2010 (3) TMI 631 - HC - Customs

Absence of the lower court record the appeal cannot be decided on merit - no paper is available with the office of City Magistrate or in the office of Central Excise Department - After a gap of more than 30 years re-trial of the accused persons is also not possible as no paper of the case is available - acquittal of the accused-respondents can not be disturbed by Court.

Summary

Issues: Appeal against acquittal under Indian Custom Act and Gold (Control) Act due to non-availability of lower court record.

In this case, the appellant, an Assistant Collector of Customs & Central Excise, filed an appeal under Section 378 of the Code of Criminal Procedure against the acquittal of the accused-respondents, Gopal Saran and Madho Saran, for offences under Section 135(B) of the Indian Custom Act and Section 85 of the Gold (Control) Act. The appeal was based on the judgment and order dated 31-3-1979 passed by the City Magistrate Bareilly. However, it was revealed that the lower court record for case No. 504 of 1974 had been weeded out in 1985, and despite efforts to reconstruct the record, no papers were available. Various correspondences confirmed the unavailability of the case papers, even after reaching out to the Central Excise Department Bareilly. The learned amicus curiae argued that without the lower court record, the appeal could not be decided on merit, and no illegality in the impugned judgment was identified. Citing a precedent, it was contended that interference in the acquittal would not be justified due to the lack of record, making a retrial of the accused persons impossible after more than 30 years.

The court acknowledged the submissions made by the amicus curiae, agreeing that the appeal could not be decided on merit in the absence of the lower court record. Despite exhaustive efforts by the CJM and City Magistrate Bareilly, the record could not be reconstructed, as no papers were available in either office. Given the significant time lapse of over 30 years, ordering a retrial was deemed unfeasible since no case papers were accessible even at the Central Excise Department Bareilly. Consequently, the court held that the acquittal of the accused-respondents could not be disturbed, as hearing the appeal on merit without the lower court record was not feasible. It was emphasized that ordering a retrial now would serve no useful purpose due to the unavailability of case papers. Therefore, the appeal was dismissed based on the inability to proceed without the essential lower court record.

Additionally, the amicus curiae, Smt. Sandhya Agarwal, was awarded a fee of Rs. 4000, and the office was instructed to provide a copy of the judgment to the City Magistrate Bareilly for information and necessary action.