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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    123      of 2016 (Arising out of the SLP(Crl.) No. 7767 of 2011)

AIR CUSTOMS OFFICER IGI NEW DELHI …. Appellant

Versus

PRAMOD KUMAR DHAMIJA …. Respondent

J U D G M E N T  

Uday U. Lalit, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated 04.1.2011 passed  

by the High Court of Delhi at New Delhi in Crl. M.C. No.460 of 2009.  

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 of ten tolas each, weighing 21454.400 grams

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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 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 of  

Ranbeer Singh, he put both the packets in dry ice 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 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

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respondent could not be recorded as inspite of numerous summons, he did  

not cooperate 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, Ranbeer  

Singh and four others and accordingly Complaint No. 66/1/96 was filed in  

the Court of ACMM, New Delhi. The respondent was declared “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. 66/99 dated  

30.09.1999 was passed by the Additional Commissioner of  Customs, IGI  

Airport,  New  Delhi  imposing  penalty  of  Rs.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,  1962,  stated  that  he  was  shown the  record  of  details  of  call  charges  of  Mobile  phone number  9811028643  obtained  from Essar Cell Phone mobile phone services, that on  21.04.1996  and  27.04.1996  telephone  calls  were  made  to  telephone  number   6914037;  that  he  had  been  told  that  telephone number 6914037 belonged to Shri Varyam Singh and  was  his  residence  number  and  who  had  been  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

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as  to  how  telephone  calls  were  made  to  telephone  number  6914037  on  21.04.1996  three  times  and  one   time  on  27.04.1996 from his  mobile phone,  he stated that  he did not  know  the  exact  date  but  in  the  month  of  April,  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 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 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,  then it cannot be linked to the appellant. The department has not  made Shri  Pramod Kumar  of  Dubai  a  party in  the case  and  nothing is on record to suggest that efforts were made to trace  and  identify  Shri  Pramod  Kumar  of  Dubai  and  how  the  telephone  number  in  Dubai  i.e.  531228  is  linked  to  the  appellant.   

Thus  there  is  only  the  lone  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 06.09.1994 and since then he  has not visited India again is corroborated by the statements of

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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 the case has mentioned  anything  about  the  appellant.  Thus  the  statement  of  Shri  Varyam Singh who himself accepted as evidence whereas the  claim of  the  appellant  is  supported  by way  of  corroborative  statements  under  Section  108  of  the  Customs Act  1962  and  documentary evidence 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.”

(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 of 2009 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 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 respondent had 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 its  judgment  and order  

under  appeal,  allowed  the  petition  and  quashed  Complaint  No.66/1/96

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pending before the Additional Chief Metropolitan Magistrate, New Delhi. It  

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 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.”

4. The exoneration  of  the  respondent  in  the  adjudication  proceedings  

was the basis for petition under Section 482 Cr.P.C. and such exoneration  

certainly weighed with the High Court. In  Collector of Customs  v. L.R.   

Melwani1, question Nos.1 & 2 posed before the Constitution Bench of this  

Court were as  under:-

“(i) Whether  the  prosecution  from  which  these  criminal  revision  petitions  arose  is  barred  under  Article  20(2)  of  the  Constitution as against accused 1 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 of Customs that the 1st and 2nd 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 were as  

under:- 1

(1969) 2 SCR 438

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“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 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 amount to a verdict of acquittal in favour of accused 1 and  2.”

6. A subsequent three-Judge Bench in  K.G. Premshankar v. Inspector   

of Police 2 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 –(1) the  previous judgment which is final can be relied upon as provided  under Sections 40 to 43 of the Evidence Act; (2) in civil suits  between the same parties, principle of res judicata 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; (4) if the criminal  case and the civil proceedings  are 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 that the same would be conclusive except  as provided in Section 41.  Section 41 provides which judgment  would be conclusive proof of what is stated therein.  

31. Further,  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….

2  (2002) 8 SCC 87

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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 possibility of conflicting decision in  civil  and criminal  courts is  not  a  relevant  consideration.  The  law envisages

‘such an eventuality  when it expressly refrains from     making  the decision of one court binding on the other, or even relevant,  except for limited 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 a  

three-Judge Bench of this Court in  Radheshyam Kejriwal v. State of West   

Bengal and Another3.   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  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  

broadly be stated as follows:-

3  (2011) 3 SCC 581

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(i) Adjudication proceedings  and criminal  prosecution can  be launched simultaneously;

(ii) Decision  in  adjudication  proceedings  is  not  necessary  before initiating criminal prosecution;

(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  Section 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:  If  the  exoneration  in  adjudication  proceedings  is  on  technical  ground  and  not  on  merit,  prosecution may  continue; and

(viii) In  case  of  exoneration,  however,  on  merits  where  the  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  Radheyshyam Kejriwal v.  State of  West   

Bengal  and Another4 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  

4  (2011)3 SCC 581

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continue.    Ms.  Ranjana  Narayan,  learned  Advocate  appeared  for  the  

appellant  while Mr. Naveen Malhotra, learned Advocate appeared for the  

respondent.  We have considered rival submissions and  gone 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 of the respondent, which clearly suggests that the  

respondent had come down to Delhi in  April, 1996.  This statement is 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.

(b) The  respondent  was  declared  a  proclaimed  offender  and  had  not  

participated in any of the proceedings personally.   In the 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.

(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.

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(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 adjudication proceeding was on merits  

or that he was found completely innocent.

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  

with law.

………………………J. (V. Gopala Gowda)

…………………..……J. (Uday Umesh Lalit)

New Delhi, February 15, 2016