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2016 Supreme(Del) 691
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KAIT, J.
PREM KUMAR - Petitioner
Vs.
CUSTOMS - Respondent
CRL.M.C. 1990/2010
Decided On : 08-02-2016
For the Appellant :Mr. Yogesh Verma, Advocate.
For the Respondent: Mrs. Sonia Sharma, Senior Standing Counsel.
The main legal point established in the judgment is that if a person has already been exonerated by the competent authority on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue against him.
Headnote:
Customs Act - Foreign Currency - Section 132, 135 (1) (a) - 113 (d)(e) & (h), 119, 118 (b), 114(1), 125 - Regulation 5 of Foreign Exchange management (Export and import of Currency) Regulations 2000, Regulation 7 (2)(ii) - Euros 22075, 11925, 1110, 1000 - Rs.6000, Rs.5000, Rs.500, Rs.4,00,000, Rs.2,00,000 - Section 132 deals with false declaration, false documents, etc. Section 135 (1)(a) deals with evasion of duty. The court discussed the provisions of the Customs Act and FEMA Act, and the adjudication order dated 17.10.2007, and concluded that the petitioner cannot be held liable under Section 132 of the Customs Act. The court quashed the complaint no. 19/1/06 pending before the Trial Court with all proceedings emanating therefrom against the petitioner.
Fact of the Case:
The petitioner sought to quash the proceedings of the complaint case no. 19/1/06 titled as Sh. Anil Kumar (Air Customs Officer) vs. Prem Kumar, pending before the court of ld. ACMM, New Delhi for the offences punishable under Section 132 and 135 (1) (a) of the Customs Act, 1962. The petitioner challenged the impugned order in Appeal, and the appellate authority opined that the seized foreign currency is not prohibited goods under Customs Act, 1962 or FEMA. The petitioner was exonerated under Section 135 of the Customs Act, and the only case pending against the petitioner was under Section 132 of the Customs Act, 1962.
Finding of the Court:
The court discussed the provisions of the Customs Act and FEMA Act, and the adjudication order dated 17.10.2007, and concluded that the petitioner cannot be held liable under Section 132 of the Customs Act. The court quashed the complaint no. 19/1/06 pending before the Trial Court with all proceedings emanating therefrom against the petitioner.
Issues: The issues involved were whether the seized foreign currency is prohibited goods and whether it can be released on payment of fine, and whether the petitioner can be held liable under Section 132 of the Customs Act.
Ratio Decidendi: The court held that since the petitioner has already been exonerated under Section 135 of the Customs Act and the EUROS in question were directed to be released in his favour, the consequence of Section 132 of Customs Act becomes irrelevant. The court also stated that in case where accused person has already been exonerated by the competent authority, on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue against him.
Final Decision: The court quashed the complaint no. 19/1/06 pending before the Trial Court with all proceedings emanating therefrom against the petitioner.
SURESH KAIT, J.
CRL.M.C. 1990/2010
1. By way of the present petition, filed under Section 482 Cr.P.C. petitioner has sought to quash the proceedings of the complaint case no. 19/1/06 titled as Sh. Anil Kumar (Air Customs Officer) vs. Prem Kumar, pending before the court of ld. ACMM, New Delhi for the offences punishable under Section 132 and 135 (1) (a) of the Customs Act, 1962.
2. Mr. Yogesh Verma, ld. Counsel appearing on behalf of the petitioner argued that vide order dated 12.03.2007 passed in Original no. 12/2007, Additional Commissioner of Customs, IGI Airport, New Delhi opined that out of 36110 Euros, 34000 Euros were acquired illegally in as much as no evidence as regards their lawful acquisition from an authorized dealer or money changer or otherwise was proved at the time of seizure or in their reply to show cause notice or at the time of personal hearing. Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign visit. These lawfully acquired 2110 Euros, were, however, used to conceal the 34000 Euros.
3. Accordingly vide order dated 12.03.2007, the Additional Commissioner passed the order as under:-
“(i) Absolute confiscation of Euros 22075 and Euros 11925 out of 23185 and 12925 Euros recovered and seized respectively from Sh. Prem Kumar & Sh. Sachin Bharti Under Section 113 (d)(e) & (h) of the Customs Act, 1962.
(ii) Confiscation of 1110 and 1000 Euros out of 23185 and 12925 Euros recovered and seized respectively from Sh. Prem Kumar & Sh. Sachin Bharti under Section 119 of the Customs Act, 1962. However, I give an option to Sh. Prem Kumar to redeem the same on payment of redemption fine of Rs.6000/- and to Sh. Sachin Bharti on payment of redemption fine of Rs.5000/-. The Euros would however be released after obtaining a no objection certificate from the competent Court where the trial of the notices is pending.
(iii) Confiscation of trousers, Olive green suit case of hard top bearing brand name American Tourister and bluish green suit case cum stroller bearing brand name ‘SONADA’ under Section 118 (b) read with Section 119 of the Customs Act, 1962. However, I give an option to Sh. Prem Kumar & Sh. Sachin Bharti to redeem their respective trouser, suit case and stroller on payment of redemption fine of Rs.500/- each. These would however be released after obtaining a no objection certificate from the competent court where the trial of the notices is pending.
(iv) I also impose a personal penalty of Rs.4,00,000/- (Four Lakhs only) on Sh. Prem Kumar under Section 114(1) of the said Act.
(v) I also impose a personal penalty of Rs.2,00,000/- (Two Lakhs only) on Sh. Sachin Bharti under Section 114 (1) of the said Act.”
4. Being aggrieved, the petitioner challenged the aforesaid impugned order in Appeal, wherein it is observed by the appellate authority in its order dated 17.10.2007 as under:-
“The issue involved here is whether the seized foreign currency is prohibited good and whether it can be released on payment of fine. The foreign currency has not been declared as prohibited under Customs Act, 1962 or FEMA.
The Adjudicating Authority in the impugned order has mentioned that as per Regulation 5 of Foreign Exchange management (Export and import of Currency) Regulations 2000 wherein Reserve Bank of India may by regulations, prohibit, restrict of regulate the export, import or holding of currency notes. The said Regulation 5 reads as under:
“Except as otherwise provide in these regulations no person shall without the general or special permission of the Reserve Bank of India import or send out of India, any Foreign Currency’.
A plain reading of the Regulation makes it clear the Foreign Currency as such is not prohibited good and its import or export is subject to the permission given by the Reserve Bank of India. Further as per Regulation 7 (2)(ii) of the said Regula
