High Court quashed criminal prosecution against applicant following Customs adjudicating authority's exoneration on merits. Court held criminal trial unjust where department itself found no contravention. Application allowed.
Criminal prosecution quashed and set aside; passport to be returned within 60 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
vrd 1 APL204/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.204 OF 2012
Choith Nanikram Harchandani v/s
Union of India and others
...Applicant
...Respondents
Mr Prakash D. Shah, Sr. Counsel i/b Mr Yogesh Rohira for Applicant. Mrs A.A. Mane, Special APP for Union of India. Mr A.R. Patil, APP for State.
Mr Sudhir Lowmar, Intelligence Officer, Air Intelligence Unit present in person.
CORAM : K.U. CHANDIWAL J.
DATED : 10TH DECEMBER 2012.
P.C. :-
the respondents. In the night of 4th / 5th September
2009, the Officers of Air Intelligence Unit at CSI Airport, Sahar, Mumbai intercepted the applicant among other two passengers while they were to travel by flight SQ 423 of Singapore Airlines from Mumbai
to Singapore and took over their passports and
travel documents, including boarding passes with baggage claim tags. In the personal search
vrd 2 APL204/12 conducted on the applicant resulted in recovery of foreign currencies i.e. 1,000 US$, 2,000 Euro and 1,100 Singapore $ which was within the permissible limits and did not require any RBI permission for its carriage outside India.
proceedings, the learned Commissioner of Customs, Chhatrapati Shivaji International Airport, Mumbai ordered confiscation of the assorted foreign currency equivalent to Indian Rs.35,94,005/(realised amount Rs.37,41,448/-) under section 113(d) and (h) of the Customs Act 1962. However, the applicant was given option to redeem 2,000 Euros, 1,000 US$ and 1,000 Singapore $, equivalent to Indian Rs.2,18,290/- (equivalent realised amount) under seizure in equivalent amount of Indian Rupees, in lieu of confiscation, on payment of fine of Rs.60,000/- (Rupees Sixty thousand only) under section 125 of the Customs Act 1962.
vrd 3 APL204/12
before the Commissioner of Customs (Appeals)
wherein, after hearing and perusal of the record,
the learned Commissioner recorded in his order in
paragraphs 7 to 9 that the foreign currency equivalent to Indian Rs.2,18,290/- seized from the person of the appellant, his contention was accepted
that it was being less than 5,000 US $ and
consequently no declaratory form was filled in at
the time of return nor it was required to be produced out of India subsequent to the date of
previous return. There is no contest that the gap in between arrival and departure is within the parameters of 180 days. The finding recorded is exonerating the applicant.
case of Radheshyam Kejriwal v/s State of West
Bengal, reported in 2011(266) ELT 294 (SC) delivered
by three Judges Bench. The Hon'ble supreme Court
has dealt with situation and also dealt with the
view expressed in the matter of Standard Chartered Bank v/s Directorate of Enforcement, reported in
vrd 4 APL204/12
2006(197) ELT 18 (SC) and confirmed the findings
recorded by the Appellate Authority, consequently
the criminal prosecution initiated against the
petitioner therein was quashed and set aside. The
Hon'ble Lordships of Hon'ble Supreme Court, endorsed
view taken by this Court in the case of Hemendra M.
Kothari v/s Shri W.S. Vaigankar, Assistant Director,
Enforcement Directorate (FERA) and also of Delhi
High Court in the matter of Sunil Gulati and anr.,
v/s R.K. Vohra, reported in 145(2007) DLT 612. The
judgment of this Court in the matter of Hemendra M. Kothari proceeds in paragraph 46 of the Supreme Court judgment as under :-
“21. It may be noted that in the present case the applicant was exonerated by the Dy. Director of Enforcement, who was adjudicating authority, in the adjudication proceedings. Admittedly that order was not challenged in appeal by the respondent and thus that order has become final. I have already noted the facts and findings of the adjudicating authority in detail. The adjudicating authority had clearly come to the conclusion that there was no material to hold the present applicant guilty for contravention of the provisions of FERA and he was completely exonerated. When in the departmental proceedings before the adjudicating authority, the department could not establish the charges, it is difficult to imagine how the department
vrd 5 APL204/12
could prove the same charges before the criminal Court when the standard of proof may be much higher and stringent than the standard of proof required in departmental proceedings.”
The judgment of Delhi High Court in the
case of Sunil Gulati is referred by the Hon'ble Supreme Court in paragraph 47 as under :-
“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 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 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
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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.”
In the light of this legal position, the
prosecution initiated against the applicant (original accused No.1) calls for interference and
it is quashed and set aside in respect of applicant. Application is allowed to the extent above. The passport of the applicant retained by the Customs Authorities be handed over if not required in any
other proceedings within 60 days from today.
(K.U. CHANDIWAL J.)
3 issues framed by the court
Whether criminal prosecution initiated for alleged contravention of Customs Act provisions should continue when the departmental adjudicating authority has exonerated the applicant on merits.
Whether the exoneration in departmental proceedings holds the applicant innocent such that criminal proceedings based on identical facts violate principles of justice.
Whether the impugned criminal prosecution order against the applicant is sustainable in light of the adjudicating authority's exoneration.
Colour shows how this judgement treated each authority
Radheshyam Kejriwal v/s State of West BengalFollowed¶32
2011(266) ELT 294 (SC)
Standard Chartered Bank v/s Directorate of EnforcementExplained¶37
2006(197) ELT 18 (SC)
Sunil Gulati and anr. v/s R.K. VohraExplained¶53
145(2007) DLT 612 · Who else cites this
Hemendra M. Kothari v/s Shri W.S. Vaigankar, Assistant Director, Enforcement Directorate (FERA)Explained¶44
2 provisions across 1 enactments
Choith Nanikram Harchandani
Union of India
K.U. CHANDIWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
