1. By way of this common order, I shall dispose off 5 connected revision petitions Nos. 232/2023, 233/2023, 234/2023, 235/2023 and 236/2023 as all of them are arising from the same CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 2 of 26 impugned order dated 24.02.2009. Vide order dated 24.02.2009, the charges under Section 132 and 135 of Customs Act, 1962 was directed to be framed as against all the accused persons/ revisionists.

2. The brief facts of the complaint case, which was filed before the Ld. Trial Court, are as follows :-

valuation of goods imported by them from their principals in UK to evade huge amount of Customs duties.

(b). That accused No. 1 is declaring the goods imported by them as "Concentrating of Alcoholic Beverages" without disclosing the fact that they are importing Scotch Whisky of about 60% v/v (volume by volume) concentration due to which their goods are being assessed under different headings and not in correct classification under sub heading No. 2208.30 as Scotch Whisky.

(c). That accused No. 1 is importing 3 types of full blend matured whiskeys, namely, Something Special (12 years old) Passport (3/5 years old and 100 Pipes (3/5) years old). These are CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 3 of 26 imported at about 60% v/v concentration that the strength of scotch whiskey is reduced by adding demineralised water and bottled at 42.8% v/v strength and is sold by describing the goods as 'Scotch Whiskey--Distilled and Blended in Scotland, bottled in India'.

(d). That accused No. 1 imported vatted Malt Whisky (100% pure malt spirit) used in the production of admix Whisky, namley Royal Stag, Oaken Glow, Blenders Pride and Imperial Blue.

(e). That accused No. 1 influenced the suppliers to supply the goods to them at a suppressed price of around Rs. 50 per Bulk Litre whereas other importers in India have been importing similar goods at a price of more than Rs. 100 per Bulk litre.

(f). That the accused No. 1 misdeclared the value of 12 year old brand Whisky, namely, Something Special and evaded duty to disturb the market equilibrium.

2.3 DRI conducted the inquiry and found that accused No. 1 started their imports during December 1994 and had imported 133 consignments till June 1999 and 50 more consignments were imported by June, 2000. It was found that in all the bills of entry and documents, the goods were declared as "Concentrates of Alcoholic Beverages" and was assessed under Heading 2208.90 during the period from 05.01.1995 to 12.01.1995 under various Headings. On scrutiny of the Bills of Entry, the assessment of the duty of two Bills of Entry No. 201110 dated 05.01.1995 and 203035 dated 12.01.1995 filed at Air Cargo Complex was found to be incorrect and they were assessed to the duty at the rate of 400% advalorem whereas they have been assessed at Rs. 300 per Bulk litre.

CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 4 of 26 2.4 It was found that in the Bill of Entry No. 105223 dated 26.05.1997, the quantity declared was 6946.40 bulk litre whereas the correct quantity is equivalent to 11745 bulk litre. Similarly, in the Bill of Entry No. 108550 dated 13.08.1997 the quantity was shown as 7505 bulk litre as against the invoice description of 7505 alcoholic litres which was equivalent to 12562 bulk litre. 2.5 It was found that by mis-declaration, accused No. 1 has cleared excess quantity of the goods and contravened the provisions of the import policy in force especially since whisky falls under the category of restricted items of imports.

2.6 The inquiry was conducted with the company M/s Jose Seagram & Sons concerning the supply of their goods to the Indian Importers to ascertain the relationship between the accused No. 1 and the supplier. The suppliers agreed that their supplies to the Indian buyer is at a value which is considerably lower to those at which such goods are supplied to other affiliates. 2.7 It was found that goods were declared by the exporters as " Concentrates of Alcoholic Beverages" in the import invoices but in the export declarations the said goods were declared as "Wholly malt scotch whisky and Scotch Blend Whisky (100 pipers of Passport or Something Special).

2.8 That certain emails in relation to the pricing of import Whisky in India was scrutinized and it was found that the import prices in the supplies from M/s Chivas Brothers/Jose Seagram, UK was considerable in informal manner and therefore, the possibility of the declared value relationship was not ruled out.

CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 5 of 26 2.9 Further, the goods of accused No. 1 were compared with the other goods sold in Indian market and it was found that the comparable goods imported by the other importers sold in Indian market at comparable and competitive prices have been imported at a much higher price than those declared by accused No. 1. 2.10 It was also found that Malt Spirit was imported by various other importers at more than 1.50 Pound Sterling per Bulk litre as against 0.73 Pound Sterling per Bulk litre declared in the import documents of accused No. 1.

3. After the inquiry was conducted, the complaint was filed before the Ld. ACMM-01, New Delhi on 22.12.2000 u/s 132 / 135(1) (a) of Customs Act.

4. The specific allegations qua each of the accused persons are as follows as stated in the complaint:-

5. After complaint was filed, the cognizance was taken and all the accused persons were summoned. Vide impugned order dated CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 7 of 26 20.10.2008, Ld. ACMM-01, New Delhi directed that the charges for the offence punishable u/s 132 / 135 of the Customs Act be framed against all the accused persons. Against the said order, five revision petitions have been filed by all the accused persons separately.

6. Revisionist No. 1 Pernod Richard India Pvt. Ltd. is the company in which the accused No. 1 Company amalgamated on 12.01.2004. It has challenged the impugned order on the following grounds:

7.2 It is stated by the revisionist No. 2 that as regard issue number i & ii, both the issues were decided by CESTAT vide order dated 25.03.2003 in favor of the revisionist. As regard issue No. (iii), it is stated that:

(b). The correctness of the declared value of the goods were within the knowledge of the Department through their British counterparts in UK.

(c). That there was no mis-declaration of the value of the goods which is admitted by the complainant. Further, the company could not have made any monetary benefits from the mis declaration CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 10 of 26 from the value of imported goods and no reason has been given by the Ld. Trial Court as to how the accused company gained monetary benefits from the alleged mis declaration of the value of the goods.

(d). That the Ld. Trial Court has failed to appreciate that at the time of filing of the complaint by the respondent, no provisional assessment was finalized by the department and without final assessment, no show cause notice could have been issued leading to the criminal proceedings against the accused company.

(e). That the Ld. Trial Court failed to appreciate the order dated 25.03.2003 of Hon'ble CESTAT wherein it was held that the goods imported under 10 bills of entry were rightly classified by the accused company under heading 2208.10 as "concentrated alcoholic beverages" and that the same were not classified as "whisky".

(f). That the issue regarding the revisionist applying the white ink to manipulate the description of the goods in the import documents was settled in his favor by CESTAT vide order dated 25.03.2003 and the Ld. Trial Court failed to appreciate the same.

8. The revisionist No. 3 is Param Uberoi (Accused No.

3) and he has challenged the impugned order on the following grounds:

Therefore, no vicarious liability can be fixed on him as he was not the officer of the company at the time of commission of the offence.

CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 11 of 26 8.2 That the allegation against the revisionist is that he does not seem to have taken any corrective measures to set the matter right. The allegations does not make out any case of violation of Section 132 / 135 Customs Act against the revisionist particularly when issue of finalization of provisional assessment has not attain finality as the matter is pending before Hon'ble Supreme Court of India.

8.3 That the Ld. Trial Court failed to take into consideration the statement of the revisionist dated 16.06.2000 under Section 108 of the Act, which is admissible in evidence.

8.4 That the Ld. Trial Court failed to appreciate that there is no evaluation by the complainant or any evidence to conclude as to what the final assessment value of CAB was as on September 1999 or thereafter, during the subject period of the complaint when the revisionist was the CEO of the Company.

9. The revisionist No. 4 Sunil Mendiratta (Accused No.

4) has challenged the impugned order on the following grounds:-

10.1 It is stated by the revisionist No. 5 that he had joined Seagram Manufacturing Limited as Manager Finance in October 1994. He was also working with the accused company in capacity of Senior Manager Finance and further re-designated as Controller Finance. He left the service of the company in March 2001. 10.2 That the revisionist was neither an exporter nor importer in the transaction. All the acts and omissions have been attributed to him as he was employee of the company. The court vide order dated 27.08.2001 directed that the notice under Section 28 of the Customs Act issued to the revisionist be treated as the one issued under Section 18 (2) for the purpose of finalization of pending provisional assessment. As the penalty proceedings against the revisionist was dropped, he could not have been prosecuted on the same allegations in the present proceedings.

10.3 That the issue regarding the revisionist applying the white ink to manipulate the description of the goods in the import documents was settled in his favor by CESTAT vide order dated CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 14 of 26 25.03.2003 and the Ld. Trial Court failed to appreciate the same. 10.4 That there was no mis-declaration of the value of the goods which is admitted by the complainant. Further, the company could not have made any monetary benefits from the mis declaration from the value of imported goods and no reason has been given by the Ld. Trial Court as to how the accused company gained monetary benefits from the alleged mis declaration of the value of the goods. 10.5 That the offence of "mis-declaration of value" of goods in Section 135 (1) (a) of the Customs Act, 1962 came into effect from 14.05.2003 and cannot have retrospective effect for the period in question, which is from 1994 to 2000.

10.6 That the Ld. Trial Court failed to consider that the declaration of the accused company is not false and is not covered under Section 132 of the Customs Act, 1962 as the correctness of the value of the goods was confirmed to be correct by the Department through her Majesty's Customs in the United Kingdom. 10.7 That the Ld. Trial Court failed to appreciate that at the time of filing of the complaint by the respondent, no provisional assessment was finalized by the department and without final assessment, no show cause notice could have been issued leading to the criminal proceedings against the accused company. 10.8 That the Ld. Trial Court failed to appreciate the order dated 25.03.2003 of Hon'ble CESTAT wherein it was held that the goods imported under 10 bills of entry were rightly classified by the accused company under heading 2208.10 as "concentrated alcoholic beverages" and that the same were not classified as "whisky".

CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 15 of 26 10.9 That the Ld. Trial Court has grossly erred in holding that CESTAT has upheld the imposition of the penalty whereas it was never an issue before the Commissioner or the CESTAT.

11. I have heard the arguments of Ld. Sr. Counsel Sh. Maninder Singh along-with Ld. Counsel Sh. Rajesh Balraj for Petitioner Company, revisionist Param Ubroi and Harvinderjit Singh Bhatia, Ld. Counsel Sh. R Parthasarthy for revisionist Akram Fahmi, Ld. Counsel Sh. Mohit Mathur and Mohd. Shahrukh for revisionist Sunil Mendiratta and Ld. ASG Sh. Jayant K. Sud along-with Ld. Senior Standing Counsel Sh. Satish Aggarwal for the respondent in detail on various dates and have perused the records. I have also gone through the trial court record, all the convenience compilations, written arguments and various judgments as relied upon during arguments.

12. At the outset, the perusal of the Trial Court Record reflect that the impugned order was first challenged by the revisionists before Hon'ble High Court of Delhi vide criminal revision petition No. 251/2009. Vide order dated 16.12.2014, the Hon'ble High Court of Delhi dismissed the revision petitions with the liberty to the revisionists to appear before the Sessions Judge to argue the petitions. The file was transferred to the court of District & Sessions Judge, Patiala House Court to either hear the matter himself or to assign the same to any other court of competent jurisdiction and that is how, the present revision petitions came up for hearing before the Sessions Court.

13. At the outset, the perusal of the revision petitions reflect CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 16 of 26 that the main ground as alleged in all the revision petitions as against the impugned order is that the Ld. Trial Court did not take into account the ground as alleged by the revisionist for seeking discharge and also the documents and orders of the CESTAT and has passed the impugned order merely on the basis of whatever has been alleged by the respondent.

14. The present revision petitions are against the order on the charge. The perusal of the revision petition reflect that the revisionist has filed six convenience compilation along-with the revision petition. The perusal of the convenience compilation volumes reflect that the revisionist has filed various documents/ orders passed in other proceedings which were not before the Ld. Trial Court at the time of passing of the impugned orders. This court directed the revisionist to bifurcate the documents which were before the Ld. Trial Court and the new documents which have been filed for the first time before this court. The revisionist has filed one list on 21.07.2023 pursuant to the said direction. The perusal of the said list reflect that apart from the documents which are already on the trial court record, there are various other documents/ orders which has been filed by the revisionist for the first time before this court. The said documents are in the form of the orders of Hon'ble High Court of Delhi, orders of CESTAT, circulars of Ministry of Finance and Ministry of Commerce, the revisionist company documents, the copy of import rate control license, copy of the order passed by Commissioner of Customs, copy of the Judgment of Hon'ble Supreme Court of India, copy of the order of Hon'ble Bombay High CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 17 of 26 Court, copy of the order of Hon'ble Madhya Pradesh High Court, Hon'ble Gujarat High Court etc. These documents were not before the Ld. Trial Court at the time of passing of the impugned order.

15. Ld. Counsel for the revisionist has argued that these documents can be considered by this court as these are the public documents being the orders passed by various courts/ tribunals. Ld. Counsel for the respondent has argued that no fresh document can be considered by this court while deciding the revision petition.

16. At the outset, it is well settled principal of law that at the time of framing of the charge in a complaint case, the court is required only to go through the pre charge evidence, the complaint and the documents so proved during pre charge evidence before framing the prima facie view regarding the charge. The defence of the accused cannot be considered at the time of framing of the charge. However, all those documents which have been produced by the accused and have been put to the witnesses at the time of pre charge evidence is to be considered. As regard the judgments and the orders passed by various courts in various parallel proceedings qua the same transactions is concerned, the same can be considered by the trial court only if it is so produced and proved as per law.

17. Further, the power of the revisional court is limited and the revision court is required to find out the legality/ illegality of the impugned order. In the revision petition, the court is required to examine the legality and propriety of an order passed by the subordinate court and in doing so, the revisional court is required to consider only those facts, evidence and documents which were CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 18 of 26 before the Ld. Trial Court at the time of passing of the impugned order. The fresh documents which were not before the Ld. Trial Court at the time of the passing of the impugned order cannot be looked into in order to find out the legality/ illegality of the impugned order.

18. The first ground which has been taken by the revisionist is that the accused company has amalgamated into petitioner company and therefore, the criminal proceedings against the accused company cannot continue. It is argued by the Ld. Counsel for the revisionist that the above ground was taken before the Ld. Trial court but the same has not been dealt by the Ld. Trial court in the impugned order. The perusal of the impugned order reflect that the above ground is not mentioned in the impugned order. Further, the perusal of the trial court record reflect that there is nothing on the trial court record to appreciate the contention of the Ld. Counsel that the said ground was taken before the Ld. Trial court but Ld. Trial Court did not mention the same in the impugned order.

19. However, perusal of the impugned order reflect that there is an error apparent on the face of the order and the impugned order has not been passed considering the pre charge evidence so led before the Ld. Trial Court and the impugned order has been passed as if the case instituted before the Ld. Trial Court was not the complaint case but the case instituted on police report. Further, there is incorrect finding given as regard the order of Hon'ble CESTAT dated 25.03.2003.

20. There is a different mode of trial in a warrant triable CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 19 of 26 case instituted on a police report and the case instituted as a complaint case. In the present case, the case instituted before the Ld. Trial Court was a warrant triable case on a complaint of the respondent. The procedure of trial of warrant case by the Magistrate is given in Chapter XIX of CrPC . Part-B of Chapter XIX deals with the procedure in cases instituted otherwise than on police report. It runs from Section 244 to Section 250 CrPC. Section 244 CrPC provides that in a warrant case instituted otherwise than on a police report, when the accused appears or brought before the Magistrate, the Magistrate shall proceed to hear the prosecution and to take all such evidence as may be produced in support of the prosecution. Section 245 CrPC provides that after taking all the evidence as referred to in Section 244 CrPC, if the Magistrate considers that no case is made out against the accused, the Magistrate shall discharge the accused after recording the reasons for the same. However, if the Magistrate does not discharge the accused and forms the opinion that there is a ground for presuming that the accused has committed an offence, the Magistrate shall proceed with framing of the charge under Section 246 CrPC.

21. Therefore, as per scheme of CrPC , whenever any warrant triable case is instituted otherwise than on a police report, the pre charge evidence is to be taken and on the basis of the evidence so taken, the Magistrate is to form the prima facie opinion as to whether there is a prima facie case against the accused to proceed further with the trial or the accused deserves discharge. However, it is not so if the warrant triable case is instituted on a CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 20 of 26 police report as in such cases, on the basis of police report and the documents filed along-with it, the Magistrate shall proceed with faming of the charge or discharge of the accused, as the case may be. There is no provision of taking the evidence of the complainant prior to framing of the charge if a warrant triable case is instituted on a police report. However, Section 244 to Section 246 of CrPC mandate the taking of the evidence as produced by the complainant in the form of pre charge evidence and the order on charge must be based upon the appreciation of such pre charge evidence.

22. The perusal of the impugned order reflect that the Ld. Trial Court while deciding the issue of incorporation of "mis- declaration of value" as an offence being introduced only in 2003 and that the penal provision cannot be introduced retrospectively has held as under:-

the legislation has clarified one of the ground to evade duty. In this way, the accused cannot be discharged on this ground".

23. While deciding the issue of mens rea that accused did not fraudulently mis-declare the value of the imported goods, the Ld. CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 21 of 26 Trial Court observed as under:

(iii) The accused contacted the supplier of imported goods to prepare Bills as suited to them same which is clear from the correspondence between the accused and supplier, as cited by the complainant.

(iv) If complaint is presumed to be true at this stage, there is lot of difference between the rates of similar Whiskey available in the market and the three brands of Whiskey sold by the accused.

(v) As per complaint, the accused manipulated the documents by applying white fluid.

A rumination of all these facts hint towards the ill-design of accused, in declaring less value of the imported goods apparently to evade custom duty. In this way, in my opinion there is sufficient material on record pointing towards the involvement of accused persons in offence in question".

CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 22 of 26

24. Though, it is stated in the impugned order that the Ld. Trial Court has gone through the evidence but the evidence as lead by the respondent has not been discussed in the impugned order. From the above observations of the Ld. Trial Court as stated in Para No. 24 & 25 above, it is clear that the Ld. Trial Court did not discuss the three witnesses examined by the complainant and also the documents so exhibited during their testimony and the opinion given by the Ld. Trial Court is on the basis of presumption that the complaint is taken as true. The opinion given by the Ld. Trial Court at point (i), (ii), (iii), (v) is nothing but what has been stated in the complaint. The evidence led by the respondent to prima facie prove the above contentions and the documents so exhibited along-with what has come in the cross examination of the witnesses has not been discussed in the impugned order. The Ld. Trial Court only reiterated what has been stated in the complaint without discussing the pre charge evidence which is against the provisions of Cr.PC for warrant triable cases instituted as a complaint case. The opinion given by the Ld. Trial Court at point No. (iv) is nothing but the presumption of the Ld. Trial Court that if the complaint is taken to be true then there is a difference of price of similar wisky available in the market and sold by the accused. Therefore, the Ld. Trial Court either reiterated the version of the complainant or presumed the complaint to be true without going through the evidence so led.

25. There is no scope of presumption in the criminal trial. Section 244 to Section 246 of the CrPC clearly state that the prima facie opinion as to the charge/ discharge has to be based upon the CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 23 of 26 evidence which has been lead by the complainant. Once the evidence has been led, the order on charge must be based upon such evidence and cannot be on the basis of the presumption by the court that the complaint is true. There is a difference between the stage of cognizance and the stage of charge. At the time of taking the cognizance, the court may consider the complaint to be true and accordingly, may take cognizance on the same. However, once the cognizance is taken and the complainant has produced the witnesses to prove the complaint and also the documents along-with it and those witnesses have been cross examined by the defence, the order on charge must be based upon such pre charge evidence.

26. In the impugned order, the Ld. Trial Court considered the ground taken by the revisionist that since the adjudication proceedings were initiated by the complainant are complete, on the same facts, the accused cannot be prosecuted for criminal offence. While deciding the above issue, the Ld. Trial Court relied upon various judgments and in order to distinguish the present case from the various judgments, the Ld. Trial Court has opined as under:

27. Ld. Counsel for the revisionist has argued that the Ld. Trial Court has wrongly observed that CESTAT has upheld the order of Commissioner of Custom, imposing penalty upon the accused. I completely agree with the submissions of Ld. Counsels for revisionists. The perusal of order of CESTAT dated 25.03.2003 CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 24 of 26 reflect that nowhere CESTAT has upheld the Order of Commissioner of Custom imposing penalty upon the accused and it is so wrongly observed in the impugned order. Therefore, there is an error on the face of record in the impugned order.

28. Perusal of the order of the CESTAT dated 25.03.2003 reflect that at Page No. 25 of the said order, it has been held that the goods imported under 10 bills of entry are to be classified under heading 2208.10 which covers exclusively compound alcoholic preparations of a kind used for manufacturing beverages. The perusal of the said order reflect that the order of the Commissioner was set aside and was remanded back for fresh consideration. Therefore, it is clear that the Ld. Trial Court made the wrong observations regarding the CESTAT order without going through the said order and read the said order as against the revisionist, which is not so.

29. On the basis of the above observations, the impugned order dated 20.10.2008 is set aside and the matter is remanded back to the Ld. Trial court with the direction to pass a proper reasoned order on the basis of the evidence so led before the Ld. Trial Court keeping in mind the provisions of Cr.PC applicable on warrant triable cases instituted as a complaint case.

30. Further, the revisionists are allowed to place before the Ld. Trial Court all the documents including various judgments/ orders passed by various courts/ tribunals concerning the present case, which have been filed by them before this court and which were not before the Ld. Trial Court at the time of passing of the impugned order and the Ld. Trial Court may consider those CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 25 of 26 documents as per law.

31. Further, the Ld. Trial Court shall make every endevour to pass the fresh order on charge within the period of six months from today.

32. It is worthwhile to mention that I was posted as ASJ-07, PHC and the arguments of the present case was going on before me. While the arguments were going on, I was transferred from the Patiala House Court to Saket Court as ASJ-06 (POCSO) South East, Saket on 02.02.2023. The Hon'ble High court of Delhi vide order dated 22.02.2023 in TR.P (CRL) 27/2013 assigned the present revision petition to me and accordingly, all the revision petitions along-with the TCR was transferred to South-East, Saket.

33. Since, the Ld. Trial Court is the court of Ld. ACMM, Patiala House Court, the Trial Court Record along-with the copy of the order be sent to the court of Ld. ACMM Patiala House Court through Ld. Principal & District Judge, Patiala House Court through Ld. Principal & District Judge, South-East, Saket Court.

34. All the parties are directed to appear before Ld. Trial Court on 20.04.2024 at 02:00 PM.

35. The revision file be consigned to the Record Room as per rules.

36. The order be uploaded on the website as per rules. Announced in Open Court on 28th March, 2024. (Anu Aggarwal) ASJ-06 POCSO Act, South-East District, Saket Courts, New Delhi CRIMINAL REVISION NO. 232/2023 PERNOD RICHARD INDIA PVT.LTD. VS. DRI CRIMINAL REVISION NO. 235/2023 AKRAM FAHMI VS. DRI CRIMINAL REVISION NO. 236/2023 PARAM UBEROI VS. DRI CRIMINAL REVISION NO. 233/2023 SUNIL MEHDIRATTAVS. DRI CRIMINAL REVISION NO. 234/2023 HARVINDERJIT SINGH BHATIA VS. DRI Page 26 of 26