Page 178 - ELT_1st September 2020_Vol 373_Part 5

616 EXCISE LAW TIMES [ Vol. 373

confiscation and penalty under the Act would not prevent infliction of punish-
ment under Chapter XVI of the Customs Act, 1962 or under any other law. Con-
sequently, it is open to the Customs Authorities to adjudicate on confiscation and
penalty, and resort to adjudication would not in any way affect prosecution un-
der the Customs Act, 1962 or under any other law. The summons in question are
preliminary to the issue of adjudication and may also enable the Customs Au-
thorities to decide whether prosecution under any other provision of Chapter
XVI (like Section 135 of the Customs Act, 1962) may be necessary. Merely be-
cause the information is furnished with regard to obstruction will not affect the
right in Customs Authorities to commence adjudication or decide upon prosecu-
tion under Chapter XVI. The said prosecution, moreover would not be under the
general law but in terms of Section 137 of the Customs Act, 1962 which would
require a complaint with a previous sanction of the Principal Commissioner of
Customs or Commissioner of Customs. (i) Adjudication proceedings and crimi-
nal proceedings can be launched simultaneously; (ii) Decision in adjudication
proceedings is not necessary before initiating criminal prosecution; (iii) Adjudi-
cation proceedings and criminal proceedings are independent of each other and
(iv) Adjudication proceedings by the Customs is not prosecution by a competent
Court of law to attract the provisions of Article 20(2) of the Constitution of India
or Section 300 of the Criminal Procedure Code, 1973. A bare look at the infor-
mation filed by the Customs shows that it reveals offences other than Section 133
of the Customs Act, 1962 and also shows combination of other persons along
with the petitioner in the commission of the offence. It is clearly conspiratorial
act which like Sections 186, 503, 419 and 471 of the IPC, 1860 are not offences un-
der Customs Act and therefore cannot be subject matter of proceedings before
the Collector of Customs. It is irrational to presume that having itself initiated
criminal proceedings (under general law) and correctly referring only the said
offences under the general law to investigation by the Police, the Customs Au-
thorities themselves issued the summons to make an inquiry into the very same
offences themselves. The summons, obviously being issued “in connection with”
would refer to other matters ancillary and incidental to the obstruction and hence
relate to matters of penalty and also offence which under the Customs Act may
be attracted to the incident. Moreover, a mere reference to Section 133 of the Cus-
toms Act, 1962 in the information would not mean that the police would investi-
gate the same due to the reason that an offence under Section 133 of the Customs
Act, 1962 can only culminate into a complaint under Section 137 of the Customs
Act, 1962 in which the police has no role. In making the submission aforesaid, the
argument does not travel beyond the summons and is on the contrary relatable
directly to it and arises from the very terms in which the same has been issued.
Reliance on Article 20(2) of the Constitution of India by the petitioners
are also utterly misconceived as the Customs Authorities are not Judicial Tribu-
nals and adjudging of confiscation, increased rate of duty or penalty do not con-
stitute a judgment or order of a Court of a Judicial Tribunal necessary for the
purpose of supporting a plea of double jeopardy. To invoke Article 20(2), there
must be prosecution and punishment before a Court of law or a Tribunal which,
admittedly the Customs Authorities are not. In any event, admittedly there has
been no completed adjudication, as to require confiscation or penalty and the
stage is only on the issuance of the summons which is a preliminary step and
precursory to anything which may or may not follow, including adjudication
and prosecution under the Customs Act, 1962.

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