[2016] 2 S.C.R. 561

AIR CUSTOMS OFFICER IGI NEW DELHI

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

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

in the Court of ACMM, New Delhi. The respondent was declared H

A "proclaimed offender" by the Ld. ACMM, New Delhi in the subject case.

(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

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

A 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 B 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 c 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 D 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?''

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

H '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 tht 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

thereof on criminal proceedings again came up for consideration before F 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 G 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 H

A broadly be stated as follows:-

(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 c criminal prosecution;

(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

'(2011)3SCC581

is not even referred to in the appellate order dated 30.09.1999 but a A 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.

' C

(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.

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 E with law.

Deyika Gujral Appeal allo\\ed.