AIR CUSTOMS OFFICER IGI NEW DELHIversusPRAMOD KUMAR DHAMIJA

                         [2016] 2 S.C.R. 561



            AIR CUSTOMS OFFICER IGI NEW DELHI                              A
                                   v.
                  PRAMOD KUMAR DHAMIJA
                  (Criminal Appeal No. 123of2016)
                        FEBRUARY 15, 2016                                  B
      [V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ.]
      Customs Act, 1962: Smuggling - 184 gold biscuits of JO to/as
each concealed in the meal trolleys by two passengers of the aircraft
of Liifthansa Airlines - In their statements, they admitted the recovery
of gold biscuits and disclosed that respondent had invested the
                                                                           c
money in the gold recovered as well as the gold smuggled on earlier
occasions - Criminal case filed against the respondent -
Adjudicating proceedings also initiatecf against him under the
Customs Act - By order dated 30.9.1999, penalty imposed on
respondent by Additional Commissioner of Customs - The order set           D
aside by Commissioner on the ground that there were two persons
having same name, one in Dubai and second being the respondent
and that beyond the statement of co-accused there was no material
on record - Petition for quashing of complaint filed in High Court
- In the petition itself, two addresses of respondent were given -
                                                                           E
High Court alloll'ed the petition and quashed the complaint - On
appeal, held: Appellate order dated 30.9.1999. disclosed that the
passenger alleged the involvement of the respondent - In law, if
such statement is otherwise admissible and reliable, conviction
can lai•fu//y rest on such material - The finding in the appellate
order that there were two Pramod Kumars was completely incorrect           F
- In the backdrop of these facts, it cannot be accepted that the
exoneration of the respondent in the adjudication proceeding was
on merits or that he was found completely innocent - Considering
the facts and circumstances of the case, High Court was not right
and justified in accepting the prayer for quashing of the
                                                                           G
proceedings.
     Allowing the appeal, the Court
     HELD: 1. The order in original dated 30.09.1999 referred
to the statement of.the brother of the respondent clearly suggests
                                                                           H
                                  561
562            SUPREME COURT REPORTS                      [2016] 2 S.C.R.



A     that the respondent (Pramod Kumar) had come down to Delhi in
      April, 1996. This st'1tement was not even referred to in the
      appellate order dated 30.09.1999 but a finding is rendered that
      the respondent had not visited India after September, 1994. The
      respondent was declared a proclaimed offender and had not
      participated in any of the proceedings personally. In the
13
      circumstances, no weightage could be given to copies of the
      passport submitted in support of the assertion that he had not
      visited India after September 1994. The appellate order further
      disclosed that the statement of the passenger did allege the
      involvement of the respondent. In law, if such statement is
c     otherwise admissible and reliable, conviction can lawfully rest
      on such material. The finding in the appellate order that there
      were two Pramod Kumars was completely incorrect. In the
      backdrop of these facts, it cannot be accepted that the
      exoneration of the respondent in the adjudication proceeding was
      on merits or that he was found completely innocent. Considering
D
      the facts and circumstances of the case, the High Court was not
      justified in accepting the 11rayer for quashing of the 11roceedings.
      lf'aras 8, 9) [568-G-H; 569-A-E)
            Collector of Customs v. L.R. Me/wani (1969) 2 SCR
            438; K. G Premshankar \'. Inspector of Police (2002)
 E
            8 SCC 87: 2002 (2) Suppl. SCR 350; Radheshyam
            Kejriwal v. State of West Bengal and Another (2011) 3
            SCC 581: 2011 (4) SCR 889 - referred to.
                            Case Law Reference

 F      ( 1969) 2 SCR 438               referred to          Para 4
        2002 (2) Suppl. SCR 350         referred to          Para 6
        2011 (4) SCR 889                referred to          Paras 7, 8
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 123 of2016.
G          From the Judgment and Order dated 04.0I.2011 in Criminal No.
      460 of2009 passed by the High Court of Delhi at New Delhi.
           Ms. Ranjana Narayan, Ms. Sushma Manchanda, B. Krishna
      Prasad for the appellant.

H          Naveen Malhotra. Rishi Malhotra for the respondent.
           AIR CUSTOMS OFFICER IGI NEW DELHI v.                                563
                 PRAMOD KUMAR Dl-IAMIJA

     The Judgment of the Court was delivered by                                 A
     UDAY U. LALIT, J. I. Leave granted.
     2. This appeal challenges the judgment and order dated 04.1.2011
passed by the High Cou1t of Delhi at New Delhi in Crl. M.C. No.460 of
2009.
                                                                                B
     3. That the facts leading to the filing of this appeal are as under:-
      ( A) On the basis of specific information. AIR Customs Officers
(Preventive) at IGI Airport. New Delhi, on 09.07.1996 recovered and
seized from meal trolleys of the aircraft of Lufthansa Airlines flight from
Frankfurt to Delhi, 184 gold biscuits often to las each. weighing2 I454.400     c
grams valued at Rs.1,09,84,652/- concealed in the meal trolleys by two
passengers, named Varyam Singh and Ranbir Singh. In their statements,
Varyam Singh and Ranbeer Singh admitted the recovery and seizure of
gold and named other persons involved in the incident. Varyam Singh,
inter alia, disclosed the name of one Pramod Kumar i.e. the respondent
herein who invested the money with him in the seized gold as well as the        D
gold smuggled on earlier occasions.
      (B) Varyam Singh further stated that on 6.07.1996, Ranbeer Singh
and he went to Dubai where the respondent delivered two packets of
gold; that they went to Frankfurt; that in the flight from Frankfurt to
Delhi with the help ofRanbeer Singh, he put both the packets in dry ice         E
trays and as per pre-arrangement these packets were to be removed
and delivered to him near Moti Bagh Gurudwara by the catering staff
and that he had agreed to pay Rs. 50,000/- for this job to that person;
that he had to hand over this gold to the respondent and in return he was
to get Rs. 2,00,000/- out of the profit; that his share of investment in the
                                                                                F
gold seized on 9.7.1996 was Rs.Thirty Two lacs and that the balance
was invested by the respondent. He admitted that earlier he had gone to
Frankfurt via Dubai and come back to Delhi on six occasions and brought
gold in the same manner. The authorities recorded the statements of all
the persons involved. However, the statement of the respondent could
not be recorded as inspite of numerous summons, he did not cooperate            G
with the investigating authorities and remained in hiding.
     (C) The Commissioner of Customs, Delhi accorded sanction on
04.09.1996 for the prosecution of the respondent, Varyam Singh, Ran beer
Singh and four others and accordingly Complaint No. 66/1196 was filed
in the Court of ACMM, New Delhi. The respondent was declared                    H
564            SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A     "proclaimed offender" by the Ld. ACMM, New Delhi in the subject
      case.
            (D) In the meantime adjudicating proceedings were initiated pursuant
      to the show cause notice to the respondent. Order in Original No. 66199
      dated 30.09.1999 was passed by the Additional Commissioner of Customs,
B     !GI Airport, New Delhi imposing penalty ofRs.15 lacs on the respondent.
      Following observations in the said order are noteworthy:-
            " In response to summons Shri Kanwar Bhan appeared before
            the Customs authorities and he in his further voluntary statement
            dated 30.8.1996 recorded under Section 108 of the Customs Act,
c           1962, stated that he was shown the record of details of call charges
            of Mobile phone number9811028643 obtained from EssarCell
            Phone mobile phone services, that on 21.04.1996 and 27.04. I 996
            telephone calls were made to telephone number 691403 7; that he
            had been told that telephone number 6914037 belonged to Shri
            Varyam Singh and was his residence number and who had been
IJ          arrested for smuggling of 184 gold biscuits. On being asked about
            that he stated that neither did he know any person by name of
            Shri Varyam Singh nor his telephone number on being asked about
            as to how telephone calls were made to telephone number 691403 7
            on 21.04.1996 three times and one time on 27 .04.1996 from his
 E          mobile phone, he stated that he did not know the exact date but in
            the month ofApril, 1996, his younger brother Shri Pramod Kumar
            came to Delhi from Dubai as his mother was seriously ill, it might
            be possible that Shri Pramod Kumar had made four calls from
            his (Kanwar Bhan) mobile phone to telephone number 6914037
            belonging to Shri Varyam Singh as he did not know Shri Varyam
 F          Singh and his telephone number."
           (E) The aforesaid order dated 30.09.1999 was carried in appeal
      and the Commissioner of Customs (Appeal) vide his order dated
      25.01 .2008 set aside the penalty imposed on the respondent. The Appellate
      Authority was of the view that there were two persons having same
 G    name i.e. Pramod Kumar, one in Dubai and the second being the
      respondent and that beyond the statement of the co-accused there was
      no material on record. During the course of this order it was observed
      as under:-
            "If the investment was made by Shri Pramod Kumar of Dubai,
H           then it cannot be linked to the appellant. The department has not
        AIR CUSTOMS OFFICER !GI NEW DELHI v.                                  565
      PRAMOD KUMAR DHAMIJA [UDAY U. LAUT, J.]

      made Shri Pramod Kumar of Dubai a party in the case and nothing          A
      is on record to suggest that effo1is were made to trace and identify
      Shri Pramod Kumar of Dubai and how the telephone number in
      Dubai i.e. 53 I 228 is linked to the appellant.
      Thus there is only the lone statement ofShri Varyam Singh alleging
      the involvement of the appellant and is not corroborated by the          B
      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 06.09.1994 and since then he has not visited India again is
      corroborated by the statements of various persons tendered under
      Section 108 of the Customs Act 1962 and also by documentary
      evidence i.e. copies of his passports. No other person involved in
                                                                               c
      the case has mentioned anything about the appellant. Thus the
      statement ofShri Varyam Singh who himself accepted as evidence
      whereas the claim of the appellant is supported by way of
      corroborative statements under Section I 08 of the Customs Act
      1962 and documentary evidence is acceptable as credible evidence         D
      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."               E
      (F) Based on the observations and findings rendered in the aforesaid
order dated 25.01.2008, a petition under Section 482 of the Criminal
Procedure Code being Crl. M.C. No. 460 of2009 was filed on behalf of
the respondent in the High Court of Delhi at New Delhi. It is relevant to
note that in the petition itself two addresses of the respondent were          F
given,-one of Dubai and the other of Delhi. The affidavit in support of
the petition was filed by none other than Shri Kanwar Bhan, the brother
of the respondent. It was submitted on behalf of the Department that
the respondenthad not joined investigation and as such the instant petition
did not deserve any consideration and that there were not two Pramod
Kumars but only one person having two addresses. The High Court by             G
its judgment and order under appeal, allowed the petition and quashed
Complaint No.66/1/96 pending before the Additional Chief Metropolitan
Masistrate, New Delhi. lt was observed by the High Court as under:-
      "The entire evidence sought to be relied upon by the respondent
      department against the petitioner is the same, that was before the       H
566               SUPREME COURT REPORTS                        (2016] 2 S.C.R.



A           Appellate Authority and since the Appellate Authority had
            considered the entire evidence and con1e to above conclusion. I
            consider that no useful purpose would be served by continuing
            with the prosecution against the petitioner before the trial court."
            4. The exoneration of the respondent in the adjudication proceeding,s
 B    was the basis for petition under Section 482 Cr.P.C. and such exonerntion
      certainly weighed with the High Court. In Collector lll Customs v.
      LR. Mebvaui', question ~us. I & 2 posed before the Constitution Bench
      of this Court were as under:-
            "(i) Whether the prosecution from which these criminal revision
c           petitions arose is barred under A1ticle 20(2) of the Constitution as
            against accused I and 2 in that case by reason of the decision of
            the Collector of Customs in the proceedings under the Sea Customs
            Act?
            (ii) Whether under any circumstance the finding of the Collector
 D          of Customs that the I" and 2"' accused are not proved to be
            guilty operated as in issue estoppel in the criminal case against
            those accused?''
           5. The observations of the court in respect of aforesaid questions
      \Vere as under:-
 E          ·'8 ...... The rule laid down in that decision was adopted by this
             Court in Pritam Singh v. State of Punjab, and again in N.R. Ghose
             v. State of W.B. But before an accused can call into aid the
             above rule, he must establish that in a previous lawful trial before
             a competent court, he has secured a verdict of acquittal which
             verdict is binding on his prosecutor. In the instant case for the
 F
             reasons already mentioned. we are unable to hold that the
             proceeding before the Collector of Customs is a criminal trial.
             From this it follows that the decision of the Collector does not
             an1ount to a verdict of acquittal in t:1vour of accused I and 2:·

           6. A subsequent three-Judge Bench in K.G. Premslumkar v.
 G
      /11spector of Police ' considered the effect of the decision of a civil
      court on criminal proceedings and it was concluded as under:-
             '"30 .... What emerges from the aforesaid discussion is -(I) the
      '(1969) 2 SCR 438
 H    '12002) 8   sec 87
        AIR CUSTOMS OrFICER IGI NEW DELHI v.                                       567
      PRAMOD KUMAR DHAMIJA [UDAY U. LAUT. J.]

      previous judgment which is final can be relied upon as provided               J\
      under Sections 40 to 43 of the Evidence Act: (2) in civil suits
      between the same parties, principle ofresjudicata may apply: (3)
      in a criminal case, Section 300 Cr.P.C. makes provision that once
      a person is convicted or acquitted. he may not be tried again for
      the same offence if the conditions mentioned therein are satisfied:
                                                                                    B
      (4) if the criminal case and the c ivi I proceedings arc for the same
      cause, judgment of the civil court would be relevant if conditions
      of any of Sections 40 to 43 are satisfied, but it cannot be said th~t
      the same would be conclusive except as provided in Section 41.
      Section 41 provides which judgment would be conclusive proofof
      what is stated therein.                                                       c
      31. Fu11her, the judgment, order or decree passed in a previous
      civil proceeding, if relevant, as provided under Sections 40 and 42
      or other provisions of the Evidence Act then in each case, the
      court has to decide to what extent it is binding or conclusive with
      regard to the matter(s) decided therein ....                                  D
      32. In the present case, the decision rendered by the Constitution
      Bench in M.S. Sheriff case would be binding, wherein it has been
      specifically held that no hard-and-fast rule can be laid down and
      that possibi Iity of conflicting decision in civi I and criminal cou11s is
      not a relevant consideration. The law envisages                               E
      'such an eventuality when it expressly refrains fro1n            n1aking
      the decision of one court binding on the other, or even relevant.
      except for Iim ited purpose such as sentence or damages"'.
      7. The exoneration in related adjudication proceedings and the effect
thereof on criminal proceedings again came up for consideration before               F
a three-Judge Bench of this Court in R11d/1esltyam Kejriw11/ v. State of
West Bengal muf Ant>lfter'. In his dissenting opinion P. Sathasivam, J.
(as the learned Chief Justice then was) concluded that there was nothing
in Foreign Exchange Regulation Act, 1973 to indicate that a finding in
adjudication is binding on a court in prosecution under Section 56 of Act           G
or that the prosecution under Section 56 depended upon the result of the
adjudication under the Act. C.K. Prasad J., speaking for the majority
summed up as under:-
      "38. The ratio which can be culled out from these decisions can
) (201IJ3 sec ss1                                                                   H
568            SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A           broadly be stated as follows:-
            (i) Adjudication proceedings and criminal prosecution can be
            launched simultaneously;
            (ii) Decision in adjudication proceedings is not necessary before
            initiating criminal prosecution;
B
            (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
c           criminal prosecution;
            (v) Adjudication proceedings by the Enforcement Directorate is
            not prosecution by a competent court oflaw to attract the provisions
            of Article 20(2) of the Constitution or Section 300 of the Code of
            Criminal Procedure;
D           (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
            (viii) In case of exoneratiufi. however, on merits where the
 E          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."
            8. The majority judgment in Radlteys!tyam Kejrbval ''· Sf{lfe of
 F    .West Bei'l1:al and A11otlter1 is relied upon by the respondent in support
      of the submission that the exoneration in the present case being on
      merits, criminal prosecution on the same set of facts ought not to be
      allowed to continue. Ms. Ranjana Narayan, learned Advocate appeared
      forthe appellant while Mr. Naveen Malhotra, learned Advocate appeared
      for the respondent. We have considered rival submissions and gone
 G    through the record which brings out following crucial facets:-
            (a) The order in original dated 30.09.1999 referred to the statement
      of Kanwar Bhan, the brother ,,fthe respondent, which clearly suggests
      that the respondent had come down to Delhi in April, 1996. This statement

 H    '(2011)3SCC581
         AIR CUSTOMS OFFICER 1GI NEW DELHI v.                                   569
       PRAMOD KUMAR DHAMIJA [UDAY U. LAUT, J.]

is not even referred to in the appellate order dated 30.09.1999 but a            A
finding is rendered that the respondent had not visitea India after
September, 1994.
      (b) The respondent was declared a proclaimed offender and had
not participated in any of the proceedings personally. In the circumstances
noweightage could be given to copies of the passport submitted in support        B
of the assertion that he had not visited India after September 1994.
     (c) The appellate order further discloses that the statement of
Varyam Singh did allege the involvement of the respondent. In law, if
such statement is otherwise admissible and reliable, conviction can
lawfully rest on such material.                                       ' C
   (d}The' finding in the appellate order that there were two Pramod
Kumars, is completely incorrect and unstateable.
     In the back drop of these facts it cannot be accepted that the
exoneration of the respondent in the aOjliaication proceeding v,:as on
merits or that he was found completely innocent.                                 D
      9. Considering the facts and circumstances of the case, we are of
the view that the High Court was not right and justified in accepting the
prayer for quashing of the proceedings. We, therefore, allow this appeal
and set-aside the view taken by the High Court. Case No. 66/1/96, on
the file of the ACMM, New Delhi, shall be proceeded with, in accordance          E
with law.
Deyika Gujral                                               Appeal allo\\·ed.