Ayoob Ismail Muthiravilla Veedu v. State of Kerala and S. Sivadasan, Deputy Commissioner of Customs, Air Customs, International Airport, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.MC.No. 4305 of 2008() ------------------------CC.34/2005 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER:A2 --------------- AYOOB ISMAIL MUTHIRAVILLA VEEDU, BUILDING NO.259 WARD NO. 1, NATAYARA, S.N.COLLEGE ROAD, CHERUMARUTHI VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.R.ANIL RESPONDENT(S): --------------- ## 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.SIVADASAN DEPUTY COMMISSIONER OF CUSTOMS, AIR CUSTOMS, INTERNATIONAL AIRPORT THIRUVANANTHAPURAM. ADV. SRI.P.GOPINATH FOR R2 R1 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - ## Crl.M.C.No. 4305 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of December, 2008 ## **O R D E R** Does the exoneration in departmental adjudication proceedings under the Customs Act ipso facto warrant or justify quashing of criminal prosecution against an indictee invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C ? This is the question which I am called upon to consider in this Crl.M.C. 2. Petitioner faces indictment in C.C.No.34 of 2005 pending before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. That prosecution is under Section 135 of the Customs Act. There are 2 other accused in that case. The crux of the allegations is that the 1[st] accused was intercepted when he was in the process of an attempt to export foreign currency at the Airport. He was found to be in possession of foreign currency which he had not declared or could account for. When he was questioned and his statement was recorded, it 2 Crl.M.C.No. 4305 of 2008 appears that, he revealed that he had purchased the same from the petitioner herein. The petitioner's premises were searched and allegedly incriminating documents were also seized from the possession of the petitioner. The requisite sanction was obtained and it was thereafter that the prosecution was initiated. 3. Parallelly and simultaneously departmental adjudication proceedings were also initiated against the petitioner. In such proceedings, the petitioner was exonerated as per Annexure-II order of adjudication. Penalty was imposed on the 1[st] accused. So far as the petitioner is concerned, no penalty was imposed on him. I have searched the entire Annexure-II and the only consideration of the role of the petitioner appears in para.45 of that order which I extract below: “Para.45: Regarding the role of Sri.Ayoob Ismail as no corroborative evidence is forthcoming I am not inclined to impose any penalty on him.” 4. Proceedings under the COFEPOSA Act was also initiated against the petitioner. An order of detention was passed on 19.11.2004. Long later, by Annexure-III order dated 17.07.07, that order of preventive detention under the COFEPOSA Act was revoked. 3 Crl.M.C.No. 4305 of 2008 In Annexure-III order, there is no reference whatsoever about the complicity of the petitioner for the precise offence under the Customs Act for which he now faces prosecution. Annexure-III only shows that there was a representation from the petitioner. The Central Government considered the same and decided to revoke the order of preventive detention. 5. The petitioner has now come to this Court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the criminal prosecution against him. He builds his case for invocation of the extraordinary inherent jurisdiction on Annexures-II and III. In as much as parallel proceedings have ended without imposition of any penalty on him and in as much as the order of preventive detention under the COFEPOSA has been revoked, the petitioner is entitled to get the proceedings against him quashed, it is submitted. 6. A look at the law will be relevant. The powers under Section 482 Cr.P.C have been described to be awesome. Section 482 Cr.P.C does not really confer any power on the High Court. On the contrary, it reserves certain powers which the High Court always had to Crl.M.C.No. 4305 of 2008 4 act in aid of justice. It would be incorrect to reckon Section 482 Cr.P.C as a provision conferring any powers on the High Court. But the language of Section 482 Cr.P.C, which I extract below, clearly shows that Section 482 Cr.P.C only reserves the powers which the High Court always had to act in aid of justice. “ Section 482 Cr.P.C: **Saving of inherent power of High Court** —Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 7. The question to be considered is whether exoneration in departmental proceedings under the Customs Act ipso fact entitles an indictee to claim quashing of proceedings. Reliance is placed first on the decision in **Uttam Chand v. I.T.O** [(1982) 2 SCC 543]. I extract the entire decision below: “1. Heard counsel, special leave granted. In view of the finding recorded by the Income Tax Appellate Tribunal that it was clear on the appraisal of the entire Crl.M.C.No. 4305 of 2008 5 material on the record that Shrimati Janak Rani was a partner of the assessee firm and that the firm was a genuine firm, we do not see how the assessee can be prosecuted for filing false returns. We accordingly, allow this appeal and quash the prosecution. 2. There will be no order as to costs.” A reading of the said decision must clearly show that there is no declaration of law as contemplated under Article 141 of the Constitution of India. It only shows that the Supreme Court chose to follow a course under Article 142 of the Constitution of India to do complete justice between the parties. I am unable to reckon the decision in **Uttam Chand v. I.T.O** as laying down a proposition that as soon as departmental adjudication proceedings result in exoneration, powers under Section 482 Cr.P.C can or ought to be invoked to quash such proceedings. 8. Sri.Gopinath, the learned counsel appearing for the 2[nd] respondent draws the attention of this Court to the decision of the Constitution Bench in **Asst.Customs Collector, Bombay v. L.R.Melwani** [A.I.R 1970 S.C 962]. The learned counsel submits that in this decision, the Supreme Court had gone into the question in Crl.M.C.No. 4305 of 2008 6 detail as to whether a finding rendered in a departmental adjudication proceedings can deliver any advantage to an accused facing trial in a criminal prosecution. I have gone through the decision in detail. It has been held unambiguously that the bar under Article 20(2) of the Constitution against double jeopardy or the bar of autrefois acquit under Section 300 Cr.P.C or the bar based on the accepted principle of law of issue of estoppel would not bar a criminal prosecution notwithstanding the exoneration of the accused in earlier departmental adjudication proceedings. Even in that case, it would be relevant to note that the Supreme Court proceeded to consider the next question as to whether the prosecution amounts to abuse of process of the Court, in the facts of that case. 9. In a given case, even if the principles of double jeopardy , autrefois acquit and issue estoppel would not bar the prosecution, the powers under Section 482 Cr.P.C can certainly be invoked when the court is satisfied that the continuance of the prosecution would amount to abuse of process of the Court. 7 Crl.M.C.No. 4305 of 2008 10. The crucial question hence is whether the finding rendered in Annexures-II and III or any other circumstances available in this case are sufficient to persuade this Court to come to the conclusion that the continuance of the prosecution would amount to abuse of process of court and would hence warrant the quashing of proceedings. 11. Depending on the facts and circumstances of each case this Court certainly can consider whether the prosecution amounts to abuse of process of court and does deserve to be brought to premature termination by invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. 12. My attention has been drawn to the decisions in **P. Jayappan v. S.K. Perumal** (1984 Supp) SCC 437), **K.C. Builders v. Asst. Commissioner of income Tax** (2004 (1) KLT 596 (SC) **Telu Ram Raunoi Ram & anr. Income Tax Officer** (1984 Vol.145 ITR 111), **Jyothi Prakash Mitter v. Haramohan Chowdhury** (1978 Vo.112 ITR 384) and **Harbhajan Kaur v. Union of India** (1994 (73) ELT 269 (Del.). I have gone through these decisions. I am unable to spell out a principle from these decisions that exoneration in 8 Crl.M.C.No. 4305 of 2008 a departmental adjudication proceedings can ipso facto lead to the automatic premature termination of a criminal prosecution initiated. 13. Certainly the nature of the findings rendered in such departmental proceedings can and may influence the court to decide whether continuance of the prosecution would amount to abuse of process of court and the same requires to be prematurely terminated by invocation of the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. It is in this context that the precise nature of the allegations raised assume significance. 14. Reliance is placed by the prosecution on the alleged statement given by the co-accused, i.e. the first accused, before the Customs Authorities. This statement is certainly admissible in evidence. To what use the statement can be put to is a different question. Certainly it is admissible in evidence under the Customs Act as also under Section 30 of the Indian Evidence Act. It is not as though the prosecution relies only on such statement. They rely on incriminating materials recovered in the course of search in the premises of the petitioner. Whether these two circumstances put Crl.M.C.No. 4305 of 2008 9 together justify an adverse finding against the petitioner or not, it is not necessary for me to hazard an opinion at this stage. Suffice it to say that I am not persuaded to conclude on the materials placed before court that there is justification in the prayer for quashing the proceedings. 15. The learned counsel for the petitioner relies on the decision in **Popular Muthiah v. State, rep. By Inspector of Police** (2006) 3 SCC (Cri) 245) and contends from proposition (iii) in paragraph 33 that it must be held that there is no legal evidence possible to be adduced in this case to attract culpability against the petitioner and hence the prosecution must be quashed. 16. I am, in these circumstances, satisfied that there is no merit in the contention that exoneration in a departmental proceedings whatever be the reason, is sufficient ipso facto to invoke the extra ordinary inherent jurisdiction to terminate the prosecution launched against the accused. The nature of findings rendered in such proceedings may in an appropriate case persuade the court to invoke the jurisdiction under Section 482 Cr.P.C. But that is far from saying Crl.M.C.No. 4305 of 2008 10 that every such exoneration must necessarily and automatically lead to quashing of the criminal prosecution also. 17. In the instant case I have carefully gone through Annexs. II and III. I am unable to come to a conclusion that there are any such crucial findings or conclusions in them, that can persuade this Court to hold that continuation of the prosecution would be an abuse of process of court or that powers under Section 482 Cr.P.C. deserve to be invoked to prevent abuse of process of court or miscarriage of justice. 18. This Crl.M.C. is accordingly dismissed. The learned counsel for the petitioner submits that the petitioner is now working abroad and he needs two months time to appear before the learned Magistrate. The petitioner can through counsel appear before the learned Magistrate and make his submissions. The learned Magistrate must consider the same and pass appropriate orders. **(R. BASANT)** Judge tm Crl.M.C.No. 4305 of 2008 11