TaxTMI 
TaxTMI 
2001 (8) TMI 143
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....been facing the agony of the case since March, 1990, which has resulted in the proceeding being oppressive and harassive in nature; such long pendency of the proceeding before the learned Magistrate has eroded the Fundamental Right of the petitioner to a speedy trial as guaranteed under Article 21 of the Constitution of India and the proceeding in the fitness of thing should be quashed and the charge including the entire proceeding should be quashed. 2.Shri Susanta Banerjee, learned Senior Counsel (duly assisted by Abdul Hamid, Ashok Kumar Pandey and Sayandev Sengupta) appearing for the petitioner has strenuously submitted before this Court that the charge framed against the petitioner should be quashed including the entire proceeding simply of the ground that in a parallel forum the version of the prosecution has been disbelieved and was nugated and it was only apposite that the criminal prosecution should also be quashed. The main plinth of Shri Banerjee's argument reposed on this proposition. 3.Shri Banerjee took much pains to demonstrate his point with regard to the fact that since in the adjudication proceeding which was an offspring of the same set of action which has g....
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....is of the submission made by Shri Banerjee firstly, with regard to the question of double jeopardy as exoneration in the departmental proceeding cannot entail ipso facto exoneration before the Criminal Court as both relate to different sets of action as contemplated under the law. 10.Shri Chowdhury submitted that Tribunal gave the benefit of doubt in favour of the petitioner and the proceedings before the Tribunal entail civil consequence and can have neither any bearing nor any nexus with the criminal case. 11.Shri Chowdhury submitted by referring sections 110 to 124 of the Customs Act, 1962 and submitted that these are relating to various stage with regard to adjudication, confiscation and issuance of imagination could the same i.e., the Criminal prosecution as well as the Adjudication proceeding be linked up together having nexus with each other. 12.Elaborating his points Shri Chowdhury referred to the decision of Shri Vijoy Kumar Jain and Another v. Sri Subodh Chandra Dutta and Another reported in 1993 C Cr. LR (Cal) 199. By relying on the said decision of a learned single Judge of this Court showed that the adjudication proceeding and criminal proceedings cannot be sa....
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....nd keeping in mind the caution sounded by the Hon'ble Apex Court in the case of V.K. Agarwal v. Vasant Raj Bhagwanji Bhatia & Ors. reported in 1988 Cri. LJ page - 1106. Solely on this ground order for quashing for delay cannot be considered by any Court of law. 17.The other question as to whether the prosecution has degenerated into a weapon of harassment of the petitioner cannot be decided at this stage as already he has been arrayed to answer the Charge as stated above. Now to the main point. 18.In order to better appreciate it is necessary to refer to the substratum of the charge of the two Acts in connection with which the petitioner have been arraigned to answer thereof. 19.Firstly, section 135(l)(b)(i) of the Customs Act, 1962 reads as follows : "135. Evasions of duty or prohibitions. — (1) without any prejudice to any action that may be taken under this Act, if any person — (a) ***** (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with, any go....
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....the Court such imprisonment shall not be for a term of less than six months';" 22.Read in just a position with the said provision of section 85 in Chapter XV of the Gold Control Act, 1968 housing the various provisions with regard to the offence and trial is Chapter XIV which also houses the provisions of adjudication and appeal. Both Chapter XIV and Chapter XV of the Gold (Control) Act, 1968 are independent Chapters one housing various provisions with regard to adjudication and Appeals and another with regard to the offences and their trials and there is no interlinking passage between the two houses spread out within the campus of the Gold (Control) Act they stand separate, erect of each other and each of the said Chapters accommodates various provisions which are extremely bad neighbours of each other. The Gold (Control) Act provides for confiscation of the articles, as well as for imposition of penalty including launching of the prosecution against the accused under section 85 of the Gold (Control) Act. Imposition of penalty and confiscation of goods are jealous mistress of the concept of prosecution and cannot be said to have any intimate report with each other. 23.The d....
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.... or prohibitions. — (1) without prejudice to any action …………………………" which enjoins that a prosecution under the Customs Act is a separate and may be in addition and never any subjugation to the other adjudicatory procedures set out under the Customs Act. 28.Similarly, under the Gold (Control) Act as indicated here-in-above the provisions of adjudication and the penal provisions stand apart from each other and the provisions with regard to adjudication and penalty and as well as the provisions with regard to offences and prosecution are not complementary to each other but are of mutually exclusive of each other. 29.As such, the Court cannot act as unwanted match maker and try to marry off the two provisions to distinct and spurning couples by accepting the proposition of Shri Banerjee that if a particular couple of the said set live up to the allegation automatically the other couple should also concede. 30.This is not the legislative intent in the Customs Act as well as in the Gold (Control) Act and in the event, if the Court tries to iron out the creases borrowing fuel from Shri Banerjee's argument it will in the process tear the basic fabric inste....