2009 (12) TMI 233 - HC - Customs

Prosecution- Petitioner sentenced to three years imprisonment for smuggling of 360 foreign marked gold biscuits. Second panchnama contended as not placed before sanctioning authority rendering sanction for prosecution invalid. No estoppel against plea of sanction and the same can be raised at any stage. Sanction accorded after due application of mind. Sanction order containing factual narration of case. Second panchnama for display of contraband to television media not a necessary fact to be put before sanctioning authority and not relating to gist of offence. First panchnama on recovery and seizure of gold relevant and same placed before sanctioning authority. Sanction not suffering from infirmity.

Summary

Issues Involved:
1. Tampering of case property.
2. Validity of sanction accorded by the Department.
3. Fairness of the trial process and pending enquiry.

Issue-wise Detailed Analysis:

1. Tampering of Case Property:

The petitioner argued that the sanctity of the case property was compromised due to a second panchnama drawn on 10-10-1991 for media exposure, which allegedly tampered with the sealing process of 9-10-1991. The petitioner cited a precedent (Amarjit Singh & Anr. v. State) where similar actions led to an acquittal due to the possibility of tampering.

However, the court found that the tampering argument was unsubstantiated. The second panchnama clearly documented the removal and re-sealing of the paper slips in the presence of new witnesses, maintaining the integrity of the case property. The court noted that the petitioner's counsel could not specify any prejudice suffered due to this process. The court also distinguished the cited precedent, emphasizing that the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act were not applicable in this case.

2. Validity of Sanction Accorded by the Department:

The petitioner contended that the sanction for prosecution was invalid as the proceedings of the 10-10-1991 panchnama were not presented to the Sanctioning Authority, citing various judgments to support this claim. The court examined the sanction document (Ex.PW-1/B) and found it to be comprehensive, detailing the factual background and demonstrating due application of mind by the Sanctioning Authority.

The court held that the display of the case property to the media on 10-10-1991 was not a material fact affecting the validity of the sanction. The essential fact was the recovery of 360 gold biscuits, which was adequately detailed in the panchnama dated 9-10-1991 and presented to the Sanctioning Authority. Therefore, the sanction was deemed valid and without infirmity.

3. Fairness of the Trial Process and Pending Enquiry:

The petitioner argued that the trial judge's direction for an enquiry into the display of the case property on television indicated uncertainty about the conviction, infringing on the petitioner's right to a fair trial. The court dismissed this argument, stating that the enquiry related to the conduct of the investigating officer and not the substance of the offence.

The court referenced judgments (Kothari Filaments v. Commissioner of Cus. and Pooja Batra v. Union of India) cited by the petitioner but found them inapplicable. The enquiry's outcome would not affect the conviction for evasion of customs duty under Section 135(1)(b) of the Customs Act, 1962.

Conclusion:

The court upheld the petitioner's conviction under Section 135(1)(b) of the Customs Act, 1962, and the sentence of three years rigorous imprisonment with a fine of Rs. 1 lakh. The arguments regarding tampering, invalid sanction, and fairness of the trial were found to be without merit. The petition was dismissed.