Antony Sijo vs State Of Kerala

V.G.Arun, J

The petitioner is the second accused in C.C. No.2421 of 2019 pending on the files of the Judicial First Class Magistrate Court-I, Kochi. The case

originated from Crime No.1635 of 2018 registered at the Harbour Police station, Ernakulam City for offences punishable under Sections 379, 468, 447,

471 r/w 34 of the IPC. The crime was registered on the basis of a complaint lodged by the Joint Commissioner of Customs, Cochin. The allegation is

that the petitioner and one Joakim Yesudasan, who were employees of a Shipping Line Company named MBK Logistics (P) Ltd, presented false

documents to sign-on the Merchant Vessel, M V Varda. The document was forged by affixing the official seal stolen from the Custom House and by

forging the signatures of the Customs officials. Based on Annexure A4 Final Report, the court took cognisance of the offences under Sections 468

and 471 read with 34 of IPC. Meanwhile, the Central Board of Indirect Taxes and Customs initiated proceedings against the petitioner and four

others, alleging violation of the provisions of the Customs Act and imposed a penalty of Rs.50,000/- under Section 117 of the Act. This order was

challenged by the petitioner before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and the appeal was allowed vide Annexure

A3 order. The Crl.M.C. is filed seeking to quash the criminal proceedings against the petitioner in view of the petitioner’s exoneration in the

departmental proceedings.

Heard Ms. Amrin Fatima, learned Counsel for the petitioner and Ms.Maya M.N, learned Public Prosecutor.

Learned Counsel for the petitioner contended that proceedings under the Customs Act, initiated on the basis of the same set of allegations as in the

criminal proceedings, having ended in the petitioner’s exoneration, continuation of the criminal proceedings amounts to an abuse of process. To

buttress the contention, reliance is placed on the decision of the Apex Court in Radheshyam Kejriwal v State of West Bengal [ (2011) 3 SCC 581].

Per contra, the learned Public Prosecutor submitted that, exoneration in departmental proceedings will not ipso facto lead to acquittal in the criminal

proceedings.

For appreciating the rival contentions, the scope of the penalty proceedings under Section 117 of the Customs Act, as also the reasoning in

Annexure A3 order have to be considered. Section 117 of the Customs Act reads as under;

“117. Penalties for contravention, etc., not expressly mentioned.â€"Any person who contravenes any provision of this Act or abets any such contravention or

who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or

failure, shall be liable to a penalty not exceeding one lakh rupees.â€​

The contravention alleged in the instant case is of Section 42, which stipulates that the person-in-charge of a conveyance, which had brought any

imported goods or had loaded any export goods at a Customs Station, shall not cause or permit such conveyance to depart without obtaining a written

order to that effect from the proper officer. The allegation is that the petitioner and others had contravened Section 42 by procuring a written order

permitting departure of a Merchant Vessel on the strength of forged documents.

The reason for allowing the petitioner’s appeal, as discernible from Annexure A3, is that the appellants had retracted from their statements

given under Section 108 of the Customs Act, which was mainly relied on by the original authority for imposing penalty. The Tribunal also found that

copies of the statements and the documents relied on by the department were not furnished to the appellants, thereby depriving them of the

opportunity to effectively defend the case. The Tribunal found no justification in imposing penalty on the appellants, who are only lower grade

employees of the company, after exempting the Senior Manager and the General Manager. The contradictions and discrepancies in the investigation

conducted by the Department were also taken into account. A careful scrutiny of the findings in Annexure A3 unequivocally reveal that the appeal

was allowed on technical grounds, rather than on merits.

In Radheshyam Kejriwal (supra), penalty proceedings under Section 50 of the Foreign Exchange Regulation Act, 1973 (FERA) was initiated

against the appellant therein alleging contravention of Sections 8(2), 9(1)(f)(i) and 64(2) of that Act. In the departmental adjudication, the allegations

were found to be unsustainable and hence the proceedings were dropped. Meanwhile, on the very same allegations, a complaint under Section 61(2)

of the FERA was filed before the jurisdictional Magistrate Court. The appellant challenged the criminal proceedings in the light of his exoneration in

the departmental proceedings. After careful scrutiny of the previous decisions on the point, the Apex Court laid down the law at paragraph 38 of the

judgment, as under;

“(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the

Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the

exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on

the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.â€​

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The petitioner’s exoneration vide Annexure A3 being on technical grounds, the observation in paragraph 38 (vi) above will apply. Yet another

pertinent aspect is that in Radheshyam and the decisions discussed therein, the departmental proceedings as well as the criminal prosecution were

initiated and conducted by the department itself, whereas in the petitioner’s case the investigation was conducted by the police and prosecution is

by the State. Having found the allegations to be true, the police had filed the Final Report and the jurisdictional court has taken cognisance of the

offences therein. In such circumstances, exoneration in the departmental proceedings cannot have any impact on the criminal proceedings.

The foregoing discussion leads to the only possible conclusion of the Crl. M.C being without merit. In the result, the Crl.M.C is dismissed.

Needless to say that the dismissal of this Crl.M.C will not prejudice the petitioner from raising all the contentions, including those raised herein, before

the trial court.