IMPORTANT POINT
Adjudication by civil court cannot be relied upon by criminal court, more so when the forum is not a court and the adjudication is not on merits.

JUDGMENT

Uday U. Lalit, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated 04.1.2011 passed by the High Court 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 of ten tolas each, weighing 21454.400 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 of Ranbeer Singh, he put both the packets in dry ice trays and as per prearrangement 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, Ranbeer Singh and four others and accordingly Complaint No. 66/1/96 was filed in the Court of ACMM, New Delhi. The respondent was declared “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. 66/99 dated 30.09.1999 was passed by the Additional Commissioner of Customs, IGI Airport, New Delhi imposing penalty of Rs.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 number 9811028643 obtained from Essar Cell Phone mobile phone services, that on 21.04.1996 and 27.04.1996 telephone calls were made to telephone number 6914037; 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 6914037 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 Sing