IN APPEAL NO v. Zoher T.Dalal & Ors.

1 Heard the learned advocate for the applicant-Union of India and the learned advocate for the respondent no.2. Respondent no.1 is present in person. 2 The applicant has challenged the judgment and order of acquittal dated 15.2.2008 passed by the learned Addl. Chief Metropolitan Magistrate Mumbai in C.C. No. 300/CW/1997 whereby, he 2 cri-apln-3056-09 acquitted the respondents-accused under sections 135(1)(a) r.w. Section 135(1)(ii) of the Customs Act 1962 and under Section 120-B of the Indian Penal Code, 1860. In addition, respondent no.2 was acquitted of the offence under Section 136(1) of the Customs Act, 1962. 3 The case of the prosecution is that on 12.10.1995 the Officers of the Customs department intercepted respondent no.1 at the airport at Mumbai after he had cleared immigration for the purpose of boarding flight to Dubai and foreign currency of US$ 40000 was found in his possession. It is further the prosecution case that on 18.9.1995 when respondent no.1 came to India, respondent no.2 who was an Officer working with the Customs department, helped respondent no.1 in fraudulently preparing the currency declaration form dated 18.9.1995 which showed that respondent no.1 had brought 40000 US$ to India without respondent no.1 actually bringing the said currency into India.

Thus, the prosecution case is that respondent no.1 was smuggling foreign currency i.e. US$ 40000, out of India. 4 The learned Magistrate after considering the evidence led by the prosecution in detail acquitted the respondents by judgment and order dated 15.2.2008. Being aggrieved thereby, the applicant preferred appeal i.e. Appeal No. 308 of 2008 before the Sessions Court, Mumbai which came to be dismissed along with the application made therein by 3 cri-apln-3056-09 judgment and order dated 5.2.2009 and holding that the appeal is not maintainable. Hence, this application for leave to file appeal. 5 Admittedly based on the very same incident, adjudication proceedings came to be initiated against the respondents. In the adjudication proceedings the respondents came to be penalized by the Commissioner of Customs who was adjudicating authority in the adjudication proceedings. Being aggrieved thereby, the respondents have challenged the said order by filing appeals Nos.

178 of 1997 and 249 of 1997. The said appeals were decided in favour of the respondents and they came to be exonerated in the said proceedings. Being aggrieved thereby, the applicant preferred writ petition i.e. W.P. No. 668 of 2000 before this Court. The said writ petition came to be dismissed by the Division Bench of this Court with costs. 6 The Appellate Tribunal has clearly come to the conclusion that there was no material against the respondents. This Court also in W.P. No. 668 of 2000 observed that the material on record shows that when respondent no.1 came to India, he brought along with him the foreign currency i.e. US$ 40000 as declared in the currency declaration form. 7 The learned counsel for the applicant submitted that the adjudication proceedings and the criminal proceedings are two entirely 4 cri-apln-3056-09 different proceedings and that the finding in adjudication proceedings would not be binding on the Court in a prosecution under Section 135 of the Customs Act. To support her contention, she has placed reliance on the decision of the Supreme Court in the case of Standard Chartered Bank & Ors. Vs. Directorate of Enforcement and others [2006] RD SC