1. The present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioners to quash and set aside the impugned criminal proceedings/Criminal Complaint, being Criminal Case No. 127/2008 dated 28/01/2008 filed by respondent no. 2-original complainant against the petitioners in the Court of learned Judicial Magistrate First Class, Rajpipla for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995.
2. The facts leading to the present Special Criminal Application in a nutshell are as under;
2.1. Respondent no. 2-original complainant-Superintendent, State Excise and Prohibition, Rajpipla had instituted/filed the impugned Complaint, being Criminal Case No. 127/2008 against the petitioners in the Court of learned Judicial Magistrate First Class, Rajpipla for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 read with Sections 182 and 114 of the Indian Penal Code alleging interalia that despite the petitioners are liable to pay excise duty on the basis of the transaction value from 01/07/2000 and despite various notices for demand dated 12/04/2007 directing/calling upon the petitioners and the Company to pay the remaining amount of excise duty of Rs. 92,23,403/-, the petitioners have not paid the State Excise duty and thereby have committed the offence under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 read with Sections 182 and 114 of the Indian Penal Code.
2.2. In the said Complaint, the learned Magistrate directed to issue summons against the petitioners-original accused for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 and Sections 182 and 114 of the Indian Penal Code. Being aggrieved and dissatisfied with the impugned Complaint and the order passed by the learned Chief Judicial Magistrate, Rajpipla dated 10/01/2008 directing to issue summons against the petitioners for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995, the petitioners-original accused have preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.
2.3. An additional affidavit has been filed on behalf of the petitioners pointing out that subsequently the order passed by the Superintendent, State Excise and Prohibition confirmed by the Commissioner was challenged before the State Government/appellate authority under Rule 127 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 and the appellate authority by order dated 20/09/2010 has quashed and set aside the demand of unpaid dues for which the impugned Complaint has been filed. It is submitted that the said decision by the appellate authority is on merits specifically holding that the petitioners/Company is not liable to pay the unpaid duty demanded by the Superintendent confirmed by the Commissioner. It is further submitted that the order passed by the appellate authority dated 20/09/2010 has attained finality inasmuch as the same is not challenged by the department and, therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Radheshyam Kejriwal Vs. State of West Bengal reported in (2011) 3 SCC 581, it is requested to quash and set aside the impugned criminal proceedings by submitting that in view of the above, no fruitful purpose would be served in continuing the proceedings/prosecution against the petitioners. It is submitted that to continue the criminal proceedings against the petitioners would be an exercise in futility as when the department has failed to substantiate the demand of unpaid duty in the departmental proceedings, the department will not be in a position to prove the same by leading any further evidence in criminal proceedings where the degree of standard of proof is higher and, therefore, it is requested to quash and set aside the impugned criminal proceedings.
4. Shri L.B. Dabhi, learned APP appearing on behalf of the State as well as respondent no. 2 is not in a position to dispute that the decision of the appellate authority quashing and setting aside the demand of the unpaid duty for which the impugned Complaint has been filed is on merits and the said order has attained finality inasmuch as the department has accepted the said decision. However, has submitted that in that view of the matter let the petitioners-original accused appear before the concerned Magistrate and point out the decision requesting the learned Magistrate to dismiss the said Complaint.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the impugned criminal proceedings has been initiated against the petitioners for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 and Sections 182 and 114 of the Indian Penal Code solely on the ground that the petitioners have failed to pay the unpaid duty of Rs. 92,23,403/- despite the demand notice and thereby have committed the offence under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 and Sections 182 and 114 of the Indian Penal Code, however, it is required to be noted that the demand notice issued by the Superintendent, State Excise and Prohibition confirmed by the Commissioner has been set aside by the appellate authority on merits by order dated 20/09/2010 and it is held that the petitioners are not liable to pay the unpaid duty of Rs. 92,23,403/- as demanded for which the impugned Complaint has been filed.
6. Under the circumstances, when the petitioners have been exonerated in a statutory appeal by the appellate authority and the demand notice for which the impugned Complaint is filed has been quashed and set aside, to continue the criminal proceedings against the petitioners would be unnecessary harassment to them. When the department has failed to substantiate their claim of unpaid duty for which the impugned Complaint has been filed, the department will not be in a position to prove the case against the petitioners for the offences punishable under Sections 7(b), (c) and (d) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1995 and Sections 182 and 114 of the Indian Penal Code, which was for non-payment of unpaid duty, before the criminal Court in which as held by the Hon'ble Supreme Court in catena of decisions standard of proof will be higher. It is required to be noted that the appellate authority has not quashed and set aside the demand on technical ground and/or for want of evidence. If the decision of the appellate authority quashing and setting aside the demand was on the technical ground and/or for want of evidence, the position would have been different and in that case the department can prove the case against the petitioners-accused persons by leading further evidence. That is not the case here. The department has failed before the appellate authority on merits and the demand of unpaid duty has been quashed and set aside on merits. Under the circumstances, to continue the criminal proceedings against the petitioners with respect to non-payment of unpaid duty, which has been set aside by the appellate authority, would be an exercise in futility and/or it can be said that the same shall now be an abuse of process of Court. Under the circumstances, it appears to the Court that this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal proceedings rather than relegating the petitioners to approach the learned Magistrate to point out the order passed by the appellate authority quashing and setting aside the demand on unpaid duty. In view of the aforesaid controverted facts and circumstances, the petitioners should not be relegated to appear before the concerned learned Magistrate and request for dismissing the Complaint pointing out the aforesaid order passed by the appellate authority.
7. In view of the above and for the reasons stated hereinabove, the present petition succeeds and the impugned criminal proceedings/Complaint, being Criminal Case No. 127/2008pending in the Court of learned Chief Judicial Magistrate, Rajpipla is hereby quashed and set aside. Rule is made absolute accordingly.
(M.R. SHAH,J.) siji