IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 6094 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE A.K.TRIVEDI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HAJI AHMAD HAJI HAROON ALIAS HAJI Versus ASSISTANT COLLECTOR OF CUSTOMSCUSTOMS HOUSE, -------------------------------------------------------------- Appearance: MR BB NAIK for Petitioners MR JS YADAV for Respondent No. 1 MR HL JANI Learned APP for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE A.K.TRIVEDI Date of decision: 14/02/2001 ORAL JUDGEMENT Heard Mr. B.B.Naik learned advocate for the petitioners. Rule. Mr. J.S.Yadav learned advocate waives service of rule on behalf of respondent no.1 and Mr. H.L.Jani learned APP waives service of rule on behalf of respondent no.2. 1. The petitioners have prayed to quash and set aside the order dated 20.9.2000 passed by the Court of learned Chief Judicial Magistrate, Kuttch at Bhuj below application Exh.234 of Criminal Case No. 2630 of 1984 and have further prayed to quash the proceedings of Criminal Case No. 2630 of 1984 pending in the Court of learned Chief Judicial Magistrate, Kuttch at Bhuj. 2. The present petitioners are the original accused nos. 3,4 and 6 respectively of the Criminal Case No. 2630 of 1984 filed by respondent no.1 in the Court of learned Chief Judicial Magistrate, Kuttch at Bhuj. One Firoz Abdul Hamid Shaikh and Salim Mahboobkhan are arraigned as accused nos. 1 and 2 of the said criminal case. While Haji Rafik is arraigned as accused no.5. It is averred and alleged in the complaint that Customs Officer, Bhuj along with A.S.P., Bhuj apprehended accused no. 1 and 2 on 17.3.1981 by intercepting a taxi in which they were travelling from Mandvi to Bhuj Aerodrome on the basis of intelligence report. That on search of their baggages wrist watches of foreign origin were found for which accused nos. 1 and 2 could not produce valid documents for import of the said writ watches and as such, under a reasonable belief that the same were smuggled goods and liable to confiscation under the provisions of Customs Act, 1962; aggregate number of 298 wrist watches were seized and further investigation was made. On completion of investigation, complaint was filed against six accused for carrying, removing depositing, harbouring, keeping and concealing of contraband goods in contravention of the provisions of Customs Act, 1962 and as such, they have committed an offence punishable under Section 135 of the Customs Act, 1962. 3. The petitioners were also served with show cause notice for contravention of the provisions of Customs Act, 1962 and departmental proceedings were also initiated. That the Additional Commissioner on conclusion of departmental proceedings imposed penalty of Rs. 50,000/- on each of the petitioner vide order dated 17.10.1989 in the proceedings of Case No. 140/Addl. Collr/89. That the petitioners challenged the said order by filing Appeal No. C/89, 85 and 127/90, Bombay before the Customs, Excise and Gold (Control) Appellate Tribunal West Regional Bench at Mumbai (for short "Tribunal"). 4. That vide order dated 8.9.1998, the Tribunal allowed all the three appeals of the present petitioners and exonerated the petitioners from the charge levelled against them. The petitioners have produced the true copy of the judgement at Annexure-A. 5. That the petitioners moved application Exh.234 in the proceedings of Criminal Case No. 2630 of 1984 pending in the Court of learned Chief Judicial Magistrate, Kuttch at Bhuj with the prayer to drop the further criminal proceedings against the petitioners as accused nos. 3,4 and 6 of the said case on the ground that petitioners were exonerated in the adjudication proceedings by the competent court on same set of charge based on a same facts and material. That learned Chief Judicial Magistrate rejected the said application Exh.234 of the petitioners vide impugned order dated 20.9.2000 and as such, the petitioners have challenged the same in the present proceedings. 6. Shri B.B.Naik learned advocate appearing for the petitioners having relied on the observations made by the Hon'ble Supreme Court in the matter of P.S.Rajya Vs. State of Bihar, reported vide (1996) 9 SCC 1 and has urged that the departmental proceedings against the petitioners were based on a same set of facts on which criminal prosecution vide Criminal Case No. 2630 of 1984 is filed against the petitioners and other accused. That the Tribunal as a competent authority on appreciation of the material has held that evidence produced by the department against the petitioners being insufficient, the order of imposing penalty by Additional Commissioner of Customs could not be sustained and has set aside the said order. Under the circumstances, if the same material is used in criminal prosecution against the petitioners it could not be said to be sufficient to establish the guilt of the accused beyond the reasonable doubt and as such, proceedings should be dropped. Shri B.B.Naik learned advocate has also referred to and relied on the observations made by this Court in an unreported decision rendered in the matter of Special Criminal Application No. 1243 of 1998 decided on 7.7.2000. 7. As against that Shri J.S.Yadav learned advocate appearing for respondent no.1 has contended that almost all the evidence has been adduced before the Trial Court in the said criminal case and the matter is pending at the stage of recording statement under Section 313 of the Criminal Procedure Code, 1973. That the proceedings of adjudication and criminal trial being different and distinct in nature, it could not be just and proper to drop the criminal prosecution if the department has failed to establish the liability of the petitioners in the adjudication proceedings. That the impugned order dated 20.9.2000 passed by learned Chief Judicial Magistrate, Kuttch at Bhuj below Exh.234 being just and proper, no interference of this Court is warranted to prevent the abuse of process or to meet with the ends of justice. 8. It would be pertinent to note that in the matter of State of Haryana Vs. Ch. Bhajan Lal and others, reported vide AIR 1992 SC 604, the Hon'ble Supreme Court has enumerated 7 criteria for exercising the power under Section 482 of the Criminal Procedure Code to quash the proceedings or the order. That one of the criteria at serial no.3 is as under ; "where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused". That in the instant case, the Tribunal as a competent authority has appreciated the material produced by the department against the present petitioners which is the same set of material used by the respondent no.1 for prosecution of Criminal Case No. 2630 of 1984 against the present petitioners as accused nos. 3,4 and 6. It is undisputed that on appreciation of the said material, the Tribunal as a competent authority has given the finding in the order dated 8.9.1998 (Annexure-A) that the material produced by the department is insufficient to establish the involvement of the present petitioners in respect to charge levelled against them. 9. That in the matter of P.S.Rajya (supra) following observations made by the Hon'ble Supreme Court in paragraph nos 7 and 21 of the report are material and relevant; "The standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. In the instance case the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. The appellant's case can be brought under more than one head of guidelines laid down in Bhajan Lal case (supra) for quashing of a complaint/FIR". 10. That if the above stated dicta of the Hon'ble Supreme Court is applied to the facts and circumstances of the present case, it is difficult to hold that the material produced by the department before the competent authority which could not establish the liability of the petitioner on preponderance of probability; the said material could establish criminal liability against the present petitioners under a strict standard of proof to establish the guilt beyond the reasonable doubt. 11. Furthermore, in the matter of Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajiao Chandojiao Angre and others, reported vide AIR 1988 SC 709, the Hon'ble Supreme Court has made following observations vide para.7 of the report as under : "The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilsed for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may beat a preliminary stage". In the instant case, the submission urged at bar on behalf of the petitioners is fortified by the above stated dicta of the Hon'ble Supreme Court also and as such, interest of justice require that in view of the orders passed by Tribunal dated 8.9.1998 in departmental appeals of the petitioners; exonerating the petitioners from the charge made against them in a adjudication proceedings, the further prosecution of Criminal Case No. 2630 of 1984 qua the present petitioners (original accused nos. 3,4 and 6) deserves to be quashed and set aside. 12. On the basis of foregoing discussion, petition is allowed. The Criminal Case No. 2630 of 1984 filed by the respondent no.1 against the present petitioners and other accused pending in the Court of learned Chief Judicial Magistrate, Kuttch at Bhuj is hereby quashed and set aside qua the present petitioners (original accused nos. 3,4 and 6). Rule to that extent is made absolute. (A.K.Trivedi,J.) (vipul)