Malik Sharief-Ud-Din, J.

( 1 ) THE petitioners are aggrieved of a complaint case No. 619/1 filed against them by the Customs Authorities under sections 135 and 132 of the Customs Act in which they were charged under sec- tion 132 of the Customs Act. The allegation against the petitioners is that they had exported a consignment of precious stones which was grossly undervalued. This consignment of the precious stones was confiscated under sec 113 (d) and (i) of the Customs Act and a penalty of Rs. 50,000. 00 was imposed on the petitioners under section 114 of the Customs Act by the Collector of Customs. This was taken in appeal before the Central Board of Excise and Customs, New Delhi. The Central Board of Excise and Customs has set aside the order of the Collector after allowing the appeal. In effect, the Central Board of Excise and Customs came to the conclusion that the goods were not under-valued. In short, the Central Board of Excise and Customs did not believe in the allegation levelled against the petitioners in the adjudication proceedings. This finding was arrived at by the Central Board of Excise and Customs on 23rd of May 1980. The prosecution against the petitioners was actually initiated in February 1977 and the charges were framed on 27th June 1983.

( 2 ) THE primary contention of Mr. Chawla is that if the Customs department had no case against the petitioners for purposes of adjudication proceedings as has been held by the Central Board of Excise and Customs, the petitioners cannot be prosecuted on the same facts.

( 3 ) BEFORE I deal with this aspects of the matter I find it necessary to take notice of the preliminary objection of the counsel for the respondents that the petition is not maintainable as it is barred by the application of doctrine of res-judicata. This contention is also urged on the ground that the earlier petition Criminal Misc. (Main) No. 1959 of 1986 filed by the petitioners has been dismissed in limine. Mr. Chawla states that this petition was dismissed as withdrawn, and that since the petition has not been dismissed on merits, the doctrine of res-judicata is not applicable. Reliance in this regard is placed by Mr. Chawla on Daryao and others vs. The State of U. P. and others, (1962) I S. C. R. 574. In this judgment the supreme Court has very clearly opined that if the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32 of the Constitution. This is so held as in such a situation there will be no decision on merits by the court. The Supreme Court has held that the doctrine of res-judicata will only be applicable if the order is on merits as in that event there will be a speaking order in existence. In that view of the matter the objection is over-ruled as the earlier petition has been dismissed as withdrawn.

( 4 ) ADVERTING to the point at issue the admitted case of the parties is that the Collector of Customs order imposing penalty upon the petitioners for gross under-valuation of the exported consignment has been set aside by the Central Board of Excise and Customs which has practically found that there was no undervaluation. This was done on 23rd May 1980 while the prosecution on the basis of same set of facts was initiated in February 1977. Mr. Chawla s contention is that if the departmental adjudicating authority has found no contravention of the provisions of the Act, the petitioners cannot be prosecuted for the same, Reliance in this regard is placed on Uttam Chand and others vs. Income-Tax Officer, Central Circle, Amritsar, (1982) 133 I. T. R. 909. This case clearly upholds the contention raised by Mr. Chawla that the respondents cannot initiate prosecution on a set of facts and evidence which the departmental authorities themselves disbelieved to be existing, and that, in such a situation court will be justified in interfering under section 482 of the Code of Criminal Procedure. In S. K. Sinha vs. S. K. Shingal and another, 1987 (1) Crimes 84

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