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2004 DIGILAW 46 (CAL)

SABBIR A. ARENPURWALA v. B. K. MOULIK

2004-01-21

ASIT KUMAR BISI

body2004
A. K. BISI,J. ( 1 ) THE instant revisional application under sections 401 and 482 of the Code of Criminal Procedure has been preferred by the petitioner Sabbir A. Arenpurwala against the order dated 3. 6. 1994 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in Case No. C/5/92 under section 135 of the Customs Act, 1962 (hereinafter referred to as the Act ). ( 2 ) BY the order impugned, the learned Metropolitan Magistrate, 17th Court, Calcutta, rejected the petition filed by the petitioner/accused No. 2 on 2. 2. 93 praying for dropping the case against him and discharging him from the bail bond. ( 3 ) IT appears from the materials on record that the case under section 135 (1) (b) (ii) of the Act was initiated against the present petitioner along with another at the instance of the complaint, Sri B. K. Moulik, Superintendent of Rummaging Intelligence, Customs House, Calcutta, presently figuring as opposite party No. 1. ( 4 ) IT has been alleged by the complaint that on 26. 6. 1989, one Nani Shah, who is accused No. 1 in the criminal proceeding was intercepted with two wooden crates by the Customs Officer at Howrah Station and he was brought to the Customs House along with the said two wooden crates. The said crates were opened in presence of independent witnesses and found to contain 1756 pieces of ball bearings of foreign origin. The said Nani Shah was unable to produce valid document in support of possession, acquisition or legal importation of the said goods and consequently those goods were seized under section 110 of the Act. It has been further alleged by the Customs Authority that the said Nani Shah made voluntary statement to the Customs Officer to the effect that those goods belonged to the present petitioner and the petitioner gave those crates to him for carrying the same to Howrah Station. Subsequently, the Customs Officer searched the shop styled as ?m/s. Honesty Bearing Stores? at 71-A, Netaji Subhas Road, Calcutta-1, of which the petitioner is a partner and seized 49 pieces of ball bearing of foreign origin under section 110 of the Act as the present petitioner could not produce any valid document in support of possession or acquisition thereof. Subsequently, the Customs Officer searched the shop styled as ?m/s. Honesty Bearing Stores? at 71-A, Netaji Subhas Road, Calcutta-1, of which the petitioner is a partner and seized 49 pieces of ball bearing of foreign origin under section 110 of the Act as the present petitioner could not produce any valid document in support of possession or acquisition thereof. ( 5 ) THE materials on record reveal that an adjudication proceeding was started by the Customs Authority against the present petitioner and two others and show-cause notice was served by the Customs authority upon the present petitioner. In his reply to the said show-cause notice, the petitioner stated that he purchased those ball bearings from M/s. Calcutta Bearing Stores and produced Bill No. 1153 dated 14. 6. 1989 in proof of such purchase. Thereafter upon considering the materials the Deputy Collector of Customs, Preventive (West Bengal) by order No. 14/92 dated 12. 4. 1991 directed confiscation of the goods seized at Howrah station and imposed a penalty of Rs. 10,000/- upon the present petitioner. ( 6 ) BEING aggrieved by the aforesaid order of penalty, the petitioner preferred an appeal whereupon the Collector of Customs (Appeals) being the Appellate authority set aside the order of imposition of penalty on the appellant, presently the petitioner, and allowed the appeal by order in Appeal No. Prev (Cust)-10/92 dated 6. 5. 92. ( 7 ) MR. Tapan Deb Nandi, learned advocate for the petitioner, has contended that since the adjudication proceeding initiated by the Customs authority ultimately terminated in favour of the petitioner, continuance of the criminal proceeding on the self-same facts would amount to a misuse of the process of law and as such the said criminal proceeding initiated against the present petitioner is required to be quashed. He has cited the case of Gopal Das Mundar v. Assistant Collector of Customs and Anr. reported in 2002 (1) CHN 612 wherein at page 613 para 3, the Division Bench of this Court observed as follows:we do not think that the determination of the authority concerned under section 111 of the Customs Act one way or the other can be an absolute legal bar to any subsequent prosecution under the Customs Act for the same set of acts or omissions. But it is one thing to have a power under the law and is entirely a different thing how that power should properly be exercised. ( 8 ) RELIANCE has been placed on the decision of the Supreme Court reported in Uttam Chand v. Income Tax Officer (1982) 133 ITR page 909 where the Supreme Court also disapproved the prosecution of the accused under the criminal law after the accused was found not to have violated any provision in the departmental proceedings. In Gopal Das Mundar (supra) their Lordships further held:as we have already indicated, we should not be taken to have ruled that we hold that such a prosecution cannot lie. But all that we say that, once it appears, and it has not been disputed by the learned counsel appearing for the Customs authority, that the departmental proceedings initiated by that department itself on the same set of facts has terminated in favour of the accused, it would amount to a misuse of the process of law to prosecute the accused for the same thing under the criminal law. Mr. Talukdar has also not disputed that the proposed prosecution, so far it relates to the Customs Act, would be under the same set of facts, circumstances and materials. That being so, we are inclined to hold that the prosecution, so far it relates to the charge under section 135 (1) (b) of the Customs Act, should be quashed. ( 9 ) MR. Himangshu De, learned advocate appearing for the Customs authority has cited two single Bench decisions of this Court viz. , Govind Ram Jalan v. Sri Bholanath Pal and Anr. reported in 2001 C Cr LR (Cal) 409 and Sri Radheshyam Kejriwal v. The State of West Bengal and Anr. reported in 2001 C Cr LR (Cal) 444 and contended that even if the adjudication proceeding ended in favour of the petitioner, criminal proceeding initiated against him is still maintainable. He has drawn my attention to a non-obstante clause as the opening words of section 135 of the Act enjoin that a prosecution under the Customs Act is a separate one and it may be in addition never any subjugation to the other adjudicatory procedures set out under the Act. ( 10 ) MR. Nandi has cited Uttam Chand and Ors. ( 10 ) MR. Nandi has cited Uttam Chand and Ors. v. Income-Tax Officer, Central Circle, Amritsar reported in (1982) 133 ITR 909 which, as already stated, has been relied on by the Division Bench of this Court in Gopal Das Mundar (supra ). ( 11 ) IN view of the ratio of the decision of the Supreme Court in Uttam Chand and Ors. (supra) and the decision of the Division Bench of this Court in the case of Gopal Das Mundar (supra), it has now become settled principle of law that if it is not disputed that the departmental proceeding initiated by the department concerned on the same set of facts has terminated in favour of the accused, continuance of the criminal proceeding against the same accused on the self-same facts under the criminal law is a sheer misuse of the process of law and that being so, such proceeding is required to be quashed. ( 12 ) IN the instant case, I find that the decision of the Division Bench of this Court in Gopal Das Mundar (supra) applies with full force and the same will prevail. ( 13 ) VIEWED in this perspective, I find that the respective decisions of the single Bench of this Court in Govind Jalan (supra) and Sri Radheyshyam Kejriwal (supra) respectively, as cited by Mr. De, have got no manner of application in the facts and circumstances of the case at hand. ( 14 ) FOR the foregoing reasons, I allow the revisional application and set aside the impugned order dated 3. 6. 94 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in C/5/92 under section 135 of the Customs Act, 1962. The proceeding in Case No. C/5/92 under section 135 of the Customs Act, 1962 pending in the Court of learned Metropolitan Magistrate, 17th Court, Calcutta, against the petitioner, Sabbir A. Arenpurwala, be quashed. ( 15 ) LET a copy of this judgment be set down to the learned Court below forthwith. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible. Application allowed .