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TMI Blog1983 (4) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure and whether an appeal preferred at the instance of such an officer on the ground of the inadequacy of the sentence awarded, is maintainable. 2. Before adverting to the important legal question raised before us, the brief facts of these four appeals, in which the same question of law is involved, may be stated. 3. Criminal Appeal No. 688 of 1976. - This appeal arises out of the judgment made in C.C. No. 3336 of 1974 on the file of the Chief Metropolitan Magistrate, Madras, convicting accused 1 and 2 therein under Section 135(b)(ii) of the Customs Act and sentencing each of them to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for six months and further convicting both of them under Rule 126-P(2)(ii) of the Defence of India Gold (Control) Rules, 1962, for contravention of Rule 126-E of the Rules, and sentencing each of them to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for six months. Before the trial court, there were five accused, of whom accused 3 to 5 were acquitted. 4. The gist of the accusation against the five accused was as follows : Accused 1 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under exhibits P. 13 to P. 17, to which they replied under exhibits P. 18 to 22. Show cause notices under the Gold (Control) Act were also issued to accused 1 to 5, and exhibit P. 24 is a copy of one such notice. Exhibits P. 25 to P. 28 are the replies given by accused 1 to 4. Exhibits P. 23 to P. 20 are the adjudication orders passed under the Customs Act and the Gold (Control) Act by the Collector of Central Excise, Madras. Thereafter, on the strength of the sanction order, exhibit P. 30, the prosecution was launched. In support of the Prosecution, P.Ws. 1to 7 were examined, exhibits P. 1 to P. 31 were filed and M.O. 1 series to M.O. 6 series were marked. 6. Criminal Appeal No. 903 of 1976. - This appeal is preferred by the Assistant Collector of Central Excise, Vellore, through his counsel against the judgment made by the learned judicial First Class Magistrate, Vellore, in C.C. No. 403 of 1976, on his file, on the ground that the sentence of imprisonment till the rising of the court and the direction to pay a fine of Rs. 100 in default to suffer rigorous imprisonment for three months, for the convictions recorded on plea of guilt for the offences punishable under Sections 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 700, in default to suffer rigorous imprisonment for six months, for the offence under Section 85(l)(b) read with Sections 8(1) and (2) of the Gold (Control) Act, and to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 300 in default to undergo, rigorous imprisonment for six months, under Section 16(1) read with Section 86 of the Gold (Control) Act, on the ground that the sentences imposed by the trial court are inadequate. 11. The brief facts of the case which led to this prosecution can be stated thus : P.W. 1, the Inspector of Central Excise, on 28th June, 1973, at 10 a.m., searched the house of the accused at door No. 53, Ammapet Main Road, Salem, in the presence of P.Ws. 2 and 3 and others, on the strength of a search warrant, exhibit P.1, issued by the Assistant Collector of Central Excise, Preventive, Madras. In the room adjoining the front hall, where the accused was doing business as broker, on the floor and in a steel almirah, new and old ornaments were found. In another steel bureau kept upstairs, there were primary gold and gold articles with new gold o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths, while confirming his conviction passed by the trial court for an offence under Section 85(l)(ii)(a) read with Section 2(l)(i) of the Gold (Control) Act, 1968. This appeal has been filed on the ground of inadequacy of the sentence imposed by the lower appellate court. 15. The brieffacts of the case are as under : On 5th February, 1974, P.W. 1, the Inspector of the Central Intelligence Unit of Central Excise, along with the Superintendent and party, searched the house of the first accused situatd at Sathya Sai Nagar, Madurai, in the presence of the first accused s wife, accused 2 (since acquitted), and some independent witnesses, and recovered 17 bars of primary gold (M.O. 1 series) weighing 4946.900 grams, valued at Rs. 2,10,000. A voluntary statement under exhibit P. 2 was recorded from the second accused. The first accused was contacted on 16th April, 1974, and he gave a statement, exhibit P. 3, explaining that he was carrying on a business as broker in ornaments and that one Abdul Hasim gave him two paper packets which he had kept in his house under the bona fide belief that they contained only ornaments but he was shocked to realise that the packets contained gold piec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (3) ....................." 21. The expression the Central Government may also direct occurring in sub-section (2) has been substituted for the words the Central Government may direct , by section 29 of Act 45 of 1978 dated 18th December, 1978. The above section is newly inserted to give effect to the recommendation of the Law Commission in its 41st report, according to which an appeal should be provided against the inadequacy of a sentence and the ordinary court of appeal should be invested with power to deal with it. It may not be out of place to mention here that Section 378(2), Criminal Procedure Code, dealing with an appeal against acquittal also contains provisions analogous to Section 377(2). 22. A plain reading of the above, section shows that whilst section 377 (1) empowers the State Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be grossly inadequate. Any error in sentencing can be remedied only by the exercise of revisional power of the High Court. This is somewhat unsatisfactory. There seems no reason why the State Government should not appeal against an inadequate sentence ; nor why such an appeal cannot be handled by ordinary course of appeal. Cases of inadequate sentencing are frequently occurring and we consider the ordinary court of appeal should, in each case where the State considers it proper to lodge an appeal, be able to deal with it. We, therefore propose to add a new section in this chapter as section 417-A." 24. The proposed draft section read as follows : 417-A. (1) The State Government may, in any case of conviction on a rial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice Establishment by a notification. At the outset, we would like to point out that there is no special express provision either in the Customs Act or in the Gold (Control) Act regarding investigation of offences under the respective Acts. 27. It is to be noted that the Criminal Procedure Code inter alia provides for investigation of all categories of criminal offences. The First Schedule of the Code classifies Offences into two categories, viz.,(l) those punishable under the Indian Penal Code, and (2) those punishable under the other laws. Between these two classifications, the entire denotation of criminal offences is exhausted. We shall, therefore, now examine the meaning of the term investigation occurring in Section 377(2), Criminal Procedure Code. 28. Chapter XII of the present Criminal Procedure Code (corresponding to Chapter XIV of the old Code) (covering sections 154 to 176 in both Codes) comes under the heading Information to the Police and their powers to investigate and such powers of investigation include the power to take measures for discovery and arrest of the accused, to require attendance of witnesses, their examinations, recording of confessions, searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns placed on them in the use and exercise of such powers. For this purpose, sections 154 to 173 in Chapter XII of the Code may be cursorily glanced at. Oral information relating to the commission of a cognizable offence should be reduced to writing ; and such information, whether given in writing or reduced to writing, should be signed by the person giving it, and the substance thereof shall be entered in a register prescribed by the State Government (section 154). In respect of information regarding the commission of a non-cognizable offence, the substance thereof should be entered in a prescribed register. No police officer shall investigate a non-cognizable case without the order of concerned Magistrate (Section 155). Without the order of a Magistrate the police officer-in-charge of a police station may investigate any cognizable case (section 156). An officer-in-charge of a police station, when he receives information about the commission of a cognizable offence shall send forthwith a report of the same to a Magistrate (section 157). The police officer s report to a Magistrate under section 157 shall be submitted through a superior police officer if the State Government so dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm prescribed by the Government for the Magistrate taking cognizance of the offence (section 173). 34. As submitted by Mr. C. Krishnan, the learned counsel for the appellants in all these appeals, as per the definition of the word investigation , all the proceedings under the Code for the collection of evidence conducted by not only the police officer but also by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf, are included. Section 4 of the Code enacts that all offences under the Indian Penal Code shall be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code and all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of Investigation, inquiring into, trying or otherwise dealing with such offences. Hence, by virtue of sub-section (2), an offence falling under any other law should be investigated, inquired into, tried or otherwise dealt with according to the provision of the Code of Criminal Procedure, but subject to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Possession) Act. Sec. 10 Sec. 11 ____ ____ ____ 5. Foreign Exchange Regulation Act, 1973. Sec. 37 Sec. 34 Sec. 34 Sec.36 Power to seize goods, documents, etc. Power to arrest Power to examine persons Power to summon persons to give evidence and produce documents Congnizance 7 8 9 10 11 Sec.110 Sec.104 Sec.107 Sec.108 Sec.137 Sec. 66 Sec. 68 Sec. 64 Sec. 63 Sec. 97 Sec. 10 Sec. 10(B) ____ ____ Sec.20 ____ Sec.6 ____ Sec. 9 Sec.5 Sec.38 Sec. 35 Sec. 39 Sec.40 Sec.61 36. The provisions relating to the powers of officers under the Customs Act, the Gold (Control) Act, and other Central Acts are analogous to some of the provisions contained in the Criminal Procedure Code, whereunder the police officers have to investigate into the offences in compliances with those provisions as contemplated under Chapter XII. A question arose for examination before the Supreme Court in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n officer of the R.P.F. does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the old Code (Chapter XII of the new Code). It was further observed: The right and duty of an investigating officer to file a police report or a charge-sheet on the conclusion of the investigation is the hallmark of an investigation under the Code. Section 173(1) (a) of the Code provides that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer (RPF) conducting an inquiry under section 8(1) cannot initiate court proceedings by filing a police report. In the above case, their Lordships, agreeing with the dictum laid down in Barkat Ram s case A.I.R. 1962 S.C. 276 and Badaku Joti s case A.I.R. 1966 S.C. 1746= 1978 E.L.T. (J 323) (S.C.) held that an officer of the Railway Protection Force conducting an inquiry under Section 8(1) of the Railway Property (Unlawful Possession) Act, could not be equated with an officer-in-charge of a police station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new provision, viz., section 377, the meaning of the expression by any other agency empowered to make investigation into an offence under any Central Act other than this Code" occurring therein, was considered by the Supreme Court in Eknath v. State of Maharashtra A.I.R. 1977 S.C. 1177, while examining the question whether the officer under the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954), is vested with the power of investigation within the meaning of that expression as occurring in section 377 (2) of the Code, and it has been held by the Supreme Court as follows : The true test, therefore, under Section 377 (2), Criminal Procedure Code, is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by another agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. In other words, just like section 3 of the Delhi Special Police Establishment Act, there should be an express provision in the Prevention of Food Adulteration Act empowering the making of investigation under the Act. But no such express provision is found in the Prevention of Food Adulteration Act....... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent to instruct the Public Prosecutor to file an appeal. While so concluding the Bench observed thus : In our view, therefore, the scheme of the Act is to enforce the provisions of the Customs Act and to prevent the evasion of customs duty. The machinery created under this Act is not one for the purpose of investigation into crimes. It is only the side-effect resulting from the enforcement of the Customs Act that certain offences are detected. Certain imports and exports without licence are also detected. Since they also constitute offences on the basis of the material collected, a prosecution can be launched as provided in Chapter XIV. The machinery is, however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that that is a separate machinery for the purpose of investigation of crimes by-passing the provisions of the Criminal Procedure Code. 45. A single Judge of the Bombay High Court is State of Maharashtra v. Anderson Pinn Kay 1978 Cri. L.J. 1666, following Eknath s case A.I.R. 1977 S.C. 1177 and Laxmichand s case 1978 Cri. L.J. 845 held that the investigation of offences under the Customs Act by the Customs Officers do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceeding to inquire into a charge against any person, may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to, under the Code of Criminal Procedure, 1898, when investigating a cognizable case, found that section 21(2) confers on the Central Excise Officer the same powers as an officer-in-charge of a police station has when investigating a cognizable case, but that this power is conferred for the purpose of sub-section (1), which gives power to the Central Excise Officer, to whom any arrested person is forwarded to inquire into the charge against him. It further held that it does not, however, appear that the Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Criminal Procedure Code, we are of the opinion that mere conferment of powers of Investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer a police officer even in the broader view mentioned above. Otherwise, any person entrusted with investigation under section 202 of the Criminal Procedure Code would become a police officer. Neither i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term ( investigation ) as used in the Criminal Procedure Code, since an appeal has to be preferred only under the provisions of the Criminal Procedure Code. In our view, the scheme of the Customs Act is to enforce the provisions of the Customs Act and that of the Gold (Control) Act is for the control of production, supply, possession, etc., of gold. The machinaries created under those Acts are not for the purpose of investigation into crimes. It is only the side-effect resulting from the enforcement of the provisions of those Acts, that certain offences are detected. Since they also constitute offences on the basis of the material collected, the Prosecution can be launched as provided in Chapter XVI of the Customs Act and Chapter XV of the Gold (Control) Act. The machineries, however, are not created for the purpose of investigation of crimes under those Central Acts and it cannot be said that they are separate machineries for the purpose of investigation of crimes by-passing the provisions of the Criminal Procedure Code. Therefore, as pointed out by the Division Bench of the Bombay High Court in Laxmichand s case 1978 Crl. L.J. 845, extending the principle laid down in Eknath s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain provisions of the Criminal Procedure Code. For example, under Section 104(3) of the Customs Act, an officer of Customs is, in the matter of releasing the arrested persons on bail, given the same powers and are made subject to the same provisions, as in the case of an officer-in-charge of a police station as contemplated in the Criminal Procedure Code. Similarly, there is also a similar provision in the Gold (Control) Act, viz., Section 68(2) which is analogous to section 104(3) of the Customs Act. Under section 69 of the Gold (Control) Act, the provisions of Sections 102 and 103 of the Criminal Procedure Code relating to search and seizure could be made applicable. However, it will be relevant to note that Section 104(4) of the Customs Act specifically states that notwithstanding anything contained in the Code of Criminal Procedure, an offence under this Act shall not be cognizable. As pointed out supra, under Section 108(4) of the Customs Act, which is in pari materia with Section 63(4) of the Gold (Control) Act, every inquiry by any gazetted officer of the Customs department or any gazetted officer under the Gold (Control) Act, made under Section 108 or under Section 63, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but not including a police report. The explanation to the said definition is to the effect that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence, shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. The Supreme Court, in Eknath"s case A.I.R. 1977 S.C. 1177, after having observed that if, in a Central Act not being the Code of Criminal Procedure, provision is made empowering a particular agency to make investigation of offences under that Act, then the Central Government alone will be the competent authority to prefer an appeal under Section 377 (2), Criminal Procedure Code, held that the true test therefore, under Section 377 (2), Criminal Procedure Code, is whether the offence is investigated by any other agency empowered to make investigation under the Central Act other than the Criminal Procedure Code. In other words, there, may be an express provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court in Eknath s case A.I.R. 1977 SC 1177, for the application of Section 377 (2), Criminal Procedure Code, is to find out whether there is a specific provision in the Central Act concerned empowering any agency to make investigation into the offence under that Act, thereby meaning that in the absence of any such provision there is no investigation within the meaning of Section 377(2). Therefore, even though in Eknath s case A.I.R. 1977 S.C. 1177 the facts related to an offence under the Prevention of Food Adulteration Act, the principle laid down was clearly applicable to all the Central Acts. Hence, in view of all the discussions made above, we are in agreement with the view taken by Suryamurthy, J., holding that the Customs Officer is not an agency empowered to make investigation within the meaning of that expression as used in Section 377(2), Code of Criminal Procedure. 55. On the analogy of the above principles, we hold that the Assistant Collector of Central Excise under the Gold (Control) Act is also not an agency empowered to make investigation within the meaning of Section 377(2), Criminal Procedure Code. 56. In the result, we conclude that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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