ORDER

This Criminal Revision is filed by the Assistant Commissioner of Customs, Prosecution Unit, Air Cargo Commissionerate, New Custom House, Chennai – 600 016, against the order of the Learned Judicial Magistrate, Special Court for Customs, Alandur, dated 20.04.2021 in Crl.M.P.No.55 of 2020, in and by which, the application filed by the petitioner, in which, the respondent is the first accused in un-numbered C.C.No...... of 2019, arising out of in R.R.No.8 of 2015 in F.No.DRI/ CZU/VII/48/Enq.-01/Int-11/2015, in O.S.No.08/2017-INT-AIR, was allowed and thereby, dropping the proceedings against the accused No.1/respondent, in this case.

2.For the sake of convenience, the petitioner is referred to as the Complainant and the respondent is referred to as Accused No. 1, as per their ranks arrayed before the Court below.

3.The gist of the allegations made in the complaint is that the third and fourth accused, in the guise of importing electronic goods viz., mobile phones etc., had actually smuggled gold bars, inside the cartons and the first accused, who is running a security agency, authorized by the Airports Authority of India, with full knowledge of the said illegality, through his employees viz., the second accused/K.Francis and the fifth accused/P.Karunanithi, had help in bringing the gold bars in the cover of mobile phones from the Cargo shed inside the Airport out of the customs frontier and thus all the accused have colluded, conspired and committed the offenses punishable under Section 132, 135 of Customs Act, 1962 and therefore, the private complaint was filed.

4.When the private complaint was adjourned to be listed under the caption as to be “check and call on”, even before recording of the sworn statement and the complaint was taken on file and at the diary number stage itself, the Accused No. 1 had filed an application for dropping proceedings and the same was allowed, against which the present revision is filed. This complaint was presented before the Special Court for Customs, on 31.12.2019 and it was adjourned as “check and call on” on 04.01.2020. Again, on 04.01.2020, an endorsement was made that back file from the Judicial Magistrate has not reached and it is adjourned for call on, on 13.01.2020. From then onwards, the case has been adjourned under the same caption from time to time. On 06.11.2020, the accused No.1 appeared before the Court and filed the present petition at this stage.

5.The contentions raised by the Accused No.1 in the above application is that the Hon'ble Supreme Court of India, in Radheshyam Kejriwal Vs. State of West Bengal and Anr.1, has held that once the Appellate Authority decided the case on merits, in respect of particular charge, the prosecution in respect of self- same charge cannot be thereafter maintainable as against the accused person. The Customs Department itself has incorporated the said ruling of the Hon'ble Supreme Court through its various circulars and the same has been followed.

6.In this case, there are two offenses in complaint. The first offense is under Section 132 of the Customs Act. The same punishes making false declaration for evading duty. When the matter in respect of instant transaction went before the Appellate Authority, by an order dated 11.09.2017, bearing No.F.No.DRI/ CZU/VII/48/Enq.-01/Int-11/2015, in O.S.No.08/2017-INT -AIR, the Learned Appellate Authority had held that as far as the allegations against the Accused No. 1 is concerned, he is not an importer and there was no any omission or commission on the part of the accused/respondent in making mis-declaration

1 (2011)3 SCC 581 and he cannot be penalized for such mis-declaration or evasion of duty and therefore, held in paragraph No.18.5 that the penalty imposed under Section 114 (AA) of the Customs Act is unsustainable.

7.Section 114(AA) imposes penalty and Section 132 punishes the person on prosecution in respect of the same act of false declaration. Therefore, once the penalty imposed under Section 114(AA) of