IMPORTANT POINT
Vice of double jeopardy would not apply to the prosecution under Customs Act even when the enquiry proceedings held by the Customs Authorities exonerated the accused.

JUDGMENT

B. Suresh, J. - This is an application by accused Nos. 1 and 2 to have the prosecution against them quashed on the ground that in a Customs enquiry they have been let off.

2. The brief facts are as follows: On 18th August 1979, the Police Officers of Bhiwandi Police Station arrested the Accused while they were in an Ambassdor Car. They were arrested under the Customs Act and a complaint has been filed against them under Sections 135(i)(a) and 135(i)(b) punishable under Clause (ii) of subsection (i) of Section 135 of the Customs Act. The case has been filed after containing sanction in that behalf on 16th October 1981. In the meanwhile, in the enquiry proceedings held by the Customs Authorities, the Additional Collector of Customs, Bombay, intestinally imposed a penalty of Rs. 2000/on each of the accused. The accused prefened an Appeal and by an Order dated 11th December 1981, the Order of importation of the penalty was set aside and the Appeal was allowed.

3. Relying on this order, the accused made an application before the learned Magistrate at Bhiwandi for quashing the proceedings. The learned Magistrate by his Order dated 15th February 1985 dismissed the said application. The present application is against the said Order of the learned Magistrate.

4. Miss Nane appearing for the applicants submitted that the section itself is bad in law inasmuch as the Appellate Authority under the Customs Act has exonerated the accused. She also submitted that, in my event, since the accused have been exonerated under the Customs Act and seizure of the goods is not under the Customs Act, the prosecution cannot rely on the presumption that is provided under Section 123 of the Customs Act. It is not necessary from to go into these questions at this stage as all these questions will be considered by the learned Magistrate as and when he proceeds with the case.

5. The only limited question is whether the learned Magistrate was not right in refusing to grant an application for quashing the proceedings. It is well settled that an enquiry under the Customs Act is not a prosecution and, therefore, it cannot be said that the vice of double jeopardy would ever apply to a case of this type. In the result, I find nothing wrong with the order passed by the learned Magistrate dated on 15-2-1985. I, therefore, pass the following order.

Rule discharged. Stay, if any, granted, stands vacated.