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TMI Blog2012 (11) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P.1 to 6 are marked. The learned Magistrate has believed the case of the prosecution, convicted the accused for the offence complained of by the complainant/ Assistant Commissioner of Customs, Bangalore. 4. The learned Senior Advocate Shri Kiran S. Javali for the accused vehemently submit the following grounds for the consideration by the Court :- (1) The State has placed reliance on Seizure Mahazar, it is a case instituted on a private complaint under Section 200 Cr.P.C. So. it is for the State to prove the necessary elements to bring home the guilt of the accused. In such a situation, the panch witnesses are not examined by the prosecution. Unless the panch witnesses are examined by the prosecution, on the aspect of the seizure at the time of the alleged incident in question, the case as the one putforth is not proved in accordance with law. to substantiate this proposition, the learned Advocate places reliance on the orders of this Court in Criminal Revision Petition No. 168/1977 dated 20-1-1978. (2) He also contends that it is for the State to prove the necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Court. In other words the Court sitting in a revision is not an Appellate Court. 7. The point that arises for consideration is as under : Whether the conviction recoded by the learned Presiding Officer, Special Court in C.C. No. 414/1999 confirmed by the Presiding Officer. Fast Track Court-IV in Criminal Appeal No.103/2003 requires interference at the hands of this Court? 8. This Court in Sivhamurtrhy Swamy v. Agodi Songanno reported in AIR 1969 Mysore 12 has held that the evidence is recorded to find out the truth to the best of one's ability. 9. Apex Court in Lt. Governor Nct and others v. Ved Prakash @ Vedu (Appeal (Criminal) No. 530/2006, decided on 5-5-2006) while dealing with personal liberty, the duty of the court to find out the proof of the offence has held as follows : "The High Court and this Court would undoubtedly jealously guard the fundamental rights of a citizen. While exercising the jurisdiction rested in them invariably, the Courts would make all attempts to uphold the human right of the proceedee. The fundamental right under Article 21 of the Constitution of India undoubtedly must be safeguarded. But while interpreting the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the accused in the toilet at the Airport, a plastic bag. The said plastic bag was cleaned by the accused. Accused has handed over the same to the DRI. on verification of the said plastic bag, it contained a Travellers cheques of Indian value at Rs.7,89,225/-. The accused was not in a position to provide any documents for acquiring the said foreign currency. So, the complainant contends that the accused had committed an offence under Section 135(1)(b) of the Customs Act, 135(1)(ii) of the Customs Act, 1962. 13. After framing of the charge, the learned Magistrate has permitted the complainant to lead evidence. P.W.1 examined is the complainant. He states that he has received sanction as per Ex.P.1 and therefore, he has filed a complaint. P.W.2 is the officer, who is said to have translated the voluntary statement given by accused 1 to English as per Ex.P. 3. P.W. 3. is the investigating Officer, who is said to have identified the accused found the foreign currency totally valued at Rs. 14,62,766.50/- 14. In the cross-examination the suggestion to the witness - P.W.3 is (for better appreciation. it is extracted) as follows : "It is false to say that we have not seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mangoes, the accused was sweating. So he further enquired, thereafter, the accused was taken to the toilet and the accused while coming out of the toilet has brought in a plastic cover that contained foreign currency. Thereafter he took the possession of the foreign currency. This latter part of the investigation asserted by P.W.3 is not at all controverted. So the submission of the learned Senior Advocate that there is no material placed by the prosecution to link the possession of the mango box with the accused cannot be accepted. 18. One more reason that is found in the facts of the case is that it is the positive case of P.W.3 that he questioned the accused to collect the passport, collect the air ticket and then checked the mango box. By the time he checked the mango box with an item that was checked in as the luggage at the receiving counter of the Air India, the check in number given is AI951115. None of these surrounding circumstances which are found along with the accused are not challenged. 19. The next challenge is in regard to the non-examination of the panch witnesses. The Apex Court in Mon Bora @ Bijay Bora v. State of Assam reported in 2002 Crl.L.J.740 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edent. So, I am of the considered opinion the reasoning of the Court in Crl.R.P.NO.168/1977 is not attracted to the facts of the case. 21. The next submission by the learned advocate for the accused is in regard to the sanction. The learned Advocate places reliance on the orders of this Court in Criminal Appeal No. 522/1991, dated 16-8-1994. It is true this Court in this appeal was considering the sanction accorded to when the accused was found in a bus stand at Belgaum with certain gold. But in the facts of the case, when Ex.P.1 is marked without any objection, sanction is not a sanction in accordance with law cannot be urged again. if the accused was disputing the sanction or the legality of the sanction, he could have spelt out by objecting marking of Ex.P. 1. Having not done so, the submission that the sanction accorded is not in accordance with law and there is no application of mind, urged by the learned Advocate for the accused is without any merit so, it is rejected. 22. The next ground of attack is in regard to the framing of the charge. a careful consideration of the charge would disclose that the learned Magistrate has recorded Section 135(1)(ii) but has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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