AIR CUSTOMS OFFICER IGI NEW DELHI versus PRAMOD KUMAR DHAMIJA
[2016] 2 S.C.R. 561, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2016] 2 S.C.R. 561 
AIR CUSTOMS OFFICER IGI NEW DELHI 
v. 
PRAMOD KUMAR DHAMIJA 
(Criminal Appeal No. 123of2016) 
FEBRUARY 15, 2016 
[V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ.] 
Customs Act, 1962: Smuggling - 184 gold biscuits of JO to/as 
each concealed in the meal trolleys by two passengers of the aircraft 
of Liifthansa Airlines - In their statements, they admitted the recovery 
of gold biscuits and disclosed that respondent had invested the 
money in the gold recovered as well as the gold smuggled on earlier 
occasions - Criminal case filed against the respondent -
Adjudicating proceedings also initiatecf against him under the 
Customs Act - By order dated 30.9.1999, penalty imposed on 
respondent by Additional Commissioner of Customs - The order set 
aside by Commissioner on the ground that there were two persons 
having same name, one in Dubai and second being the respondent 
and that beyond the statement of co-accused there was no material 
on record - Petition for quashing of complaint filed in High Court 
- In the petition itself, two addresses of respondent were given -
High Court alloll'ed the petition and quashed the complaint - On 
appeal, held: Appellate order dated 30.9.1999. disclosed that the 
passenger alleged the involvement of the respondent - In law, if 
such statement is otherwise admissible and reliable, conviction 
can lai•fu//y rest on such material - The finding in the appellate 
order that there were two Pramod Kumars was completely incorrect 
-
In the backdrop of these facts, it cannot be accepted that the 
exoneration of the respondent in the adjudication proceeding was 
on merits or that he was found completely innocent - Considering 
the facts and circumstances of the case, High Court was not right 
and justified in accepting the prayer for quashing of the 
proceedings. 
Allowing the appeal, the Court 
HELD: 1. The order in original dated 30.09.1999 referred 
to the statement of.the brother of the respondent clearly suggests 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
that the respondent (Pramod Kumar) had come down to Delhi in 
April, 1996. This st'1tement was not even referred to in the 
appellate order dated 30.09.1999 but a finding is rendered that 
the respondent had not visited India after September, 1994. The 
respondent was declared a proclaimed offender and had not 
participated in any of the proceedings personally. In the 
circumstances, no weightage could be given to copies of the 
passport submitted in support of the assertion that he had not 
visited India after September 1994. The appellate order further 
disclosed that the statement of the passenger did allege the 
involvement of the respondent. In law, if such statement is 
otherwise admissible and reliable, conviction can lawfully rest 
on such material. The finding in the appellate order that there 
were two Pramod Kumars was completely incorrect. In the 
backdrop of these facts, it cannot be accepted that the 
exoneration of the respondent in the adjudication proceeding was 
on merits or that he was found completely innocent. Considering 
the facts and circumstances of the case, the High Court was not 
justified in accepting the 11rayer for quashing of the 11roceedings. 
lf'aras 8, 9) [568-G-H; 569-A-E) 
Collector of Customs v. L.R. Me/wani (1969) 2 SCR 
438; K. G Premshankar \'. Inspector of Police (2002) 
8 SCC 87: 2002 (2) Suppl. SCR 350; Radheshyam 
Kejriwal v. State of West Bengal and Another
(2011) 3 
SCC 581: 2011 (4) SCR 889 - referred to. 
Case Law Reference 
( 1969) 2 SCR 438 
referred to 
Para 4 
2002 (2) Suppl. SCR 350 
referred to 
Para 6 
2011 (4) SCR 889 
referred to 
Paras 7, 8 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 123 of2016. 
From the Judgment and Order dated 04.0I.2011 in Criminal No. 
460 of2009 passed by the High Court of Delhi at New Delhi. 
Ms. Ranjana Narayan, Ms. Sushma Manchanda, B. Krishna 
Prasad for the appellant. 
Naveen Malhotra. Rishi Malhotra for the respondent.
AIR CUSTOMS OFFICER IGI NEW DELHI v. 
PRAMOD KUMAR Dl-IAMIJA 
The Judgment of the Court was delivered by 
UDAY U. LALIT, J. I. Leave granted. 
2. This appeal challenges the judgment and order dated 04.1.2011 
passed by the High Cou1t of Delhi at New Delhi in Crl. M.C. No.460 of 
2009. 
3. That the facts leading to the filing of this appeal are as under:-
( A) On the basis of specific information. AIR Customs Officers 
(Preventive) at IGI Airport. New Delhi, on 09.07.1996 recovered and 
seized from meal trolleys of the aircraft of Lufthansa Airlines flight from 
Frankfurt to Delhi, 184 gold biscuits often to las each. weighing2 I 454.400 
grams valued at Rs.1,09,84,652/- concealed in the meal trolleys by two 
passengers, named Varyam Singh and Ranbir Singh. In their statements, 
Varyam Singh and Ranbeer Singh admitted the recovery and seizure of 
gold and named other persons involved in the incident. Varyam Singh, 
inter alia, disclosed the name of one Pramod Kumar i.e. the respondent 
herein who invested the money with him in the seized gold as well as the 
gold smuggled on earlier occasions. 
(B) Varyam Singh further stated that on 6.07.1996, Ranbeer Singh 
and he went to Dubai where the respondent delivered two packets of 
gold; that they went to Frankfurt; that in the flight from Frankfurt to 
Delhi with the help ofRanbeer Singh, he put both the packets in dry ice 
trays and as per pre-arrangement these packets were to be removed 
and delivered to him near Moti Bagh
Gurudwara by the catering staff 
and that he had agreed to pay Rs. 50,000/- for this job to that person; 
that he had to hand over this gold to the respondent and in return he was 
to get Rs. 2,00,000/- out of the profit; that his share of investment in the 
gold seized on 9.7.1996 was Rs.Thirty Two lacs and that the balance 
was invested by the respondent. He admitted that earlier he had gone to 
Frankfurt via Dubai and come back to Delhi on six occasions and brought 
gold in the same manner. The authorities recorded the statements of all 
the persons involved. However, the statement of the respondent could 
not be recorded as inspite of numerous summons, he did not cooperate 
with the investigating authorities and remained in hiding. 
(C) The Commissioner of Customs, Delhi accorded sanction on 
04.09.1996 for the prosecution of the respondent, Varyam Singh, Ran beer 
Singh and four others and accordingly Complaint No. 66/1196 was filed 
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in the Court of ACMM, New Delhi. The respondent was declared 
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[2016] 2 S.C.R. 
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"proclaimed offender" by the Ld. ACMM, New Delhi in the subject 
case. 
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(D) In the meantime adjudicating proceedings were initiated pursuant 
to the show cause notice to the respondent. Order in Original No. 66199 
dated 30.09.1999 was passed by the Additional Commissioner of Customs, 
!GI Airport, New Delhi imposing penalty ofRs.15 lacs on the respondent. 
Following observations in the said order are noteworthy:-
" In response to summons Shri Kanwar Bhan appeared before 
the Customs authorities and he in his further voluntary statement 
dated 30.8.1996 recorded under Section 108 of the Customs Act, 
1962, stated that he was shown the record of details of call charges 
of Mobile phone number9811028643 obtained from EssarCell 
Phone mobile phone services, that on 21.04.1996 and 27.04. I 996 
telephone calls were made to telephone number 691403 7; that he 
had been told that telephone number 6914037 belonged to Shri 
Varyam Singh and was his residence number and who had been 
arrested for smuggling of 184 gold biscuits. On being asked about 
that he stated that neither did he know any person by name of 
Shri Varyam Singh nor his telephone number on being asked about 
as to how telephone calls were made to telephone number 691403 7 
on 21.04.1996 three times and one time on 27 .04.1996 from his 
mobile phone, he stated that he did not know the exact date but in 
the month of April, 1996, his younger brother
Shri Pramod Kumar 
came to Delhi from Dubai as his mother was seriously ill, it might 
be possible that Shri Pramod Kumar had made four calls from 
his (Kanwar Bhan) mobile phone to telephone number 6914037 
belonging to Shri Varyam Singh as he did not know Shri Varyam 
Singh and his telephone number." 
(E) The aforesaid order dated 30.09.1999 was carried in appeal 
and the Commissioner of Customs (Appeal) vide his order dated 
25.01 .2008 set aside the penalty imposed on the respondent. The Appellate 
Authority was of the view that there were two persons having same 
name i.e. Pramod Kumar, one in Dubai and the second being the 
respondent and that beyond the statement of the co-accused there was 
no material on record. During the course of this order it was observed 
as under:-
"If the investment was made by Shri Pramod Kumar of Dubai, 
then it cannot be linked to the appellant. The department has not
AIR CUSTOMS OFFICER !GI NEW DELHI v. 
PRAMOD KUMAR DHAMIJA [UDAY U. LAUT, J.] 
made Shri Pramod Kumar of Dubai a party in the case and nothing 
is on record to suggest that effo1is were made to trace and identify 
Shri Pramod Kumar of Dubai and how the telephone number in 
Dubai i.e. 53 I 228 is linked to the appellant. 
Thus there is only the lone statement ofShri Varyam Singh alleging 
the involvement of the appellant and is not corroborated by the 
statement of any other person or by any documentary evidence. 
On the other hand the claim of the appellant that he had left India 
on 06.09.1994 and since then he has not visited India again is 
corroborated by the statements of various persons tendered under 
Section 108 of the Customs Act 1962 and also by documentary 
evidence i.e. copies of his passports. No other person involved in 
the case has mentioned anything about the appellant. Thus the 
statement ofShri Varyam Singh who himself accepted as evidence 
whereas the claim of the appellant is supported by way of 
corroborative statements under Section I 08 of the Customs Act 
1962 and documentary evidence is acceptable as credible evidence 
in his favour. Moreover the appellant has not laid any claim on the 
impugned gold under seizure in this case. 
Keeping the above in view the finding of the Adjudicating Authority 
about the appellant are not fair, legal and based on facts and hence 
the penalty imposed on the appellant is hereby set aside." 
(F) Based on the
observations and findings rendered in the aforesaid 
order dated 25.01.2008, a petition under Section 482 of the Criminal 
Procedure Code being Crl. M.C. No. 460 of2009 was filed on behalf of 
the respondent in the High Court of Delhi at New Delhi. It is relevant to 
note that in the petition itself two addresses of the respondent were 
given,-one of Dubai and the other of Delhi. The affidavit in support of 
the petition was filed by none other than Shri Kanwar Bhan, the brother 
of the respondent. It was submitted on behalf of the Department that 
the respondenthad not joined investigation and as such the instant petition 
did not deserve any consideration and that there were not two Pramod 
Kumars but only one person having two addresses. The High Court by 
its judgment and order under appeal, allowed the petition and quashed 
Complaint No.66/1/96 pending before the Additional Chief Metropolitan 
Masistrate, New Delhi. lt was observed by the High Court as under:-
"The entire evidence sought to be relied upon by the respondent 
department against the petitioner is the same, that was before the 
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(2016] 2 S.C.R. 
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Appellate Authority and since the Appellate Authority had 
considered the entire evidence and con1e to above conclusion. I 
consider that no useful purpose would be served by continuing 
with the prosecution against the petitioner before the trial court." 
4. The exoneration of the respondent in the adjudication proceeding,s 
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was the basis for petition under Section 482 Cr.P.C. and such exonerntion 
certainly weighed with the High Court. In Collector lll Customs v. 
LR. Mebvaui', question ~us. I & 2 posed before the Constitution Bench 
of this Court were as under:-
"(i) Whether the prosecution from which these criminal revision 
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petitions arose is barred under A1ticle 20(2) of the Constitution as 
against accused I and 2 in that case by reason of the decision of 
the Collector of Customs in the proceedings under the Sea Customs 
Act? 
(ii) Whether under any circumstance the finding of the Collector 
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of Customs that the I" and 2"' accused are not proved to be 
guilty operated as in issue estoppel in the criminal case against 
those accused?'' 
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5. The observations of the court in respect of aforesaid questions 
\Vere as under:-
·'8 ...... The rule laid down in that decision was adopted by this 
Court in Pritam Singh v. State of Punjab, and again in N.R. Ghose 
v. State of W.B. But before an accused can call into aid the 
above rule, he must establish that in a previous lawful trial before 
a competent court, he
has secured a verdict of acquittal which 
verdict is binding on his prosecutor. 
In the instant case for the 
reasons already mentioned. we are unable to hold that the 
proceeding before the Collector of Customs is a criminal trial. 
From this it follows that the decision of the Collector does not 
an1ount to a verdict of acquittal in t:1vour of accused I and 2:· 
6. A subsequent three-Judge Bench in K.G. Premslumkar v. 
/11spector of Police ' considered the effect of the decision of a civil 
court on criminal proceedings and it was concluded as under:-
'"30 .... What emerges from the aforesaid discussion is -(I) the 
'(1969) 2 SCR 438 
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'12002) 8 sec 87
AIR CUSTOMS OrFICER IGI NEW DELHI v. 
PRAMOD KUMAR DHAMIJA [UDAY U. LAUT. J.] 
previous judgment which is final can be relied upon as provided 
under Sections 40 to 43 of the Evidence Act: (2) in civil suits 
between the same parties, principle ofresjudicata may apply: (3) 
in a criminal case, Section 300 Cr.P.C. makes provision that once 
a person is convicted or acquitted. he may not be tried again for 
the same offence if the conditions mentioned therein are satisfied: 
( 4) if the criminal case and the c ivi I proceedings arc for the same 
cause, judgment of the civil court would be relevant if conditions 
of any of Sections 40 to 43 are satisfied, but it cannot be said th~t 
the same would be conclusive except as provided in Section 41. 
Section 41 provides which judgment would be conclusive proofof 
what is stated therein. 
31. Fu11her, the judgment, order or decree passed in a previous 
civil proceeding, if relevant, as provided under Sections 40 and 42 
or other provisions of the Evidence Act then in each case, the 
court has to decide to what extent it is binding or conclusive with 
regard to the matter(s) decided therein .... 
32. In the present case, the decision rendered by the Constitution 
Bench in M.S. Sheriff case would be binding, wherein it has been 
specifically held that no hard-and-fast rule can be laid down and 
that possibi I ity of conflicting decision in civi I and criminal cou11s is 
not a relevant consideration. The law envisages 
'such an
eventuality when it expressly refrains fro1n 
n1aking 
the decision of one court binding on the other, or even relevant. 
except for I im ited purpose such as sentence or damages"'. 
7. The exoneration in related adjudication proceedings and the effect 
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thereof on criminal proceedings again came up for consideration before 
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a three-Judge Bench of this Court in R11d/1esltyam Kejriw11/ v. State of 
West Bengal muf Ant>lfter'. In his dissenting opinion P. Sathasivam, J. 
(as the learned Chief Justice then was) concluded that there was nothing 
in Foreign Exchange Regulation Act, 1973 to indicate that a finding in 
adjudication is binding on a court in prosecution under Section 56 of Act 
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or that the prosecution under Section 56 depended upon the result of the 
adjudication under the Act. C.K. Prasad J., speaking for the majority 
summed up as under:-
"38. The ratio which can be culled out from these decisions can 
) (201IJ3 sec ss1 
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[2016] 2 S.C.R. 
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broadly be stated as follows:-
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(i) Adjudication proceedings and criminal prosecution can be 
launched simultaneously; 
(ii) Decision in adjudication proceedings is not necessary before 
initiating criminal prosecution; 
(iii) Adjudication proceedings and criminal proceedings are 
independent in nature to each other; 
(iv) The finding against the person facing prosecution in the 
adjudication proceedings is not binding on the proceeding for 
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(v) Adjudication proceedings by the Enforcement Directorate is 
not prosecution by a competent court oflaw to attract the provisions 
of Article 20(2) of the Constitution or Section 300 of the Code of 
Criminal Procedure; 
(vi) The finding in the adjudication proceedings in favour of the 
person facing trial for identical violation will depend upon the nature 
of finding: If the exoneration in adjudication proceedings is on 
technical ground and not on merit, prosecution may continue; and 
(viii) In case of exoneratiufi. however, on merits where the 
allegation is found to be not sustainable at all and the person held 
innocent, criminal prosecution on the same set of facts and 
circumstances cannot be allowed to continue the underlying 
principle being the higher standard of proof in criminal cases." 
8. The majority judgment in Radlteys!tyam Kejrbval ''· Sf{lfe of 
.West Bei'l1:al and A11otlter1 is relied upon by the respondent in support 
of the
submission that the exoneration in the present case being on 
merits, criminal prosecution on the same set of facts ought not to be 
allowed to continue. Ms. Ranjana Narayan, learned Advocate appeared 
forthe appellant while Mr. Naveen Malhotra, learned Advocate appeared 
for the respondent. We have considered rival submissions and gone 
through the record which brings out following crucial facets:-
(a) The order in original dated 30.09.1999 referred to the statement 
of Kanwar Bhan, the brother ,,fthe respondent, which clearly suggests 
that the respondent had come down to Delhi in April, 1996. This statement 
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'(2011)3SCC581
AIR CUSTOMS OFFICER 1GI NEW DELHI v. 
569 
PRAMOD KUMAR DHAMIJA [UDAY U. LAUT, J.] 
is not even referred to in the appellate order dated 30.09.1999 but a 
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finding is rendered that the respondent had not visitea India after 
September, 1994. 
(b) The respondent was declared a proclaimed offender and had 
not participated in any of the proceedings personally. In the circumstances 
noweightage could be given to copies of the passport submitted in support 
B 
of the assertion that he had not visited India after September 1994. 
(c) The appellate order further discloses that the statement of 
Varyam Singh did allege the involvement of the respondent. In law, if 
such statement is otherwise admissible and reliable, conviction can 
lawfully rest on such material. 
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(d}The' finding in the appellate order that there were two Pramod 
Kumars, is completely incorrect and unstateable. 
In the back drop of these facts it cannot be accepted that the 
exoneration of the respondent in the aOjliaication proceeding v,:as on 
merits or that he was found completely innocent. 
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9. Considering the facts and circumstances of the case, we are of 
the view that the High Court was not right and justified in accepting the 
prayer for quashing of the proceedings. We, therefore, allow this appeal 
and set-aside the view taken by the High Court. Case No. 66/1/96, on 
the file of the ACMM, New Delhi, shall be proceeded with, in accordance 
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with law. 
Deyika Gujral 
Appeal allo\\·ed.