9911796707
TMI Blog1980 (4) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... he strength of a search warrant on 26-2-1968 searched the room No. 15 of the above Hotel which was in occupation of the accused respondent in presence of witnesses. In course of search large quantity of jewelleries and precious stones viz. 83 strings of coral beads, 6 pieces of gold rings set with coral, one pair of gold ear tops with coral fittings and one pair of gold cuffinks ad. of foreign origin were found inside a suitcase and leather brief case belonging to the accused respondent. Besides a sum of Rs. 2,400/- in Indian currency of hundred rupee notes inside the leather brief-case and also some incriminatory documents indicating accounts of business transaction were found; that the accused having failed to produce any valid document such as import licence and permit in support of his lawful acquisition and/or legal importation and/or possession of those articles, the Customs Offices on reasonable belief that those articles were smuggled goods liable to confiscation and that the currency notes were the sale proceeds of the smuggled goods seized them under seizure list. After obtaining requisite sanction a petition of complaint was filed in court of the Chief Presidency Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Magistrate by his order dated 13-3-1974 acquitted the accused. Being aggrieved by the aforesaid order of acquittal the petitioner obtained special leave which was granted and there after the present appeal was filed which was admitted. 3. Mr. Surathi Mohan Sanyal learned Advocate appearing on behalf of the appellant, contends that the learned Magistrate was wrong in holding that the facts disclosed in evidence do not make an offence under S. 135(b) of the Customs Act. It is submitted that on the proper reading and assessment of evidence on record, the learned Magistrate was wrong in not holding that all the ingredients of S. 135(b) of Customs Act have been made out in this case. With all emphasis Mr. Sanyal urges that the learned Magistrate erred in law in holding that there is material defect in framing of the charges inasmuch as the learned Magistrate failed to note that the order framing the charges was upheld by this Court. Mr. Sanyal next contends that the learned Magistrate was wrong in holding that the charge under S. 135(b) of the Customs Act was unsustainable as the Board of Excise and Customs passed an order on appeal against the order in adjudication proceedings di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ghosh contends that nothing prevented Sri Sinha from filing the complaint on his own as an individual public officer in discharge of his official duty. It was not necessary for him to do so in a representative capacity. Mr. Ghosh submits that the description "representing Union of India" was misleading, factually incorrect and legally not justified as there is no provision either in the Criminal Procedure Code or in the Customs Act for filing complaint in a representative capacity. Only in the case of an offence under certain special statute there are provisions that a particular person or authority should file a complaint and that the said person or authority may delegate this power or appoint an agent for this purpose. In Prevention of Food Adulteration Act, 1964, Section 20 contains a provision that a complaint should be filed by the State Government or by the Central Government or by a person to whom this power may be delegated by Central Government. There is no such provision in the Customs Act. Mr. Ghosh, in the next place submits that the Assistant Collector of Customs cannot represent the Union of India as he has not been authorised by the Union of India to do so. The Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the Union of India not being the complainant has not right of appeal under Section 417(3) of the Old Code or under Section 378(4) of the New Code. The Vakalatnama in the present appeal has been signed by Sri Jivan Krishna. But there is nothing to show that he was authorised to represent the Union of India. Nor did he sign the Vakalatnama in a representative capacity. It is not known why Sri A.M. Sinha who filed the petition of complaint did not file the petition of special leave or the petition of appeal. To support the contention that the case having been instituted upon a complaint it was only the actual complainant who had the right of appeal. Mr. Ghosh relies on several decisions, namely AIR 1964 Calcutta 64 (Nanilal Samanta v. Rabin Ghosh : AIR 1967 Calcutta 452 (on the death of Monmatha Nath Halder his heirs and sons Sachindra Nath Halder Ors. Petitioners v. Niranjan Mondal Ors. opposite parties) AIR 1964 Allahabad 497 (State through Medical Officer of Health, Muradabad applicant v. Iswar Garan opposite party). Mr. Ghosh contends that the Union of India has no right of appeal in the instant case. Only the State Government could have preferred an appeal against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the order of acquittal. 6. Mr. Ghosh, in the next place, contends that the sanction is bad in law as the sanctioning authority did not apply his mind when granting sanction. After hearing the learned Advocate for the parties and on going through the sanction itself we do not accept the contention raised by Mr. Ghosh and find that the sanction has been properly granted. 7. With regard to the merits, Mr. Ghosh contends that in this particular case on the facts by the prosecution a charge could have been framed under Section 135(a) of the Customs Act and not under Section 135(b) of the Act. This matter came up to this Court and a Division Bench of this Court in which I was a party in the case of Remo Morgani v. State of West Bengal Anr. reported in 79 DWN 53 was of opinion that in this case the charge should be framed under Section 135(b) of the Customs Act. In coming to such finding we relied on a decision reported in AIR 1966 S.C. 955 which was a case under the Sea Customs Act. Mr. Ghosh wants to make a distinction between Section 167(81) of the Sea Customs Act and Section 135 of the Customs Act, 1962. It is also submitted that the said distinction was noted by their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof with regard to proper valuation becomes extremely important. It should be remembered that the accused produced a receipt and documents translated by the Indian Embassy which establish the bona fide of the defence. We find much substance in the contention raised by Mr. Ghosh to the effect that the valuation has not been proved satisfactorily. That being so, it cannot be said with certainty that the goods were not eligible for importation. After a careful consideration of the arguments advanced by the learned Advocate for the parties, we accept the argument of Mr. Ghosh that the appeal not having been filed by complainant and the complainant who filed the complaint having not been authorised by the Union of India to file the complaint, Sri Jivan Krishna the Customs Officer who has filed the appeal was not competent to file the same. There is nothing to show that Sri Jivan Krishna could represent the Union of India. We, therefore, accept the preliminary objection raised by Mr. Ghosh that the appeal is not maintainable. We also accept the arguments of Mr. Ghosh on merits. This being the position, we do not find anything to interfere with the order of acquittal. 8. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
