- (1.) THIS petition is preferred under Article 227 of the Constitution of India and under section 482 of Criminal Procedure Code, challenging the process issued in Criminal Case No.90 of 1989, lodged against the petitioners.
(2.) A complaint was lodged by the respondent-Customs Officer in the Court of Judicial Magistrate, First Class, Daman, disclosing the offence punishable under section 135 of the Customs Act. It reveals that show-cause notice dated 7.4.88 was issued to the petitioner and the order on the said notice was passed on 16.11.89 It also reveals from the record that an appeal was preferred before the Addl. Collector of Customs. Simultaneously, Criminal proceedings were also launched against the petitioners. Therefore, the petitioners submitted that the petitioners-accused have been now exonerated by the order of the Under Secretary to the Government of India dated 29th October, 1992 passed in Appeal No.12013/1/91-ADJ-AC wherein it is observed as follows :- "The committee is of the view that when there is no direct evidence to indicate that the appellant has removed the goods from the Customs Bonded Warehouse. The penalty imposed on the appellant by the Addl. CCI and E is unjustified. The committee therefore, decided to quash the Addl. CCI and E's Order appealed against." The copy of the aforesaid order is placed on record by the learned counsel Mr.Mani for the petitioners. In support of his submission, he has also relied on a ruling in Jewels of India and 2 ors. v/s. State and another, reported in 1987 E.L.T. 511 (Del.) wherein it is observed thus - "Prosecution for undervaluation _ Adjudication order imposing penalty for under valuation set aside by CBE and C on appeal Criminal prosecution on same facts not permissible Complaint quashed - Sections 132 and 135 of the Customs Act, 1962 - Section 482 of Cr.P.C." Ms.Teja Katdare, learned counsel appearing for Respondent No.2 submitted that the order passed by the Appellate Committee of Government of India is not binding to the criminal Court. In view of the settled law, her contention is unsustainable and therefore, the same is rejected.
(3.) IN view of the aforesaid facts and circumstances, the petition is allowed. The process issued by the learned J.M.F.C., Daman in Criminal Case No.90 of 1989 is quashed and set aside. Rule is made absolute. Stay shall stand vacated.;