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2010 (9) TMI 420 - HC - CustomsProsecution - Smuggling of silver bricks - case of the prosecution that accused Nos. 3 and 4 apprehended when the lorry was intercepted, not proved beyond reasonable doubt no mahazar was prepared on 12-1-1993. There is no specific reference to voluntary statements given by each of the accused. The Sanctioning Authority without stating whether accused 1 to 4 were engaged in acquiring, possessing, keeping, concealing, carrying, purchasing and dealing with said contraband having reasons to believe that said goods of foreign origin were liable for confiscation has accorded sanction to prosecute the accused, the sanction order does not even refer to place where lorry was intercepted and contraband was seized. It is obvious that sanction was accorded without application of mind by the Sanctioning Authority. Therefore, sanction order is not valid in the eye of law.
Issues Involved:
1. Maintainability of the appeal under Section 377(2) Cr.P.C. 2. Proof of smuggling and possession of silver bricks by accused Nos. 3 and 4. 3. Validity of the sanction to prosecute accused Nos. 3 and 4. 4. Proper appreciation of evidence by the trial Judge. 5. Necessity for interference with the impugned judgment. Detailed Analysis: Issue 1: Maintainability of the Appeal The learned Counsel for accused 3 and 4 contended that the appeal filed by the Assistant Collector of Customs, Mangalore, represented by senior Central Government Standing Counsel, is not maintainable under Section 377(2) Cr.P.C. The court referred to the Supreme Court judgment in AIR 1997 SC 1904, which held that the complainant has no locus standi to move under Section 377(2) Cr.P.C. However, the court clarified that this appeal is filed under Section 378(1) Cr.P.C. against the judgment of acquittal, making the objection regarding maintainability baseless. Issue 2: Proof of Smuggling and Possession The prosecution alleged that on 12-1-1993, accused 3 and 4 were involved in smuggling 75 silver bricks weighing 2561.130 kilograms in a lorry. The trial Judge acquitted the accused based on several findings: 1. The prosecution failed to prove that the seized contraband was of silver metal and of foreign origin. 2. The prosecution did not establish that accused 3 and 4 had conscious possession of the contraband. 3. The evidence regarding the interception of the vehicle and the seizure of contraband was not satisfactory. The court noted discrepancies in the testimonies of prosecution witnesses. PW-1, who deposed about the seizure, was not present during the interception. PW-2, who claimed to be part of the detection party, admitted during cross-examination that he was not. PW-3 and PW-4, actual members of the detection party, did not confirm the presence of accused 3 and 4 in the lorry during interception. Independent witnesses PW-5 and PW-6 also did not mention the presence of accused 3 and 4 in the lorry. Accused 3 and 4, examined as DW1 and DW2, respectively, provided an alternate narrative that the lorry was intercepted near Khanapur and not Bantwala, as claimed by the prosecution. The defense's version was not effectively countered by the prosecution. Issue 3: Validity of Sanction The competence of the sanction order was questioned. The sanction order (Ex. P.10) was found to be invalid as it did not specify the involvement of each accused or the exact location of the interception and seizure. The sanction was accorded without proper application of mind by the Sanctioning Authority, making it invalid in the eyes of the law. Issue 4: Proper Appreciation of Evidence The trial Judge's appreciation of evidence was deemed proper. The Judge noted that the prosecution failed to produce crucial documents, such as invoices and gate passes, which could have substantiated the movement of the lorry. The statements of accused 3 and 4, alleged to be given under Section 108 of the Customs Act, were not corroborated by other evidence and were considered retracted confessions. Issue 5: Necessity for Interference Given the findings on the above issues, the court concluded that there was no need to interfere with the trial Judge's judgment of acquittal. Order The appeal was dismissed, upholding the acquittal of accused Nos. 3 and 4.
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