AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 784
X X X X Extracts X X X X
X X X X Extracts X X X X
....d) and (m) of the Act. 3. Assailing the said order of the first respondent, the appellant had approached the Tribunal. In the said appeal, where the present impugned order was passed, the order of the first respondent has been confirmed and the appeal was dismissed. As against which, the present Civil Miscellaneous Appeal has been preferred before this Court. 4. The present appeal had been admitted by this Court on 29.6.2010 with the following question of law: "1. Whether the first respondent authority and the second respondent Tribunal is correct in holding that the charges of Section 112(a) & (b) of Customs Act, 1962 is made out in the facts and circumstances of the case against the appellant, warranting imposition of penalty of Rs. 10 lakhs ? 2. Is the 2nd respondent tribunal right in attaching importance to the alleged confessional statement of the appellant, especially when the same has been retracted at the earliest point of time and such confessional statement have not been corroborated by any independent evidence." 5. The appellant, who had been the second officer of the vessel, MV-Tiger Bridge, had been arrested by the Customs authorities on 13.6.2001 and on the nex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Based on the said statements and other circumstantial evidences, the first respondent/Adjudicating Officer has not only confiscated the contraband as well as the conveyances used for the smuggling but also imposed penalty on all these persons including the appellant. 10. Insofar as the alleged involvement of the appellant is concerned, the Adjudicating Officer had mainly relied upon the confessional statement given by the appellant dated 14.06.2001 and only based on such statement, which, according to the customs authorities, had been corroborating with other similar confessional statements given by other accused, the order of confiscation as well as penalty was passed. 11. Even though, the appellant had retracted the said confessional statement, said to have been given by him on 14.6.2001, at the earliest point of time, i.e. immediately, after being taken into judicial custody, the said retraction on the part of the appellant had not been taken into account by the Adjudicating Officer as he rejected the said retraction saying that it is an after thought on the part of the appellant. 12. Therefore, assailing the said order passed by the first respondent imposing penalty as well ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 22&24.6.2011, the trial Court convicted the appellant also by imposing a fine of Rs. 10,000/- for each of the three offences u/s 120-B IPC r/w 135 (1)(a)(i) and 135 (1)(b)(i) of Customs Act 1962, u/s 135 (1) (a) r/w 135 (1) (a) (i) of Customs Act 1962 and u/s 135 (1)(b) r/w 135 (1)(b)(i) of the Customs Act 1962, indefault to undergo six months SI for each of the three offences and also convicted and sentenced to undergo RI for 10 months for each of the three offences. 14.f. As against the said Judgment of the Trial Court, the appellant had filed appeal before the Principal Sessions Judge, Chennai in Crl.A.No.135 of 2011. In the said appeal, after appreciating the case of the prosecution as well as the defence, the learned Sessions Judge by order dated 23.6.2016 has acquitted the appellant from the charges by reversing the conviction and sentence passed by the Trial Court. The learned Sessions Judge has found that the prosecution had failed to prove the case beyond reasonable doubt and therefore, the benefit of doubt should be extended to the appellant and accordingly, he was acquitted from the charges. 14.g. In this regard, the learned counsel appearing for the appellant wou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0.3 We have found that the offence charged against the appellants in both the adjudication and prosecution proceedings is substantially the same. Both the cases are based on the same set of facts. The evidence considered by the adjudicating authority and the criminal court is, by and large, the same. After appreciation the evidence, the criminal court acquitted the accused after finding that the the charge against them had not been proved. In the circumstance, we are of the view that the judicial approach taken in Paul Anthony's and Gopaldas's cases can be applied to this case and accordingly the order passed by the adjudicating authority imposing penalties on the appellants cannot stand in the face of their acquittal by the criminal court. 10.4 We have also examined the case law cited by Id. SDR. Some of the decisions (by High Courts) cited by Id. SDR (vide K.P. Abdul Majeed, V.J.A. Flynn, etc) are to the effect that adjudication and criminal proceedings are independent of each other and that the degree of evidence required by the adjudication authority for imposing penalty is much less than that required by criminal court for convicting the accused. There is no quarrel ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ven by the appellant the order in original was passed by the first respondent. All the six persons, including the appellant who had been arrested on 13.6.2001, had given such confessional statements before the customs authorities on 14.6.2001 and 15.6.2001. Each one of them had given separate and independent statement under Section 108 of the Act and when the department peruse each of the statements given by them, it would corroborate with each other by thus, the conspiracy hatched and executed by them through their co-ordinated action and effort have been proved. 15.b. The learned counsel for the respondent would also submit that the corroborative statements given by each of the accused including the appellant had not been controverted by them, at the time of giving such statements and i.e., the reason why all the accused, except the appellant had admitted their guilt before the Criminal Court (Trial Court) and ultimately, had been convicted. 15.c. Even though the appellant had retracted the said confessional statement subsequently, the same cannot be considered to be a worthy statement on the part of the appellant because the confessional statements given by the appellant also,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne another and all of them admitted having committed this offence. 18. At paragraph 60 of the order in original, the first respondent by relying upon the confessional statement given by the appellant has stated that that appellant, an officer holding a senior position in the vessel was acting as a mediator by contacting Shri. Sadasivam every time on arrival and intimating of the arrival of gold, which were brought on board by all the three of them by concealing the gold in the cloth belt and wearing them on person . To give such a finding against the appellant, the first respondent has relied upon only the confessional statements given by the appellant and other accused persons. There is no other evidence directly attributing the link or involvement of the appellant in the said alleged conspiracy out of which only, the said action of smuggling had taken place. 19. The first respondent, at paragraph 62 of the order in original, had rejected the retraction statements given by these accused people by stating that their retraction at a later stage is only a mere after thought to escape from the clutches of law and as such they cannot be given any credence. At paragraph 67 of the orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant is privy to the conspiracy. 20. Though the above submission of the prosecution has been accepted by the trial court, this court finds that the evidence let in by the prosecution in this regard lacks proof. The appellant in his confession says that he used the cellphone No.9840077231. The call details relied by the prosecution indicates only 3 calls emanated from that number to 98401 20330 on 13.06.2001 at 08.41 am, 12.29 pm. It is pertinent to note that as per the prosecution case as found in the seizure mahazar marked as Ex P-19, on 13.06.2001 at about 20.45 hours the Custom officers lead by Shri.Srinivasan, Intelligence Officer (P.W.3) went to the Harbour and enquired about the appellant with Mr. Bharadwaj, Chief Officer of the Vessel M.V.Tiger Bridge. He informed the customs officers that the appellant was on off duty till mid night and he has gone to shore. Thereafter at the request of the custom officers he contacted the appellant cell number 9840077231 and informed the appellant that two persons have come to harbour to see him and asked the appellant to return to harbour. In response to his request, the appellant reached the harbour at about 21.30 hours. If the prosecut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt has also omitted to note that the prosecution version differs regarding the time of appellant's arrest. The reconciliation of that by P.W1 in this regard does not inspire confidence. When a charge of conspiracy is loaded against a person, the prosecution should establish the chain of events without any break. While relying upon circumstantial evidence, when there was no recovery of gold from the appellant, but solely harping on the so called telephonic conversion held between the appellant and the other accused is not sufficient to hold the appellant guilty. Further more, in the light of the fact that neither the ownership nor the existence of the simcard is proved by the prosecution in the manner known." 22. After appreciating the evidences and the failure on the part of the prosecution in proving their case beyond reasonable doubt i.e., proving the link of the appellant with the team to have hatched the conspiracy and executed the smuggling activity, the Trial Appellate Court has given an acquittal to the appellant by stating that the prosecution has failed to prove the case beyond reasonable doubt. 23. Once the criminal prosecution has failed to prove the case against a....