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TMI Blog2017 (4) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less steel slit in coils underneath tin bend circle waste and that the said importer had mis-declared the import cargo with an intention to evade customs duty which is punishable under Sections 132 and 135(1)(a) of Customs Act, the complaint has filed against the respondent/accused. 3. Based on the above materials, the trial Court framed charges as mentioned in paragraph one of the judgment and the accused denied the same. In order to prove its case, on the side of the prosecution, as many as 4 witnesses were examined and 6 documents were exhibited. 4. Out of the witnesses examined, P.W.1 was working as Senior Intelligence Officer, Directorate of Revenue Intelligence. According to him, he initiated the investigation of the import of consignment by the respondent/accused and he enquired the respondent/accused on 13.06.2003. Then, he recorded the statements of the accused in Exs.P1 and P2 on 26.03.2003. P.W.2 is working as Intelligence Officer, D.R.I. Chennai. According to him, on 11.06.2003, he along with other D.R.I Officers on a specific information that the respondent/accused attempt to smuggle M.S. Sheets/Coils and Stainless steels/Coils in the guise of tin bend circle wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Public Prosecutor appearing for the appellant would submit that the Court below acquitted the accused without considering the statement made by the accused under Section 108 of the Customs Act, wherein the respondent/accused has clearly admitted that he has knowledge about the import and he has deliberately mis-declared the goods and given false declaration thereby committed an offence under Section 132 and 135(1)(a) of the Customs Act. Apart from that a valid sanction was obtained under Section 137 of the Customs Act and considering the above sanction, once the Court below took cognizance of the offence, but unfortunately during the trial the above said order of sanction was not marked before the Court. Once a cognizance was taken based on the sanction by the competent authority and the sanction order also available on record, merely on non producing the same as evidence in the Court, the Court below ought not to have acquitted the accused. The learned counsel appearing for the appellant further submitted that if the Court is of the opinion that the sanction order is necessarily be marked as evidence, the matter could be remanded back to the Court below for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms]. (2) No court shall take cognizance of any offence under section 136, (a) where the offence is alleged to have been committed by an officer of customs not lower in rank than [Assistant Commissioner of Customs] except with the previous sanction of the Central Government; (b) where the offence is alleged to have been committed by an officer of customs lower in rank than [Assistant Commissioner of Customs] except with the previous sanction of the [ Principal Commissioner of Customs or Commissioner of Customs]. 12. 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. The Hon'ble supreme Court in number of cases held that the grant of sanction is not a mere formaly, but a solemn and sacrosanct act which affords protection to a persons ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Hon'ble Supreme Court Judgment in MOHD. IQBAL AHMED Vs. STATE OF ANDHRA PRADESH reported in AIR 1979 SUPREME COURT 677, has held as follows:- it is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. 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. 15. Regarding the next contention of the learned counsel appearing for the appellant that in the statement given by the respondent/accused, he 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. 16. In an appeal against acquittal, there is double presumption in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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