- (1.) A Criminal Miscellaneous Application No. 92202 of 2011 has been moved for recalling the Order dated 29-7-2003 passed by Hon'ble Mr. Justice N.K. Mehrotra dismissing Criminal Miscellaneous Case No. 380 of 1994 in the absence of the counsel. Another Criminal Miscellaneous Application No. 108015 of 2011 has been filed for condoning the delay in moving the aforesaid application. I have heard Sri Amarjeet Rakhra, learned counsel for applicant and Sri Dipak Seth, learned counsel for respondents.
(2.) The facts in short are that Ashok Kumar Avrol and Chandra Prakash Khosla filed a petition under Section 482 Cr.P.C. (Criminal Misc. Case No. 380 of 1994) challenging the complaint and further proceedings of Case No. 676 of 1993, Union of India v. Ram Kumar Misra and Others, under Section 135 of the Customs Act, 1962, pending before the Special Chief Judicial Magistrate, Allahabad. The said petition was filed by Sri Virendra Bhatia, Advocate and interim order was also passed in the petition on 1-3-1995 whereby further proceedings pending before the Special Chief Judicial Magistrate, Allahabad were stayed. It appears that case was listed before Hon'ble Mr. Justice N.K. Mehrotra on 29-7-2003, who was pleased to pass the following order :- Nobody present from the side of the petitioner. Heard the learned Addl. Govt. Advocate. I do not find it a fit case to exercise the inherent power under Section 482 Cr.P.C. It is not a case of the abuse, of the process of any court and no order making interference is required in the ends of justice. The petition is dismissed. Aforesaid order is sought to be recalled on the ground that due to inadvertence and oversight, previous counsel Sri Virendra Bhatia could not appear in the case nor any communication was received by the applicant-petitioner from Sri Virendra Bhatia. Sri Virendra Bhatia has died and it was only in May, 2011, the petitioner learnt about the death of Sri Virendra Bhatia and later on about the dismissal of the case. Learned counsel also referred to an order passed by Custom Commissioner (Appeals) wherein a finding has been given:- ...I find that in the follow up action nothing incriminating was found which could establish nexus between smuggled computer parts and the appellants No. (ii) & (iii). I find supports from the decision of Hon'ble CEGAT in the case of Netai Chandra Dutta v. Collr. of Customs, Calcutta, 1994 72 ELT 886, Jaswinder Singh v. Collr. of Customs, New Delhi,1996 83 ELT 175 wherein it has been held that "statement of co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activities. In another case of K. Moideen v. Commr. of Bental Excise & Customs, Cochin, 2000 117 ELT 56, it has been held that "Penalty not be levied solely on the basis of evidence given by co-accused in absence of any corroborating evidence against him.
(3.) Ultimately, while allowing the appeal, the Commissioner ordered that appellants are not liable to pay any penalty. This order of Commissioner's appeal has been confirmed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide order dated 8-5-2002.;