TaxTMI 
TaxTMI 
2026 (9) TMI 1054
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....ecial Judge dismissed the discharge plea raised by the revision petitioners/accused Nos.1, 8, 9, 11 and 15. 2. Heard the learned Counsel for the respective revision petitioners and the learned Special Public Prosecutor appearing for the respondent. Perused the records and also the common order impugned. 3. The prosecution allegation against the 1st accused is that, while he was working in Air Cargo Complex (ACC), he had held the additional charge of Air Intelligence Unit of Customs (AIU) and Administration and he was having effective control over the passenger clearance section in Cochin International Airport from May 2013 to September 2013. While so, the petitioner along with other accused persons hatched criminal conspiracy to smuggle gold into India. It is further alleged that in pursuance to the said criminal conspiracy, the 1^st accused had made arrangements for the smooth passage of the smugglers without customs checking, through the officers he had posted in the Airport. It is also alleged that the 1st accused obtained illegal gratification from the 4th accused and in furtherance of the same and as an outcome of the aforesaid conspiracy, abetted smuggling of 56 Kgs. of....
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....g with TV to a person waiting in Calicut and also gave his identity and mobile number to whom it had to be handed over. Accordingly, the same was handed over to A14 in Calicut. 5. The learned counsel for the 1st accused argued that no materials available to see prima facie the allegations levelled against the 1st accused. According to him, in the departmental proceedings, the 1st accused was exonerated. Therefore, prima facie the allegations raised in final report are found against and therefore, the 1st accused is liable to be discharged in this case, after setting aside the common order. The learned counsel for the 8th accused argued at length mainly contenting that in the instant case though the allegation against the 8th accused is demand and acceptance of Rs. 5,00,000/- and also obtainment of 42 inch LED TV, treadmill, camera, Rado watch, camera, sunglass etc., nothing available prima facie to find demand of illegal gratification to justify commission of offences under Section 7 as well as 13 of the P.C. Act, 1988. He also reiterated that in the departmental proceedings 8th accused also was exonerated. Therefore, this criminal prosecution based on the same sets of facts, wh....
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....on of A1 with A4; witness No. 14, Suresh Babu, Contingent Staff, Customs Department, who spoke about the close relation of A1 with A4 and also about receiving of illegal gratification by A1 and his son from A4; witness Nos.3 and 4, Officers of customs department confirms frequent meetings between A1 and A4; witness No.36, Abdul Latheef, Employer of A4, who stated that A1 had contacted him seeking assistance to save A4 from the custody of the Customs authorities; witness No.28, KT Thomas, Brother-in-law of A1, who spoke about the secret mobile phone of A1 and about receiving of illegal gratification from A4 to A1 which is now kept in his residence by A1's son. The prosecution also relies on D47, Disclosure Statement of A1, and D48, Seizure Mahazar prepared at the residence of W28. Similarly, the allegation against the 8th accused is that he abused his official position to facilitate gold smuggling without customs checking, knowingly failing to check dubious activities of A4, ad acting as a mute spectator to facilitate the illegal activities in the Airport in pursuance of the conspiracy. He had obtained Rs. 5 Lakh, 42" LED TV, Treadmill, Rado Watch, Camera, Sunglass etc., as illegal ....
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....s as narrated in Charge 1 as above, thereby A-8 Dr Anil Kumar committing Criminal Misconduct punishable U/s. 13(2) sec. 13(1)(d) of the Prevention of Corruption Act, 1988. CHARGE - IX That, during the period May 2013 to September 2013, A-8 Dr Anil Kumar while working as a Public Servant in the capacity as Asst. Commissioner of Customs, Cochin International Airport Ltd (CIAL), Nedumbassery, demanded and accepted illegal gratification other than legal remuneration in the form of Rs. 5 lakhs, a 42" LED TV, Treadmill, Rado Watch, Camera, Sunglass, etc marriage of A-8 free of cost, as a motive or reward for showing favours to the accused persons in contravention to the existing Customs Rules & Regulations and in connivance with other accused persons facilitated the smuggling of 56 kilogram gold worth about Rs 17.86 Crores by them as narrated in Charge -1 above. Thus, A-8 Dr Anil Kumar committed offence punishable U/s. 7 of the Prevention of Corruption Act, 1988. CHARGE X That, during the period May 2013 to September 2013, A-8 Dr Anil Kumar while working as a Public Servant in the capacity as Asst. Commissioner of Customs, Cochin International Airport ....
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....ccepted illegal gratification other than legal remuneration in the form a 42" LED TV and dinner set on 20.06.2013 as a motive or reward for showing favours to the accused persons in contravention to the existing Customs Rules & Regulations and in connivance with other accused persons facilitated the smuggling of 56 kilogram gold worth about Rs 17.86 Crores by them as narrated in Charge 1 as above. Thus, Shri C. Madhavan (A-1) committed offence punishable U/s.7 of the Prevention of Corruption Act, 1988. CHARGE IV That, during the period May 2013 to September 2013, A-1, Shri C Madhavan while working as a public servant in his capacity as Deputy Commissioner of Customs in charge of Air Cargo section of Cochin International Airport Ltd (CIAL), having the additional charge of Air Intelligence of the Passenger section cheated Govt. of India by abusing his official position as Public Servant in conspiracy with private accused pet sons acting as smugglers of gold. A-1 by accepting illegal gratification from A-4 in the form of a 42" LED TV and dinner set on 20.06.2013, in contravention to the existing Customs Rules & Regulations and facilitated the smooth passage of the sm....
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....departmental proceedings as well as in the criminal proceedings are identical, the criminal case on the same facts is liable to be quashed. Another three Bench decision of the Supreme Court in Ashoo Surendranth Tewari v. Deputy Superintendent of Police, EOW, CBI and Another reported in [2020 KHC 6539] also relied on the said point. In fact in both these decisions, the Apex Court considered the earlier two Bench decision of the Apex Court in P.S. Rajya v. State of Bihar reported in [1997 KHC 202 : (1996) 9 SCC 1] and discussed the same in paragraph No. 7 of the judgment in Ashoo Surendranth Tewari's case (supra) and held as under:- "7. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:- "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under S. 5(....
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....Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) "... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined." xxx xxx xxx 29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all ....
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.... be an abuse of the process of the court." From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated." 7. According to the learned counsel for the revision petitioner, in both cases, the revision petitioner had been exonerated in the departmental proceedings and therefore, the prosecution case against him in the present cases would not lie. 8. Whereas, the learned Special Public Prosecutor appearing for CBI also relied on the above decisions as well as the decision reported in State of N.C.T. of Delhi v. Ajay Kumar Tyagi [2012(9) SCC 865], contending that departmental proceedings and criminal proceedings are independent and criminal trial must proceed on its own evidence. Apart from that, the learned Special Public Prosecutor has placed a latest decision of the Apex Court reported in Karnataka Lokayuktha Bagalkote District v. Chandrashekar [2026 KHC Online 6021], wherein also the Apex court had occasion to consider the decision in State of N.C.T. of Delhi v. Ajay Kumar Tyagi's case (supra) and also P.S. Rajya's c....
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....ejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence. 25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy." 13. We are of the opinion that in the present case the distinction as brought out in Ajay Kumar Tyagi (2012) 9 SCC 685 squarely applies and the ratio decidendi therein is not regulated by the ratio of the earlier judgment in Radheshyam Kejriwal (2011) 3 SCC 581. In Radheshyam Kejriwal (2011) 3 SCC 581, the adjudication proceedings and the prosecution were both by the very same entity, the Enforcement Directorate under the ....
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....ts discovered in the enquiry so as to afford the delinquent employee an opportunity to proffer his defense to the same." 9. Apart from the above decisions, the learned Special Public Prosecutor appearing for CBI also placed another decision reported in State of Uttar Pradesh v. A.K. Gaba etc., [2026 INSC 568], rendered by another two Bench of the Apex Court. 10. The learned Special Public Prosecutor appearing for the CBI stoutly opposed interference with the orders impugned, contending that in these cases, the allegations in the criminal case are on a different footing for which evidence and trial are necessary and mere exoneration of the revision petitioner in the departmental proceedings, by itself, would not be sufficient to discharge him from the criminal cases. 11. The learned Special Judge addressed the said contention and while dismissing the discharge petition in C.C. No. 8/2014, which is the subject matter in Crl. Rev. P No. 737/2026, observed in paragraph No. 18 of the order dated 30.05.2026 as under:- "18. I have considered the submissions made by other side. It is relevant to mention that the prosecution has obtained sanction under section 19(1)(c) of ....
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....alleged is also prima facie established. Hence, from the available materials on record, I am of the considered view that the prosecution has succeeded in establishing the prosecution case against all the accused, so as to frame a formal charge against them. I am also satisfied that the available materials before the court are sufficient to presume that all the accused have committed the offences alleged against them and absolutely there are no materials to hold that the charge against them is groundless. Therefore, I am of the view that separate charge is to be framed against all the accused. Resultantly, discharge applications filed by the accused Nos.1, 3, 5 and 6 as Crl. M.P Nos. 990/2015, 623/2015, 330/2017 and 528/2023 are liable to be dismissed. Points are answered accordingly. 12. Similarly, in Crl.Rev.P.No. 741/2026, in paragraph No. 16 of the order dated 30.05.2026, the learned Special Judge narrated his reasoning in disallowing the discharge petition and the same reads as under:- "16. I have considered the submissions made by other side. It is relevant to mention that the prosecution has obtained sanction under section 19(1)(c) of PC Act to prosecute the accus....
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.... (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 S.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. (vii) Exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. (viii) The standard of proof in a department proceeding is lower than that of criminal prosecution. (ix) The departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. (x) Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of ....