2017 (4) TMI 1077 - HC - Customs

Criminal appeal - validity of acquittal order given by Trial Court - offence u/s 132 and 135(1)(a) of the CA, 1962 - attempt to smuggle M.S. Sheets/Coils and Stainless steels/Coils in the guise of tin bend circle waste in three containers - certain undeclared cargo were kept concealed underneath the tin bend circle waste - accused was acquitted by trial court on the ground that there is no inculpatory materials available against the respondent/accused - sanction under Section 137 of the CA - Held that - Even though the court below held that a sanction order passed by the Commissioner of Customs was filed along with complaint, but it was not marked before the Court as an evidence. The existence of valid sanction is pre-requisite to take cognizance of offence alleged to have been committed under the Customs Act. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, and the entire proceedings are rendered void ab initio. It is settled position of law that the Court should not remand the matter to fill up a lacuna deliberately left by the prosecution, and after a long lapse of time the matter cannot be remanded for the purpose of marking the sanction order. The accused has clearly admitted his involvement of the offence. The Court below elaborately considered the statement of the accused and come to a conclusion that there is nothing inculpatory in his statement to connect him with the crime. In an appeal against acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and the fundamental principle of criminal justice delivery system is that every person, accused of committing an offence shall be presumed to be innocent, unless his guilt is proved by a competent Court of law. Secondly if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. There is no reason to interfere with the order of acquittal passed by the trial Court - appeal dismissed - decided in favor of accused.

Issues Involved
1. Validity of the sanction under Section 137 of the Customs Act.
2. Admissibility and inculpatory nature of the statements under Section 108 of the Customs Act.
3. Appropriateness of the trial court's acquittal decision.
4. Possibility of remanding the case for marking the sanction order as evidence.

Detailed Analysis

1. Validity of the Sanction under Section 137 of the Customs Act
The trial court acquitted the accused primarily because the sanction order under Section 137 of the Customs Act was not marked as evidence. The court emphasized that obtaining a previous sanction is a condition precedent for initiating prosecution under the Customs Act. The court stated, "The existence of valid sanction is pre-requisite to take cognizance of offence alleged to have been committed under the Customs Act." The court cited precedents, including judgments from the High Courts of Karnataka and Bombay, which held that the sanction must be marked as evidence to validate the prosecution. The court concluded that, "In the absence of marking the sanction order before the Court, the Court cannot examine the correctness of the sanction order."

2. Admissibility and Inculpatory Nature of the Statements under Section 108 of the Customs Act
The trial court found that the statements made by the accused under Section 108 of the Customs Act did not contain any inculpatory material. The court noted, "Even the statements [Exs.P1 and P2] given by the respondent/accused, under Section 108 of the Customs Act, there is no inculpatory materials available against the respondent/accused." The appellate court also upheld this view, agreeing that the trial court had "elaborately considered the statement of the accused and come to a conclusion that there is nothing inculpatory in his statement to connect him with the crime."

3. Appropriateness of the Trial Court's Acquittal Decision
The appellate court upheld the trial court's decision to acquit the accused, reinforcing the principle that an acquittal strengthens the presumption of innocence. The court stated, "In an appeal against acquittal, there is double presumption in favour of the accused." The court further noted that even if two reasonable conclusions are possible, the appellate court should not disturb the trial court's finding of acquittal. The appellate court concluded, "I find no reason to interfere with the order of acquittal passed by the trial Court."

4. Possibility of Remanding the Case for Marking the Sanction Order as Evidence
The appellate court rejected the appellant's request to remand the case for the purpose of marking the sanction order as evidence. The court cited the Supreme Court's judgment in *MOHD. IQBAL AHMED Vs. STATE OF ANDHRA PRADESH*, which held that courts should not remand cases to fill up lacunae deliberately left by the prosecution. The court stated, "The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it."

Conclusion
The appellate court dismissed the criminal appeal, confirming the trial court's judgment of acquittal. The court emphasized the necessity of marking the sanction order as evidence, the non-inculpatory nature of the accused's statements, and the principle of double presumption in favor of the accused in appeals against acquittal. The court concluded, "In the result, the Criminal Appeal fails and accordingly, the same is dismissed. The judgment passed by the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai dated 05.09.2007 in E.O.C.C.No.342 of 2005 is hereby confirmed."

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