2010 (8) TMI 323 - HC - Customs

Prosecution examination of witness prosecution for gold smugglings - It is seen from the judgment of the trial Court and judgment of the I-appellate Court the trial Court has made a cursory reference to the voluntary statement given by the accused under Section 108 of the Act The I-appellate Court has not at all considered the voluntary statement given by the accused under Section 108 of the Act. - Court not considered the circumstances under which the complainant had been disabled from examining before the trial Court - matter remanded to appellate Court

Issues Involved:
1. Validity of the conviction under Section 135 of the Customs Act, 1962, and Section 85(2) of the Gold Control Act, 1968.
2. Examination of witnesses CW9 and CW10.
3. Preliminary objections regarding the maintainability of the appeal.
4. Validity of the sanction for prosecution.
5. Evidentiary value of the voluntary statement under Section 108 of the Customs Act.
6. Appropriate course of action for the appellate court.

Detailed Analysis:

1. Validity of the Conviction:
The respondent was initially convicted by the trial court for possessing smuggled gold under Section 135 of the Customs Act and Section 85(2) of the Gold Control Act. The appellate court, however, acquitted the respondent, citing failure to prove that the seized articles were gold of foreign origin and questioning the validity of the sanction for prosecution.

2. Examination of Witnesses CW9 and CW10:
During the appeal, the appellant sought to examine CW9 and CW10, who had tested and certified the gold. The respondent objected, arguing that no valid reasons were given for their non-examination earlier and that it would be futile after 21 years. The appellate court's refusal to examine these witnesses was deemed a significant oversight, necessitating a re-evaluation to allow their testimonies.

3. Preliminary Objections Regarding the Maintainability of the Appeal:
The respondent challenged the appeal's maintainability, arguing it should have been filed by the public prosecutor under the Central Government's direction. The appellant countered with a Supreme Court judgment stating that the complainant can appeal against acquittal under Section 378(4) Cr.P.C. The court found the appeal maintainable, dismissing the respondent's objections.

4. Validity of the Sanction for Prosecution:
The appellate court ruled that the sanction for prosecution was invalid. However, it was noted that this objection was not raised during the trial. According to Section 465 Cr.P.C., an error in sanction does not warrant overturning a conviction unless it results in a failure of justice. The appellate court failed to establish such a failure, rendering its ruling on the sanction's validity questionable.

5. Evidentiary Value of the Voluntary Statement Under Section 108 of the Customs Act:
The trial court briefly mentioned the accused's voluntary statement under Section 108 of the Customs Act, but the appellate court did not consider it at all. The legal significance of such statements was not adequately addressed, indicating a need for further judicial scrutiny.

6. Appropriate Course of Action for the Appellate Court:
Given the legal and procedural errors identified, the judgment of acquittal was set aside, and the case was remanded to the appellate court with specific instructions:
- Permit the complainant to examine CW9 and CW10 to prove their certificates.
- Re-examine the accused under Section 313 Cr.P.C. based on the new evidence.
- Expedite the examination of CW9 and CW10.
- Decide the appeal on merits within six months, considering the observations made in this judgment.
- Extend bail to the respondent during the appeal's pendency.

Conclusion:
The appeal was accepted, and the judgment of acquittal was set aside. The case was remanded to the appellate court for re-evaluation, with instructions to examine additional witnesses and reconsider the evidence and legal issues comprehensively.

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