{"id":147204,"date":"2002-09-02T00:00:00","date_gmt":"2002-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-k-goenka-vs-collector-of-customs-and-anr-on-2-september-2002"},"modified":"2016-12-31T00:30:32","modified_gmt":"2016-12-30T19:00:32","slug":"r-k-goenka-vs-collector-of-customs-and-anr-on-2-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-k-goenka-vs-collector-of-customs-and-anr-on-2-september-2002","title":{"rendered":"R.K. Goenka vs Collector Of Customs And Anr. on 2 September, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
R.K. Goenka vs Collector Of Customs And Anr. on 2 September, 2002<\/div>\n
Equivalent citations: 2003 CriLJ 646, 100 (2002) DLT 420, 2003 (152) ELT 54 Del<\/div>\n
Author: O Dwivedi<\/div>\n
Bench: O Dwivedi<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  O.P. Dwivedi, J.  <\/p>\n
1. By this common judgment, I propose to dispose of
\nfour petitions being CRL. R.157\/2002 titled Sh. Subhash
\nChander Wadhwa v. Neeraj Gar; CRL. R. 271\/2002 titled
\nParvesh Kumar Gujral v. Neeraj Garg; Deepak Kaushal v.
\nNeeraj Garg titled 272\/2002 and CRLM(M) 1132\/2000 titled
\nR.K.Goenka v. Collector of Customs and Anr., as all
\nraise a common question of consideration namely whether
\nthe prosecution launched by the department against the
\npetitioners under Section 132 and 135(1) (a) of the
\nCustoms Act and Imports and Exports (Control) Act, 1947
\ncan\/ should continue even after they have been exonerated
\nby the department in adjudication proceedings.\n<\/p>\n
 2. Briefly narrated the facts leading to petition No.
\nCRLM(M) 1132\/2002 are that the petitioner No.1 Mr.
\nR.K.Goenka as proprietor of M\/s Mirah Decore had imported a
\nconsignment of decorative paper for laminate in 1987 from
\nSingapore. They had filed yellow bill of entry dated
\n1.8.87 at ICD New Delhi for clearance of goods i.e.
\ndecorative paper for laminate through its agents, M\/s Om
\nInternational New Delhi of which the petitioner No.2 is
\nthe Director. The clearance was sought under REP Import
\nlicense No. P\/L\/3149498\/C\/ZZ\/02\/Q\/86\/C.11.1 dated 9.10.86.
\nThe bill of entry was marked to Superintendent (CFS) for
\nexamination of goods with the direction to send the goods
\nto the assessing officer. The goods were examined at CFS
\non 19.8.87 and samples were drawn in the presence of CHA
\nand the Importer. On 24.8.1987, Assistant Collector (ICD)
\nreceived information that the goods declared as ‘Decorative
\npaper for Laminates’ were not as per declaration. He
\ntherefore ordered 100% examination of the goods on 25.8.87
\nin the presence of the importer, CHA, Superintendent (ICD)
\nand Superintendent (CFS). Two cartons containing 10
\nsamples\/ catalogue books for wall paper were found which
\nhad not been mentioned in the wrapper. The labels found on
\nthe goods clearly indicated that the goods were not
\ndecorative paper for laminates but were in fact wall paper.
\nThe license produced by the importer did not cover
\nimportation of wall paper. Import of any goods into Indian
\nterritory except under an in accordance with a valid
\nimport license under Clause 3 of Imports (Control) order
\nissued under Section 3 and 4A of the Imports and Exports
\n(Control) Act, 1947 which prohibitions by virtue of Section
\n3 B ibid are deemed to have been imposed under Section 11
\nof the Customs Act, 1962. Accordingly, the entire goods
\nwere seized under Section 110 of the Act under the
\nreasonable belief that the same were liable to confiscation
\nunder Section 111 of the Act. A show cause notice in
\nrespect of adjudication proceeding was issued for
\nmis-declaration of value of the goods and importing the
\ngoods without license and adjudication order was passed by
\nthe Collector on 20.12.88 against which an appeal was
\npreferred to CEGAT. Petitioner approached the Supreme
\nCourt in Civil Appeal No. 4860\/92 and the matter was
\nremanded to the Tribunal for fresh consideration. The
\nmatter was reconsidered by a special Bench of the Tribunal
\nwhich in its order dated 10.5.93 held as under:\n<\/p>\n
” We are of the view that the
\narguments of the learned SDR for
\nplacing reliance on the quotation are
\nnot really relevant to the issue for
\nthe purpose of proceedings in remand
\nbefore the Tribunal. Revenue has
\nfailed, as rightly pointed out by the
\nlearned advocate, to prove that the
\nquotation in question relates to the
\nperiod when the goods were imported.\n<\/p>\n
Once the sole basis for revaluing the
\ngoods at a higher level by the Revenue
\ngoes away on the aforesaid ground, the
\nonly evidence that remains for the
\nvalue of the goods is the invoice of
\nthe appellant. Argument of the
\nlearned SDR to the effect that if the
\nstrength of Tribunal’s two judgments
\nin the cases of Shiv Shakti Enterprise
\nand photocopy Centre is not tenable.\n<\/p>\n
Those judgments dealt with
\nmisdeclaration regarding the
\ndescription of the goods to an extent
\nthat the goods are totally different
\nin character from the goods described
\nin the invoice\/bill of entry. For
\nexample, in the case of photocopy
\nCentre the goods were described as
\nspares for photocopier whereas they
\nwere found to be photocopier in ckd
\ncondition and in the case of Shiv
\nShakti the goods were found to be snap
\nfasteners but the goods were
\nmisdeclared by the importers as
\nrivets. In the present case, however,
\nmisdeclaration cannot be termed to be
\nof such a substantial character as to
\ndiscard the invoice value itself.\n<\/p>\n
Description of the goods is
\n‘decorative papers for laminates’
\nwhereas these have been found to be
\n‘decorative wall paper’. Character of
\nthe goods in both the cases is
\n‘decorative paper’. There is only a
\ndifference in thickness and no doubt
\nit has been admitted by the appellant
\nthat the imported goods   could be used
\nas’ wall paper’. Accordingly, we are
\nof the view that in the peculiar facts
\nand circumstances of this case the
\ninvoice value cannot be discarded, as
\ncontend by the learned SDR, more so
\nin the absence of any acceptable
\nevidence regarding the correct
\nvaluation of the goods at the time and
\nplace of importation of the goods. In
\nthe circumstances, we hold that the
\ndepartment has failed to prove
\nunder valuation of the goods in the
\ninstant case.   We accordingly order
\nthat the value of the goods be
\naccepted as declared by the
\nappellant.”\n<\/p>\n
 3. In the meantime on 28.4.1988, the Collector of
\nCustoms filed a complaint against the petitions under
\nSection 132 and 135(1)(a) of the Act and Section 5 of the
\nImports and Exports (Control) Act, 1947 whereupon the
\npetitioners were ordered to be summoned. That the
\nproceedings are going on a snail’s pace is apparent form
\nthe fact that even after 14 years the complaint is still at
\nthe stage of pre-charge evidence. Then on 12.10.2001 the
\npetitioners filed an application for dropping the
\nproceedings. The said application was rejected by the
\nlearned ACMM Sh. V.K. Maheshwari vide detailed order dated
\n13.2.2002 mainly on the ground that the finding in the
\nadjudication proceedings is not binding on the criminal
\nproceedings and is no bar to the continuance of
\nprosecution. Feeling aggrieved, the petitioners have filed
\nthe present petition under Section 482 of the Code of
\nCriminal Procedure read with Article 226 and 227 of the
\nConstitution of India for quashing the impugned order as
\nwell the complaint.\n<\/p>\n
 4. The facts in CRL.R. Nos. 157-271-272\/2002 are that
\non the night intervening 1st and 2nd November, 1996, one
\nAbhay Tuli was intercepted when he was going to Bangkok by
\nflight No. TG-316 and foreign currency equivalent to
\naround Rs. 2.71 crores (approx.) was recovered form him. In
\nhis statement he named three persons namely Subhash
\nChander, Parvesh Kumar Gujral and Deepak Kaushal besides
\nothers who had arranged the foreign currency which was
\nbeing smuggled. The entire amount of foreign currency was
\nconfiscated under Section 113(d), (e) and (h) of the
\nCustoms Act 1962 (for short the ‘Act’) and the personal
\npenalty of Rs. 3,00,000\/- each was imposed on the three
\npetitioners under Section 114 of the Act. The petitioners
\nfiled appeal before the Commissioner Customs (Appeal) who
\nvide order dated 7.6.2001 accepted the appeals of the
\npetitioners being of the view that the department has not
\nbeen able to establish the petitions involvement in the
\nattempted export of the foreign currency seized on 2.11.96.
\nThe Appellate Authority held that no penalty under the Act
\nis imposable on them. Accordingly, their appeals were
\naccepted and the order imposing penalty on them were set
\naside.\n<\/p>\n
 5. The thrust of the arguments of Sh. Aggarwal,
\nlearned counsel for the Department of Customs is that the
\ndepartmental authorities are not a Court within the meaning
\nof Article 20(2) of Constitution of India so their finding
\nneither operates as a bar to the prosecution under Section
\n135 of the Act nor for the same reason it can operate as a
\nissue estoppel in the criminal case. Reliance was placed
\non a decision of the Supreme Court (Constitution Bench) in
\nthe case of  Assistant Collector of Customs v. L.R.
\nMalwani<\/a> reported in 1999 (110) E.L.T. 317 (S.C.)  In that
\ncase Hon’ble Supreme Court was dealing with the criminal
\nappeal against the decision of the High Court of Bombay in
\ncriminal revision application No. 238\/66 wherein these
\nquestions of law had arisen for consideration. An other
\ndecision cited by Sh. Aggarwal is from Andhra Pradesh High
\nCourt in the case of K. Neelkanta Rao v. State of Andhra
\nPradesh reported in 2000 (122) E.L.T. 7(A.P.)  wherein the
\npetitioner was facing prosecution for gold smuggling and
\nunauthorizedly holding foreign currency. He sought stay of
\nthe trial till the completion of the adjudication
\nproceedings. Hon’ble High Court declined the request on
\nthe strength of the decision of the Supreme Court in the
\ncase of Assistant Collector of Customs (supra). Learned
\nsingle Judge of Andhra Pradesh, High Court also referred to
\ntwo decisions of Delhi High Court in the case of S.K. Sinha
\nv. S.K. Singal – (1987 (30) E.L.T. 900 (Del) = (1987) 32
\nDLT 91 (Delhi)  and in the case of Willi Lemback v. Rajan
\nMethur and Anr. (XI-1992(3) Crimes 692.  In both these
\ncases this High Court has taken the view that if the
\ndepartment has no good case for the purpose of adjudication
\nit will be most unjust to require the petitioners to go
\nthrough the entire process of prosecution. Learned single
\nJudge of Andhra Pradesh High Court observed that the
\nfinding in the adjudication proceedings need not
\nnecessarily be perfect. There may be occasions where the
\npresentation officer before the adjudication proceedings
\nmight have acted negligently, might have omitted to bring
\non record some crucial piece of evidence which was
\navailable. The adjudicating authority might have committed
\na serious blunder in appreciating the material. Therefore
\nthe failure of the department in the adjudication
\nproceedings would not necessarily warrant the quashing of
\nprosecution. There is no dispute with the proposition of
\nlaw that the finding of departmental authority in
\nadjudication proceedings does not operate as a bar for
\nprosecution under Article 20(2) of the Constitution of
\nIndia nor does it operate as an issue estoppel in the
\ncriminal proceedings. Even the two decisions of Delhi High
\nCourt in the case of S.K. Sinha and Willi Lemback (supra)  do
\nnot say anything to the contrary. Both these decision of
\nDelhi High Court do not run counter to the decisions of the
\nSupreme Court in the case of Assistant Collector of Customs
\n(Supra).  They only questioned the desirability of
\ncontinuing the prosecution after the department failed in
\nthe adjudication proceedings after a long battle. In both
\nthese cases this High Court was dealing with cases where
\nthe petitioner had invoked its inherent power under Section
\n482 of the Cr. P.C. for quashing proceedings under Section
\n132\/135 of the Customs Act. In the case of S.K. Sinha
\n(supra)  Hon’ble Malik Sharief-Ud-Din, J. observed as
\nunder:-\n<\/p>\n
“A decision by the Tribunal in the
\nproper sense of the word therefore, is
\na decision of a departmental authority
\ndrawn on the basis of a set of facts
\nand evidence. The lease that can be
\nsaid is that if the department does
\nnot feel aggrieved of the finding of
\nthe Tribunal and accepts it as final
\nand correct, then it has to be
\ncontended with it. I, therefore, fail
\nto understand as to how on the same
\nset of facts and evidence, the
\ndepartment can foist criminal
\nliability upon a person about whom it
\nhas accepted that on this set of facts
\nand evidence he cannot even be
\nproceeded against in the adjudication
\nproceedings. In criminal matters the
\ndegree of proof required is far more
\nstrict. If the departmental
\nauthority, has no good case, for
\npurposes of adjudication, it cannot
\nclaim to have a good case for purposes
\nof criminal prosecution, particularly
\nwhen the prosecution is also based on
\nthe same set of facts and evidence.\n<\/p>\n
It will be most unjust to require the
\npetitioner to go through the entire
\nprocess of the prosecution in the
\ncircumstances of this case. This
\nmight virtually amount to persecution
\nand in my view this will amount to
\nabuse of the process of the Court. In
\nview of the findings of Tribunal there
\nis not case against the petitioner. It
\nis as such not legal to prosecute the
\npetitioner of a criminal offence on
\nthis set of facts and evidence.”\n<\/p>\n
 6. In the case of P.S. Rajya v. State of Bihar – 1996
\nS.C. Cases (Cri.) 897,  the appellant a Income Tax Officer
\nwas prosecuted by the CBI for being found in possession of
\nthe disproportionate assets. Later on the Central
\nVigilance Commission exonerated the appellant in the
\ndepartmental proceedings and this was concurred by the
\nUPSC. The appellant then filed a petition under Section
\n482 Cr.P.C. in the High Court for quashing prosecution but
\nthe High Court rejected the petition being of the view that
\nissues raised had to be gone into in the final proceedings.
\nThe appellant then approached the Supreme Court. Apex
\nCourt allowed the appeal and hold that when on the same
\nallegation appellant has been exonerated in the
\ndepartmental inquiry there was no justification in
\ncontinuing the prosecution. In the case of Uttam Chand v.
\nIncome Tax Officer, Central Circle, Amritsar<\/a> – Income Tax
\nReports Vol. 133 page 909 (S.C),  the income tax department
\nhad launched the prosecution against the petitioner for
\nfiling false return. In the departmental proceedings the
\nTribunal exonerated the petitioner. Supreme Court held
\nthat after the petitioner has been exonerated by the
\ndepartment’s Appellate Authority, he could not be
\nprosecuted in a criminal Court on the same facts.
\nLikewise, in the case of G.L. Didwani v. Income Tax
\nOfficer – 1999 (108) ELT Page 16 (SC),  the petitioner was
\nprosecuted by the Income Tax department for concealment of
\nincome under the Income Tax Act. But the Tribunal who is
\nthe final fact finding authority under the Act decided the
\nquestion in favor of the assessed. The Supreme Court held
\nthat prosecution on the same charges cannot be continued.
\nThis High Court also look the same view in the case of
\nMunnalal Khandelwal v. Director of Revenue Intelligence
\nPetition (Crl.) 952\/99 decided by DB of this Court on
\n12.9.2002, Criminal Revision 420\/1998 decided on
\n31.10.2000, 1987 (32) E.L.T. 511 (Del.) and 2002 (139) ELT
\n498(Mad.).\n<\/p>\n
 7. The question as to whether inherent powers under
\nSection 482 Cr.P.C. should or should not be invoked would
\ndepend upon the facts and circumstances of the each
\nindividual case. It is rather a question of desirability
\nthan of legality of prosecution. In CRLM (M) 1132\/2002 the
\ncomplaint was filed in the year 1988. About 14 years have
\npassed out proceedings are still at the stage of pre charge
\nevidence. More than nine years have lapsed since the
\npassing of order dated 10.5.1993 by the CEGAT whereby value
\nof the goods as declared by the appellant was accepted by
\nthe department. That being so prosecution of the
\npetitioners for fraudulent evasion of custom duty will not
\nbe in consonance with the position of the department in
\nhaving accepted the value of the goods as declared by the
\npetitioners to be correct. In CRL.R.Nos. 157-271-272\/2002,
\nforeign currency was not seized from the petitioners and
\nthe Tribunal has found that department has failed to
\nestablish the petitioners involvement in attempted export
\nof the foreign currency seized on 2.11.96. The moot point
\nfor consideration, therefore, will be as to whether in the
\nface of such findings by the department Tribunal, it will
\nbe possible to prove the offence alleged against the
\npetitioners with the aid of the presumption of culpable
\nmental state under Section 138A of the Act? Even if a
\nculpable state of mind is presumed that by itself is not an
\noffence. Of course, if there is recovery of any contraband
\narticles from any person who pleaded innocence surely he
\ncan be convicted with the aid of presumption of culpable
\nmental state under Section 138A of the Act. Once the
\nrecovery of any contraband article from any person is
\nproved as a fact, it will be no defense for such person to
\nsay that be was not aware of the presence of the offending
\narticle in his luggage because the presumption of culpable
\nstate of mind would then be sufficient to make it a case of
\nconscious possession. But when the Facts as determined by
\nthe Appellate Authority do not make out an offence per se,
\nraising of presumption under Section 138A will be of no
\nhelp to the prosecution. A mere guilty intention not
\naccompanied by any overt unlawful act is not punishable
\nunder the Act or any other law. In all these cases the
\ndepartment Tribunal has not given any finding of fact which
\ncould make the petitioners liable for punishment under he
\nAct. Therefore, raising of presumption of guilty state of
\nmind will not strengthen the prosecution case. For these
\nreasons I find, no cogent reason to adopt a different
\napproach in the matter than that adopted by other benches
\nof this Court in various decisions cited above.\n<\/p>\n
 8. In the result the four petitions being
\nCRL.R.157\/2002 titled Sh. Subhash Chander Wadhwa v. Neeraj
\nGarg; CRL.R. 271\/2002 titled Parvesh Kumar Gujral v.
\nNeeraj Garg; Deepak Kaushal v. Neeraj Garg titled
\n272\/2002 and CRLM(M) 1132\/2002 titled R.K. Goenka v.
\nCollector of Customs and Anr. are allowed and in exercise
\nof inherent powers under Section 482 Cr.P.C., the
\nproceedings pending against the petitioners in these cases
\nin the Court of learned ACMM, Patiala House, New Delhi are
\nhereby quashed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court R.K. Goenka vs Collector Of Customs And Anr. on 2 September, 2002 Equivalent citations: 2003 CriLJ 646, 100 (2002) DLT 420, 2003 (152) ELT 54 Del Author: O Dwivedi Bench: O Dwivedi JUDGMENT O.P. Dwivedi, J. 1. By this common judgment, I propose to dispose of four petitions being CRL. R.157\/2002 titled […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-147204","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nR.K. 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