Harbhajan Kaur vs Union Of India And Ors.
1993 Latest Caselaw 558 Del

JUDGMENT

S.C. Jain, J.

(1) Both these petitions i.e. Cr.M(M) 1659 of 1991 and Cr.M(M) No. 2937 of 1992 have arisen out of the same facts and the questions of law in both these petitions are the same and so I propose to dispose of both these petitions by this common order.

(2) The facts giving rise to these petition are that on 23.7.1984 the customs officers had intercepted one Auto Rickshaw No.DLR 8981 on Sadhu Vaswani Marg.Opp.Springdales School, New Delhi, in which one person, later on known as Sat Pal Arora, was traveling carrying two zipper bags and on search of the said two bags goods alleged to be of foreign origin were found. As a follow-up action on the basis of disclosures allegedly made by Sat Pal Arora, the residential premises at 16/96 Subhash Nagar, New Delhi in occupation of Sunil Kumar Sharma were searched and as a result of search, miscellaneous goods of foreign origin including wrist watches totally valued at Rs. 1,67,440 were recovered.

(3) On the basis of the said recoveries and the statements made by Sat Pal Arora, Sunil Kumar Sharma and Ajay Kumar, the premises of the petitioner, Harbhajan Kaur were searched in Village Somana Bhau, District Karnal, Haryana, but nothing incriminating was found.

(4) Her statement under Section 108 of the Customs Act was recorded and as per her statement, she arrived at Delhi Airport 01122/23.7.1984 night Along with 10 children by Air France flight from Bangkok. She and the children cleared the baggage through green channel by declaring that the same contained books, food items and personal effects only, but actually she knew that her husband-sent contraband goods of foreign origin through her. Those goods she delivered to Ajay Kumar, who had come to receive her. He took her to Subhash Nagar in a bus and stayed there during the night. She got Rs. 10,000 from him for those goods.

(5) Sunil Kumar Sharma in his voluntary statement dated 24.7.84 admitted the recovery and seizure of the smuggled goods from his residential premises and named Harbhajan Kaur as the person concerned with the smuggled goods.

(6) On the basis of this statement allegedly made by them the petitioners were arrested and a complaint under Sections 132and 135(1)(a) of the Customs Act and Section 5 of Import and Export [Control] Act,1947 was lodged against Sat Pal Arora, Sunil Kumar Sharma, Ajay Kumar and this petitioner, Harbhajan Kaur. Simultaneously, departmental proceedings were also initiated against them and the Additional Collector of Customs confiscated the seized goods and imposed a penalty of Rs. 50,000 on her and on the other petitioner Sunil Kumar Sharma he imposed a penalty of Rs. 20,000.

(7) The order passed by the Additional Collector of Customs was challenged by filing an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal being No.C/2963/89-NRB. That appeal was accepted by the Tribunal vide order No. A/I 87/91- Nrb and the order passed by the Additional Collector of Customs was set aside and the penalty imposed upon her was also set aside. Similarly, in the case of Sunil Kumar Sharma, vide order No.A/73/91-NRB, the Tribunal accepted the appeal and set aside the order in so far as it related to the penalty imposed on this petitioner.

(8) However, in the criminal complaint learned A.C.M.M. charged all the accused persons including these petitioners, Harbhajan Kaur for offences under Sections 132 and 135(I)(a) of the Customs Act; and Section 135(I)(b) of the Customs Act against the other petitioner, Sunil Kumar Sharma.

(9) Both these petitioners have requested for quashing of the proceedings against them in pursuance of the criminal complaint for offences under Sections 132 and 135(1)(b) of the Customs Act under Section 482 Cr.P.C.

(10) Learned counsel for the petitioners submitted that the prosecution of the petitioners on the same set of facts and evidence on the basis of which the departmental adjudication proceedings were initiated and finalised resulting in the exoneration of the petitioners is improper, unjust and misuse of process of law. According to the learned counsel, it will be unjust to require the petitioners to go through the entire process of prosecution and to allow the prosecution proceedings to continue will amount to misuse of the process of law. My attention has been drawn towards the various decisions of this Court and also of the Supreme Court in support of this contention that the prosecution under Sections 132, 135(1)(a) and 135(1)(b) of the Customs Act on the same set of facts and evidence is not maintainable and is to be quashed when the appellate authority in the departmental adjudication proceedings found the petitioners innocent and completely exonerated them from the charge of smuggling. As per the learned counsel, the orders of the Tribunal completely exonerated the petitioners from all the charges and the order of imposing penalty by the Additional Collector was set aside and those orders have attained finality and, therefore, the continuation of the prosecution proceedings against these petitioners will amount to an abuse of the process of law.

(11) I earned counsel for the department, Mr. Agarwala argued that the charge has already been framed in this case and appropriate remedy for the petitioners was to challenge the order of framing of the charge under Section 245 Cr.P.C.; and under Section 482 Cr.P.C. these prosecution proceedings cannot be quashed. According to him, the departmental adjudication proceedings and the criminal prosecution are two different proceedings and both of them can continue simultaneously. According to him, if these petitioners were found innocent in the departmental adjudication proceedings, it cannot be said that they will also be acquitted in the criminal proceedings. He stated that the procedure for recording evidence is different in both these proceedings.

(12) This type of question had already arisen in so many cases earlier. In Willi Lemback vs. Rajan Mathur and Another [1993]41 ECC85 (Del) this Court in the similar circumstances of the case ordered the quashing of the criminal proceedings by holding that once the appellate authority found the petitioner innocent and completely exonerated him of charge of smuggling, then the prosecution under sections 132 and 135(l)(a) on the same set of facts and evidence was not maintainable and was liable to be quashed under Section 482 Cr.P.C.

(13) The contention raised by the learned counsel for the department that the petitioners should have taken recourse under Section 245 Cr.P.C. and not to seek quashment of the proceedings was dealt with by this Court in the case of Bhavnesh Kumar @ Pappu vs. Union of India and others [1993] 41 Ecc 108] wherein this contend on was repelled by observing that "asking now the petitioner to invoke the power of the Magistrate under section 245 Cr.P.C. is nothing but a mockery of justice".

(14) In these petitions, it is not disputed that the petitioners were exonerated by the North Regional Bench of C.E.G.A.T. of the charges against them and the orders of imposing penalty upon them were set aside. Those orders are still subsisting and have attained finality.

(15) Relying upon the decisions of this Court in the case of Willi Lemback vs. Rajan Mathur and Another and Bhavnesh Kumar @ Pappu vs. Union of India and others (supra); and the decision of the Supreme Court in the case of Uttam Chand and Others vs Income Tax Officer, Central Circle, Amritsar , I consider it to be a fit case to exercise the power under Section 482 Cr.P.C. for quashing the criminal proceedings pending against these petitioners. Accordingly, the criminal proceedings pending against the petitioner in Cr.M(M) No. 1659 of 1991, Harbhajan Kaur under Section 132, 135(l)(a)ofthe Customs Act and against the petitionerinCr.M(M)No.2937 of 1992, Sunil Kumar Sharma under section 135(1)(b) of the Customs Act are hereby quashed. Ordered accordingly.