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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 520/2011
% Judgment delivered on:22nd July, 2011
CHINTA DEVI ..... Petitioner
Through:Ms.Sangita Bhayana, Adv.
Versus
RAJESH ARORA AIR CUSTOM OFFICER ..... Respondent
Through:Mr.G.S. Kanojia, Adv.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
SURESH KAIT, J.(Oral)
1. The petitioner was allegedly intercepted on 26.09.2001, at
the IGI Airport, New Delhi, when she was coming from
Hongkong and as a result of the search of her baggage,
5.808KG of white medicinal powder, which on chemical analysis
was found to be Desxamethasone, was allegedly recovered
from the shampoo and talcum powder bottles. It is further
alleged that CIF value of that white powder was ì 4,96,54/- and
the market value was ì 8,71,200/-.
Crl.M.C. No.520 of 2011 Page 1 of 11
2. Ms. Sangeeta Bhayana, ld. counsel for the petitioner
submits that the petitioner has been falsely implicated in the
above mentioned case, as even in her statement recorded
under Section 108 of the Customs Act, 1962 (hereinafter
referred to as “the said Act”), she has clearly stated that she
had no knowledge regarding the concealment of the white
powder in the shampoo and talcum powder bottles.
3. The petitioner has further stated that she did not know
Mohan Chopra, Masterji and Peter who had allegedly given the
plastic bottles in question to her son Karamvir in Hongkong for
delivery to his man outside the Airport. She has also stated in
her statement that she was not aware of the Airlines procedure
and her son had taken her passport and ticket and checked the
baggage together with his own ticket.
4. The ld. counsel for the petitioner states that the medicinal
powder in question was confiscated under Section 111(b) and
(m) of the said Act and penalty was also imposed on the
petitioner and her son by the Additional Commissioner of
Customs.
5. Being aggrieved by the aforesaid order the petitioner filed
the appeal before the Commissioner of Customs(Appeals) who
Crl.M.C. No.520 of 2011 Page 2 of 11
has maintained the confiscation of goods and reduced the
penalty amount imposed on the petitioner to ì35,000/-, vide its
order dated 05.05.2005.
6. Again the petitioner assailed this order by filing the
Revision Petition under Section 129-DD before the Joint
Secretary, to the Government of India, who exonerated her on
the ground that she had no knowledge regarding the
concealment of medicinal powder in the shampoo and talcum
powder bottles.
7. Vide order dated 11.08.2005, the confiscation of goods
was maintained by the Joint Secretary and it was held that it
would be difficult to fully establish mens rea in case of the
petitioner and the Government is of the opinion that the
petitioner cannot be visited with penalty.
8. The Joint Secretary, Government of India, came to this
conclusion on the basis that both the applicants did not at any
stage seem to have any knowledge of the contents, namely,
Dexcamethasone powder in the talcum powder boxes. Lack
and absence of having knowledge, has been clearly in the
statements of both the applicants at the initial stages of seizure
under Section 108 of the said Act. Later the statement of prime
Crl.M.C. No.520 of 2011 Page 3 of 11
accused Shri Kuldip Chopra was recorded under Section 108 of
the said Act which further corroborates this version of the
applicants which stated that both of them had no knowledge
regarding the contents of the talcum powder boxes.
9. The Joint Secretary, concluded that in the absence of any
such knowledge and judicial pronouncements and the
abandonment of goods, it will be difficult to fully establish mens
rea in case of both the applicants and the learned Joint
Secretary was of the opinion that both the applicants cannot be
visited with penalty. Therefore, while confiscation of goods
cannot be assailed and penalty on both the applicants,
therefore, was set aside the order dated 05.05.2005 passed by
the Commissioner of Customs (Appeals).
10. The aforesaid order passed by learned Joint Secretary, has
not been challenged by the Customs, therefore, had attained
finality.
11. The custom department had filed the complaint against
the petitioner for the offences punishable under Section 132
and 135 (1) (a) of the said Act, in the Court of learned
Additional Chief Metropolitan Magistrate, New Delhi. Vide order
dated 18.03.2010, learned ACMM; New Delhi discharge the
Crl.M.C. No.520 of 2011 Page 4 of 11
petitioners on the basis that there would not be any possibility
of conviction of the accused, even the prosecution case brought
on record, till date, remains unrebutted. Accordingly, the
petitioner was discharged.
12. The custom department, being aggrieved by the aforesaid
order dated 18.03.2010 filed a revision before the Sessions
Court, whereby, the learned Additional Sessions Judge vide
order dated 25.11.2010 set aside the order of learned ACMM;
New Delhi and the parties were directed to appear before
learned ACMM; New Delhi on 06.12.2010. Since then, the
matter is pending for adjudication before learned ACMM; New
Delhi.
13. By way of this petition, the petitioner has challenged the
order dated 25.11.2010 and the proceedings pending before
the learned ACMM; New Delhi.
14. Learned counsel for petitioner submits that the petitioner
was exonerated by the learned Joint Secretary to the
Government of India, vide its order dated 11.08.2005, the said
order has attained finality, since the aforesaid order has not
been challenged by the customs.
Crl.M.C. No.520 of 2011 Page 5 of 11
15. Further, learned counsel for petitioner submits that since
the petitioner has been exonerated in the adjudication
proceedings, therefore, he can not be prosecuted in the
complaint filed by the department, under Section 132 and 135
(1) (a) of the said Act.
16. Thus, by way of this petition, she has prayed to quash the
prosecution proceedings pending before the learned ACMM;
New Delhi.
17. The ld. counsel for the petitioner has referred to the
judgment of the Supreme Court in the case of Radheyshyam
Kejriwal vs. State of West Bengal & Anr., JT 2011(2) SC
443 wherein the Supreme Court has upheld the two judgments
of this Court in para 22.1 and 22.2 as under:-
“22.1 The Delhi High Court also considered
this question arising out of a case under
Foreign Exchange Regulation Act, in detail
in the case of Sunil Gulati & Anr. V.
R.K. Vohra [145 (2007) DLT 612], and held
as follows :-
“In case of converse situation namely where
the accused persons are exonerated by the
competent authorities/Tribunal in
adjudication proceedings, one will have to
see the reasons for such exoneration to
determine whether these criminalCrl.M.C. No.520 of 2011 Page 6 of 11
proceedings should still continue. If the
exoneration in departmental adjudication is
on technical ground or by giving benefit of
doubt and not on merits or the adjudication
proceedings were on different facts, it would
have no bearing on criminal proceedings. If,
on the other hand, the exoneration in the
adjudication proceedings is on merits and
the concerned person(s) is/are innocent,
and the criminal prosecution is also on the
same set of facts and circumstances, the
criminal prosecution cannot be allowed to
continue. The reason is obvious criminal
complaint is filed by the departmental
authorities alleging violation/contravention
of the provisions of the Act on the part of
the accused persons. However, if the
departmental authorities themselves, in
adjudication proceedings, record a
categorical and unambiguous finding that
there is no such contravention of the
provisions of the Act, it would be unjust for
such departmental authorities to continue
with the criminal complaint and say that
there is sufficient evidence to foist the
accused persons with criminal liability when
it is stated in the departmental proceedings
that ex facie there is no such violation. The
yardstick would, therefore, be to see as to
whether charges in the departmental
proceedings as well as criminal complaint
are identical and the exoneration of the
concerned person in the departmental
proceedings is on merits holding that there
is no contravention of the provisions of any
Act.
Crl.M.C. No.520 of 2011 Page 7 of 11
22.2 We respectfully endorse the view
taken by the Bombay High Court in the case
of Hemendra M. Kothari (supra) and Delhi
High Court in Sunil Gulati (supra). ”
18. Mr. G.S. Kanojia, ld. counsel for the Department submits
that the learned Joint Secretary has maintained the confiscation
of the goods and only set aside the penalty imposed on the
petitioner. He relies on Section 138-A of the said Act which
reads as under:-
Presumption of culpable mental state.
“Section 138-A Presumption of culpable
mental state. (1) In any prosecution for an
offence under this Act which requires a
culpable mental state on the part of the
accused, the court shall presume the existence
of such mental state but it shall be a defence
for the accused to prove the fact that he had
no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation. – In this section, “culpable
mental state” includes intention, motive,
knowledge of a fact and belief in, or reason to
believe, a fact.
(2) For the purposes of this section, a fact is
said to be proved only when the court believes
it to exist beyond reasonable doubt and not
merely when its existence is established by a
preponderance of probability.”
19. A perusal of the aforesaid Section shows that it requires a
culpable mental state of the accused. The Court shall presume
the existence of such mental state but it shall be a defence for
Crl.M.C. No.520 of 2011 Page 8 of 11
the accused to prove the fact that he had no such mental state
with respect to the act charged as an offence in that
prosecution.
20. Learned counsel for petitioner submits that the Joint
Secretary to the Government of India has accepted the
contention of the petitioner that she had no knowledge about
the substances in the aforesaid shampoo and talcum powder
bottles, therefore, in this case there cannot be any mens rea
since the petitioner had no knowledge about the substance
found in the aforesaid bottles. The Joint Secretary has
maintained the order of confiscation and the same has not been
challenged by the petitioner since the said two bottles were of
the substances which are not permissible to be given to the
petitioner. Under the Customs Act, 1962 there is complete
restriction on the aforesaid substance, which the petitioner has
brought from Hong-kong, without her knowledge, therefore, her
state of mind cannot be said to be having an intention to import
or smuggle the aforesaid substance.
21. While relying on the aforesaid two judgments of this Court,
which are affirmed by the Supreme Court, the ld. counsel for
the petitioner has prayed that since there is no adjudication
Crl.M.C. No.520 of 2011 Page 9 of 11
pending against the petitioner and the petitioner has been
exonerated, in the adjudication proceedings, therefore, the
criminal proceedings pending before the trial court cannot go
on.
22. While allowing the case of Sunil Gulati & Anr. V. R.K.
Vohra, [145 (2007) DLT 612] this Court held that where the
accused persons are exonerated by the competent
authorities/Tribunal in adjudication proceedings, one will have
to see the reasons for such exoneration to determine whether
these criminal proceedings should still continue. If the
exoneration in departmental adjudication is on technical ground
or by giving benefit of doubt and not on merits of the
adjudication proceedings were on different facts, it would have
no bearing on criminal proceedings.
23. In the instant case also the Joint Secretary to the
Government of India, Department of Revenue has exonerated
the petitioner fully on the basis that the petitioner had no
intention of smuggling or knowledge of the substances in the
aforesaid two bottles.
24. Keeping in view, the view taken in Sunil Gulati &
Anr.(supra), I am of the opinion, that the criminal proceedings
Crl.M.C. No.520 of 2011 Page 10 of 11
pending before the trial court cannot go on, against the
petitioner, since the petitioner has been fully exonerated by the
Joint Secretary to the Government of India, and same has
attained the finality.
25. In view of the above submissions and discussions, I quash
the proceedings in the criminal complaint dated 08.08.2002,
under Sections 132 & 135 (1)(a) of the said Act, pending
against the petitioner in the Court of Ld. ACMM, New Delhi.
26. Accordingly, CRL.M.C. No.520/2011 is allowed.
27. No orders as to costs.
28. Dasti.
SURESH KAIT, J
JULY 22, 2011
RS/Mk
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