Antony Sijo v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 8[TH] DAY OF JUNE 2021 / 18TH JYAISHTA, 1943** ## **CRL.MC NO. 853 OF 2021** **CC 2421/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOCHI,** ## **ERNAKULAM** ## **PETITIONER/S:** ANTONY SIJO AGED 25 YEARS S/O. JOHNSON, VELIPARAMBIL HOUSE, KADEBAGHAM ROAD, PALLURUTHY, COCHIN-682003. BY ADVS. AMRIN FATHIMA SRI.J.RAMKUMAR SMT.STEFIN THOMAS ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HARBOUR POLICE STATION, KOCHI-682031. 2 B.G.KRISHNA, AGED 37 YEARS S/O.BALAGOPAL, JOINT COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGTON ISLAND, KOCHI-682009. ## **OTHER PRESENT:** PP MAYA M.N. ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **17.03.2021, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING:** **Crl.M.C.No.853 of 2021** 2 ## **ORDER** **Dated this the 8[th] day of June, 2021** **The petitioner is the second accused in C.C. No.2421 of 2019 pending on the files of the Judicial First Class Magistrate Court-I, Kochi. The case originated from Crime No.1635 of 2018 registered at the Harbour Police station, Ernakulam City for offences punishable under Sections 379, 468, 447, 471 r/w 34 of the IPC. The crime was registered on the basis of a complaint lodged by the Joint Commissioner of Customs, Cochin. The allegation is that the petitioner and one Joakim Yesudasan, who were employees of a Shipping Line Company named MBK Logistics (P) Ltd, presented false documents to sign-on the Merchant Vessel, M V Varda. The document was forged by affixing the official seal stolen from the Custom** **Crl.M.C.No.853 of 2021** 3 **House and by forging the signatures of the Customs officials. Based on Annexure A4 Final Report, the court took cognisance of the offences under Sections 468 and 471 read with 34 of IPC. Meanwhile, the Central Board of Indirect Taxes and** **Customs initiated proceedings against the petitioner and four others, alleging violation of the provisions of the Customs Act and imposed a penalty of Rs.50,000/- under Section 117 of the Act. This order was challenged by the petitioner before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and the appeal was allowed vide Annexure A3 order. The Crl.M.C. is filed seeking to quash the criminal proceedings against the petitioner in view of the petitioner’s exoneration in the departmental proceedings.** **2. Heard Ms. Amrin Fatima, learned Counsel for the petitioner and Ms.Maya M.N, learned Public** **Crl.M.C.No.853 of 2021** 4 **Prosecutor.** **3. Learned Counsel for the petitioner contended that proceedings under the Customs Act, initiated on the basis of the same set of allegations as in the criminal proceedings, having** **ended in the petitioner’s exoneration, continuation of the criminal proceedings amounts to an abuse of process. To buttress the contention, reliance is placed on the decision of the Apex Court in** _**Radheshyam Kejriwal v State of West Bengal**_ **[ (2011) 3 SCC 581].** **4. Per contra, the learned Public Prosecutor submitted that, exoneration in departmental proceedings will not** _**ipso facto**_ **lead to acquittal in the criminal proceedings.** **5. For appreciating the rival contentions, the scope of the penalty proceedings under Section 117 of the Customs Act, as also the reasoning in** **Crl.M.C.No.853 of 2021** 5 ## **Annexure A3 order have to be considered. Section 117 of the Customs Act reads as under;** _**“117. Penalties for contravention, etc., not expressly mentioned.—Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding one lakh rupees.”**_ **6. The contravention alleged in the instant case is of Section 42, which stipulates that the person-in-charge of a conveyance, which had brought any imported goods or had loaded any export goods at a Customs Station, shall not cause or permit such conveyance to depart without obtaining a written order to that effect from the proper officer. The allegation is that the petitioner and others had contravened Section 42 by procuring a written order permitting departure of a Merchant Vessel on the strength of forged** **Crl.M.C.No.853 of 2021** 6 ## **documents.** **7. The reason for allowing the petitioner’s appeal, as discernible from Annexure A3, is that the appellants had retracted from their statements given under Section 108 of the Customs Act, which was mainly relied on by the original authority for imposing penalty. The Tribunal also found that copies of the statements and the documents relied on by the department were not furnished to the appellants, thereby depriving them of the opportunity to effectively defend the case. The Tribunal found no justification in imposing penalty on the appellants, who are only lower grade employees of the company, after exempting the Senior Manager and the General Manager. The contradictions and discrepancies in the investigation conducted by the Department were also taken into account. A careful scrutiny of the** **Crl.M.C.No.853 of 2021** 7 **findings in Annexure A3 unequivocally reveal that the appeal was allowed on technical grounds, rather than on merits.** **8. In** _**Radheshyam Kejriwal (supra)**_ **, penalty proceedings under Section 50 of the Foreign Exchange Regulation Act, 1973 (FERA) was initiated against the appellant therein alleging contravention of Sections 8(2), 9(1)(f)(i) and 64(2) of that Act. In the departmental adjudication, the allegations were found to be unsustainable and hence the proceedings were dropped. Meanwhile, on the very same allegations, a complaint under Section 61(2) of the FERA was filed before the jurisdictional Magistrate Court. The appellant challenged the criminal proceedings in the light of his exoneration in the departmental proceedings. After careful scrutiny of the previous decisions on the point, the Apex** **Crl.M.C.No.853 of 2021** 8 ## **Court laid down the law at paragraph 38 of the** ## **judgment, as under;** _**“(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**_ **(vii)** _**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.”**_ **Crl.M.C.No.853 of 2021** 9 **9. The petitioner’s exoneration vide Annexure A3 being on technical grounds, the observation in paragraph 38 (vi) above will apply. Yet another pertinent aspect is that in** _**Radheshyam**_ **and the decisions discussed therein, the departmental proceedings as well as the criminal prosecution were initiated and conducted by the department itself, whereas in the petitioner’s case the investigation was conducted by the police and prosecution is by the State. Having found the allegations to be true, the police had filed the Final Report and the jurisdictional court has taken cognisance of the offences therein. In such circumstances, exoneration in the departmental proceedings cannot have any impact on the criminal proceedings.** **The foregoing discussion leads to the only** **Crl.M.C.No.853 of 2021** 10 **possible conclusion of the Crl. M.C being without merit. In the result, the Crl.M.C is dismissed. Needless to say that the dismissal of this Crl.M.C will not prejudice the petitioner from raising all the contentions, including those raised herein, before the trial court.** **V.G.ARUN JUDGE** **Scl/** **Crl.M.C.No.853 of 2021** 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |ANNEXURE A1|CERTIFIED COPY OF THE FIR DATED| |---|---| ||8.12.2018 IN C.C.NO.2421/2019 PENDING| ||BEFORE THE HON'BLE JUDICIAL FIRST CLASS| ||MAGISTRATE COURT-I, KOCHI.| |ANNEXURE A2|A TRUE COPY OF THE SHOW CAUSE NOTICE| ||DATED 10.12.2018 ISSUED TO THE| ||PETITIONER FROM THE OFFICE OF| ||COMMISSIONER OF CUSTOMS.| |ANNEXURE A3|A TRUE COPY OF THE FINAL ORDER| ||NO.20475-20476/2019 DATED 20.6.2019 OF| ||THE CUSTOMS, EXCISE AND SERVICE TAX| ||APPELLATE TRIBUNAL, BANGALORE.| |ANNEXURE A4|CERTIFIED COPY OF THE FINAL| ||REPORT/CHARGE SHEET DATED 15.11.2019,| ||ALONG WITH WITNESS STATEMENTS, IN| ||C.C.NO.2421/2019 PENDING BEFORE THE| ||JUDICIAL FIRST CLASS MAGISTRATE COURT-| ||I, KOCHI.| |ANNEXURE A5|A TRUE COPY OF THE DECISION IN| ||RADHESHYAM KEJRIWAL V. STATE OF WEST| ||BENGAL AND ANR. [(2011) 3 SCC 581].| |ANNEXURE A6|A TRUE COPY OF THE DECISION IN| ||S.K.SINHA V. S.K.SINGAL AND ORS. [1987| ||(1) CRIMES 842].|