exonerated by the Adjudicating authority on the basis of the same facts and materials quashed the criminal proceeding. ( 8 ) SUMMING up his argument Shri Banerjee submitted that the petitioner cannot be exposed to double jeopardy as he cannot be tried for the same offence twice having been held not guilty in one. ( 9 ) REFUTING such submissions made on behalf of the petitioner Shri R. K. Chowdhury appearing with Shri Saibal Mondal for the Revenue submitted that there is no basis of the submission made by shri Banerjee firstly, with regard to the question of double jeopardy as exoneration in the departmental proceeding cannot entail ipso facto exoneration before the Criminal Court as both relate to different sets of action as contemplated under the law. ( 10 ) SHRI Choudhury submitted that Tribunal gave the benefit of doubt in favour of the peitioner and the proceedings before the Tribunal entail civil consequence and can have neither any bearing nor any nexus with the criminal case. ( 11 ) SHRI Choudhury submitted by referring sections 110 to 124 of the Customs Act, 1962 and submitted that these are relating to various stage with regard to adjudication, confiscation and issuance of imagination could the same i. e. , the Criminal prosecution as well as the Adjudication proceeding be linked up together having nexus with each other. ( 12 ) ELABORATING his points Shri Chowdhury referred to the decision of Shri Vijoy Kumar Jain and Another v. Sri Subodh Chandra Dutta and Another reported in 1993 C Cr. LR (Cal) 199. By relying on the said decision of a learned single Judge of this Court showed that the adjudication proceeding and criminal proceedings cannot be said to be analogous to each other and one cannot be used against the others in case an order has been passed in either of the said proceedings. ( 13 ) SHRI Chowdhury thereafter also referred to the Supreme Court decision reported in AIR 1970 SC 962 (The Assistant Collector of Customs, Bombay and Another v. L. R. Melwani and Another ). ( 13 ) SHRI Chowdhury thereafter also referred to the Supreme Court decision reported in AIR 1970 SC 962 (The Assistant Collector of Customs, Bombay and Another v. L. R. Melwani and Another ). Shri Chowdhury showed from the said decision that the question of double jeopardy as submitted by Shri Banerjee cannot have any bearing on the issue and has prayed for dismissing the Revisional Application as already charge has been framed. ( 14 ) OUTLINING his submission the learned counsel for the Revenue further argued that section 135 of the Customs Act, 1962 specifically shows with regard to the power of prosecution by the Department and by any analogy the question of exoneration in the Adjudication Forum, if at all, cannot operate as a bar to prosecution in the Criminal Forum. Shri Chowdhury for the Revenue also read out from the penaltimate paragraph of the order passed by the Collector of Customs (Appeals) which is appearing at page 22 of the Revisional Application and showed that the collector of Customs (Appeals) who was hearing the Appeal against the Additional Collector of Customs preferred on behalf of the Revenue dismissed the Appeal as the Collector of Customs (Appeals) did not have any jurisdiction to hear the Appeal and as such, had dismissed the Application and as such, the said decision according to Shri Chowdhury was not on merit. ( 15 ) I have anxiously considered the rival contentions advanced by Shri Banerjee appearing on behalf of the petitioner and by the Revenue and have with captive attention perused the decisions cited at the Bar as also the various provisions of the Statute which have been showed. ( 16 ) LET me now take up the ancillary submissions made on behalf of the petitioner at first. The question of delay as has been canvased by Shri Banerjee does not impress me at all since notwithstanding the fact that this is a case of 1990. Charge was only framed on 25. 7. 2000 and immediately thereafter on 31. 10. 2000 the petitioner has moved this Court and obtained an order of stay of all further proceedings by a learned single Judge and since then the matter has been kept pending. Charge was only framed on 25. 7. 2000 and immediately thereafter on 31. 10. 2000 the petitioner has moved this Court and obtained an order of stay of all further proceedings by a learned single Judge and since then the matter has been kept pending. Now, the question is since the charge was only framed towards the tail end July, 2000 it is the beginning point of the formal trial and keeping in mind the caution sounded by the Hon'ble apex Court in the case of V. K. Agarwal v. Vasant Raj Bhagwanji Bhatia and Ors. reported in 1988 Cri. LJ page-1106. Solely on this ground order for quashing for delay cannot be considered by any Court of law. ( 17 ) THE other question as to whether the prosecution has degenerated into a weapon of harassment of the petitioner cannot be decided at this stage as already he has been arrayed to answer the Charge as stated above. Now to the main point. ( 18 ) IN order to better appreciate, it is necessary to refer to the substratum of the charge of the two Acts in connection with which the petitioner have been arraigned to answer thereof. ( 19 ) FIRSTLY, section 135 (1) (b) (i) of the Customs Act, 1962 reads as follows :"135. Now to the main point. ( 18 ) IN order to better appreciate, it is necessary to refer to the substratum of the charge of the two Acts in connection with which the petitioner have been arraigned to answer thereof. ( 19 ) FIRSTLY, section 135 (1) (b) (i) of the Customs Act, 1962 reads as follows :"135. Evasions of duty or prohibitions.- (1) without any 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, seling 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) in the case of an offence relating to any of the goods to which section 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 :" ( 20 ) THE very opening words of the said section postulates that the provisions of the penal section 135 contained in Chapter XVI of the Customs Act, 1962 relating to offences and prosecution stipulates that it has a preliminary clause that the said section would be applicable without prejudice to any action that may be taken under the said Act; in other words that notwithstanding any other action that may be contemplated under the said Act the provisions of section 135 will stand apart distinguished from any other proceeding. ( 21 ) SECONDLY, the provisions of section 85 (1) (iv) (a) of the Gold Control Act, 1968 reads as follows:"section 85. Punishment for illegal possession, etc, of gold. ( 21 ) SECONDLY, the provisions of section 85 (1) (iv) (a) of the Gold Control Act, 1968 reads as follows:"section 85. Punishment for illegal possession, etc, of gold. (1) "however, in contravention of the provisions of this Act or any rule or order made thereunder,- (iv) sells, delivers, transfers or otherwise disposes of, or agrees to sell, deliver, transfer or otherwise dispose of, or exposes or offers for sale, delivery, transfer or disposal, any primary gold, or (v)* * * * * * * * * * * * * * * * * * * * * * * * * (vi)* * * * * * * * * * * * * * * * * * * * * * * * * (vii)* * * * * * * * * * * * * * * * * * * * * * * * * (viii)* * * * * * * * * * * * * * * * * * * * * * * * * (xi)* * * * * * * * * * * * * * * * * * * * * * * * * (x)* * * * * * * * * * * * * * * * * * * * * * * * * shall, without prejudice to any other action that may be taken under this Act, be punishable- (a) if the offence is under clauses (i), (ii), (iii), (iv) or (viii) the offence under clause (viii) being a contravention of sub-section (3) of section 55 and the value of the gold involved therein 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 for a term of less than six months;" ( 22 ) READ in just a position with the said provision of section 85 in Chapter XV of the Gold Control Act, 1968 housing the various provisions with regard to the offence and trial is chapter XIV which also houses the provisions of adjudication and appeal. Both Chapter XIV and Chapter XV of the Gold (Control) Act, 1968 are independent Chapters one housing various provisions with regard to adjudication and Appeals and another with regard to the offences and their trials and there is no interlinking passage between the two houses spread out within the campus of the Gold Control Act they stand separate, erect of each other and each of the said Chapters accommodates various provisions which are extremely bad neighbours of each other. The Gold Control Act provides for confiscation of the articles, as well as for imposition of penalty including launching of the prosecution against the accused under section 85 of the Gold Contral Act. Imposition of penalty and confiscation of goods are jealous mistress of the concept of prosecution and cannot be said to have any intimate repport with each other. ( 23 ) THE decisions of the Supreme Court in the case of: (A) Uttam Chand and Others v. Income-Tax Officer, Central Circle, Amritsar (supra) and (b) G. L. Didwania and Another v. Income-Tax Officer and Another (supra) are in my humble opinion cannot be said to have any bearing on the present case. Those related to the Income-Tax act. ( 24 ) IN the Income-Tax Act there is a specific provision in section 279 (1a) which reads as follows:" (1a) A person shall not be proceeded against for an offence under section 276c or section 277 in relation to the assessment for an assessment year in respect of which the penalty imposed or impossible on him under clause (iii) of sub-section (1) of section 271 has been reduced or waived by an order under section 273a. " ( 25 ) AS such, there is an interlinking provision in the income-Tax Act with regard to the adjudication proceeding which is blisfully lacking in either the Gold (control) Act or the Customs Act. The said two decisions (a) Uttam Chand and others v. Income-Tax Officer, Central Circle (supra) and (b) G. L. Didwania and Another v. Income-Tax Officer and Another (supra) relating to the Income-Tax Act as in my most humble view does not come to the rescue of Shri Banerjee. ( 26 ) THE decision of P. S. Rajya v. State of Bihar (supra) was also on an entirely different proposition and cannot be squarely applicable to retrieve the petitioner from the charge. ( 26 ) THE decision of P. S. Rajya v. State of Bihar (supra) was also on an entirely different proposition and cannot be squarely applicable to retrieve the petitioner from the charge. ( 27 ) WITH regard to the decision of Rajesh Kothari and Another v. A. S. Bandopadhyay, Superintendent of Customs (Preventive) (supra) although the said decision relates to one under the Customs Act and can be said to have similar bearing with this case but as I am afraid the earlier decision on this point in the case of Sri Vijoy Kumar Jain and Another (supra) also by another learned single Judge of this Court was not taken into account. The said decision of Shri Rajesh Kothari and Another (supra) was a judgment per incurium and is not binding on this Court and I am with a heavy heart unable to persuade myself to the ratio laid down in the said decision as also otherwise since it emerges that there is a non obstante clause as the opending words of section 135 of the Customs Act read: "evasions of duty or prohibitions.- (1) without prejudice to any action " which enjoins that a prosecution under the Customs Act is a separate and may be in addition and never any subjugation to the other adjudicatory procedures set out under the Customs Act. ( 28 ) SIMILARLY, under the Gold (Control) Act as indicated here-in-above the provisions of adjudication and the penal provisions stand apart from each other and the provisions with regard to adjudication and penalty and as well as the provisions with regard to offences and prosecution are not complementary to each other but are of mutually exclusive of each other. ( 29 ) AS such, the Court cannot act as unwanted match maker and try to marry off the two provisions to distinct and spurning couples by accepting the proposition of Shri Banerjee that if a particular couple of the said set live up to the allegation automatically the other couple should also concede. ( 30 ) THIS is not the legislative intent in the Customs Act as well as in the Gold Control Act and in the event, if the Court tries to iron out the creases borrowing fuel from Shri Banerjee's argument it will in the process tear the basic fabric instead of removing the creases. ( 30 ) THIS is not the legislative intent in the Customs Act as well as in the Gold Control Act and in the event, if the Court tries to iron out the creases borrowing fuel from Shri Banerjee's argument it will in the process tear the basic fabric instead of removing the creases. ( 31 ) I find much substance in the argument of Shri Chowdhury for the Revenue and the decisions cited by him Sri Vijoy Kumar Jain and Another (supra) is most apposite in the fact situation of the instant case. Similarly, the decision placed by the Revenue in the case of The Assistant Collector of Customs, Bombay and Another v. L. R. Melwani and Another (supra) is also squarely applicable in the fact situation. I am in complete agreement with the version of the Revenue and with due respect to Shri Banerjee am unable to persuade myself to buy his argument. ( 32 ) THE contention of Shri Banerjee with regard to the question of double jeopardy or autro fois acquit also in my view not applicable in the present situation simply because in order to incur the wrath of the provision of double jeopardy or the concept of autro fois acquit which has been sublimed in the hallowed precincts of clause (2) of Article 20 of the Constitution of India that there has to be an offence in connection with which no person be prosecuted and punished for the same offence more than once. I lay emphasis on the word offence as rightly pointed out on behalf of the Revenue that the provisions with regard to adjudication, penalty, show-cause and appeal in both the Acts are of civil consequence it cannot be that the absolving some one from the purview of the adjudication proceeding which cannot be termed as offence will also eschew the tantacles of law within the purview of the prosecution wing. Although these two phases with regard to the adjudication and prosecution are different limbs of the said branch yet the fact remains that they are different limbs after all even if from the same concept. Although these two phases with regard to the adjudication and prosecution are different limbs of the said branch yet the fact remains that they are different limbs after all even if from the same concept. ( 33 ) THE very latest two decisions of the Supreme Court which I am inclined to refer to in the case of Tukaram Annaba Chavan and Another v. Machindra Yeshwant Patil and Another reported in 2001 (1) Supreme page 549 and also in the case of Commissioner of Income-Tax, Mumbai v. Bhupen Champak Lal Dalal and Another reported in JT 2001 (3) SC 271 even with utmost circumspection applying my mind independently to the ratio of the said two decisions I cannot fall in line with the legal position tried to be built up by Shri Banerjee. While the decision of Tukaram Annaba Chavan and Another v. Machindra Yeshwant Patil and Another (supra) relates to suspension of a criminal proceeding under sections 463, 177 and 181 read with section 34 of the Indian Penal Code pending the proceedings before the charity Commissioner in connection with which the forged documents were used whereas in the case of Commissioner of Income-Tax, Mumbai v. Bhupen Champak Lal Dalal and Another (supra) the Spreme Court had held that the conclusions arrived at by the Appellate Authorities have a relevance bearing upon the conclusion to be arrived at in the criminal proceeding and the criminal proceeding was stayed, awaiting decision of the Appellate Authority also in my humble view cannot save the petitioner since charge has already been framed and the outline of the proceeding being different the said two decisions, even if a very charitable view of Shri Banerjee is adopted also cannot be of any help to him. ( 34 ) IN the light of the various discussions held here-in above I do not find any merit in this Application and accordingly, have no alternative but to dismiss the same. However, it is directed that the learned trial Court would proceed with the trial with utmost despatch and seek to conclude the same with earnest endeavour. Application accordingly dismissed. No order as to costs. Application dismissed.