Parmod Kumar Dhamija vs Air Customs Officer IGI

Shiv Narayan Dhingra, J.—By way of present petition u/s 482 Cr.P.C, the Petitioner has sought quashing of complaint case bearing No. 66/1/96 pending before learned ACMM, New Delhi under Sections 132 and 135 of the Customs Act, 1962 in which he was arrayed as an accused on the ground that the Petitioner had preferred an appeal before the Customs Appellate Authority in respect of adjudicating proceedings against penalty and in the appeal he was exonerated and the case qua him was found to be false. The concluding paragraph of the order of the Commissioner of Appeal dated 25th January, 2008 reads as under:

The Adjudicating Authority in the impugned order has said, "Investment share of Shri Varyam Singh in the gold seized on 09.07.96 was to the tune of about Rs. 32 lacs while the rest of the money (approximately 70%) had been put by Shri Parmod Kumar. These facts have been substantiated by the statement-dated 09.07.96 of Sh. Varyam Singh tendered u/s 108 of Customs Act, 1962. Identity and telephone number 531228 of Shri Parmod Kumar in Dubai has been confirmed by his brother Shri Kanwar Bhan". From the perusal of the said statement dated 09.07.96 of Shri Varyam Singh and relied upon by the Adjudicating Authority, as far as investment by Shri Varyam Singh is concerned he has stated "he (Varyam Singh) told Shri Parmod Kumar that he had Rs. 1,70,000/-and would also invest the whole amount". It is not clear how Shri Varyam Singh invested Rs. 32 lacs and there is nothing on record or any investigation has been referred in the adjudication order to substantiate it being made in this regard. Further, the Adjudicating Authority had mentioned that rest of the money was invested by Shri Parmod Kumar in Dubai and his telephone number was 531228. All along in the case the department has maintained that there were two persons of the same name i.e. Shri Parmod Kumar, one in Dubai and the second the Appellant in India. If the investment was made by Shri Parmod Kumar of Dubai, then it cannot be linked to the Appellant. The department has not made Shri Parmod Kumar of Dubai a party in the case and nothing is on record to suggest that efforts were to trace and identify of Shri Parmod Kumar of Dubai and how the telephone number in Dubai i.e. 531228 is linked to the Appellant.

Thus, there is only the one statement of Shri Varyam Singh alleging the involvement of the Appellant and is not corroborated by the statement of any other person or by any documentary evidence. On the other hand the claim of the Appellant that he had left India on 06.09.94 and since then he has not visited India again is corroborated by the statements of various persons tendered u/s 108 of the Customs Act 1962 and also by documentary evidence i.e. copies of his passports. No other person involved in the case has mentioned anything about the Appellant. Thus the statement of Shri Varyam Singh who himself is involved in the case cannot be relied upon and accepted as evidence whereas the claim of the Appellant is supported by way of corroborative statements u/s 108 of the Customs Act, 1962 and documentary evidence and is acceptable as credible evidence in his favour. Moreover, the Appellant has not laid any claim on the impugned gold under seizure in this case.

Keeping the above in view the finding of the Adjudicating Authority about the Appellant are not fair, legal and based on facts and hence the penalty imposed on the Appellant is hereby set aside.

It is contended by counsel for the Petitioner that there was no evidence available with the department except what was present before the Adjudicating Authority and the Appellate Authority and in view of the judgment of this Court in Vinod Kumar Jain v. Union of India and Ors. Crl.MC 272 of 2004 decided on 7th February 2008; Vikas Mohan Singhal v. Directorate of Revenue 2009 (3) LRC 455 and D.K. Modi v. K.C. Jhrahim 2007 (3) JCC 2069, the criminal complaint against the Petitioner should be quashed. On the other hand, counsel for Respondent argued that these judgments would not be applicable since the Petitioner had not appeared before the trial court and he has been declared a proclaimed offender/ absconder by the trial court. The Petitioner has concealed this fact from this Court that he was declared a proclaimed offender. Regarding observations of the Appellate Tribunal about two Parmod Kumars, it is submitted by counsel for Respondent that it was only one Parmod Kumar with two addresses. In any case, since the Petitioner had not joined investigation, therefore, the authorities were not able to say whether the Petitioner had two addresses or there were two persons in the name of Parmod Kumar. Reliance is placed by the Respondent''s counsel on Joginder Gulati v. IO DRI New Delhi Crl.MC 2658 of 2009 decided on 20th January 2010 wherein this Court had observed that merely because the Tribunal exonerated a person, the criminal prosecution cannot be quashed.

The facts of the present case are akin to case in Vinod Kumar Jain(supra). Since the prosecution was initiated against the Petitioner on the basis of available evidence, non-joining of the Petitioner in investigation cannot be a ground to distinguish the case of the Petitioner from that of Vinod Kumar Jain(supra). The entire evidence sought to be relied upon by the Respondent department against the Petitioner is the same that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, I consider that no useful purpose would be served by continuing with the prosecution against the Petitioner before the trial court.

In the result, the petition is allowed and complaint case bearing No. 66/1/96 titled R.S. Korey, Air Customs Officer v. Parmod Kumar and Ors. pending before learned ACMM, New Delhi under Sections 132 and 135 of the Customs Act, 1962 and the consequential proceedings arising therefrom are hereby quashed.