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TMI Blog1985 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ring out the incriminating goods contained in two steel trunks and one cardboard, etc. Accordingly, he went inside the room and brought out four packages which on search were found to contain 3,218 wrist watches of foreign origin besides fountain pens, side bars of watches and watch straps etc. Some exercise books containing accounts of smuggled watches were also found besides loose sheets and diaries in which something had been written. After about a couple of hours the respondent too arrived at the house. The recovery proceedings were still in progress. He was interrogated and his statement under Section 108 of the Customs Act (hereinafter called as 'the Act') was recorded. The recovered goods were seized and after obtaining the requisite information under Section 137 of the Act a complaint was instituted in February 1972 by the petitioner against the respondent for his prosecution under Section 135 of the Act. It was, inter alia, averred by the prosecution that the room from which the aforesaid incriminating goods were recovered contained some other luggage belonging to the respondent and neither the respondent nor his father could produce, when asked, any evidence documentary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further examined and cross-examined on 14th April, 1981 and 25th August, 1981 respectively. In view of this development the trial Court amended the charge on 14th September, 1981 by stating that the respondent was found to have acquired 3,331 wrist watches of foreign origin (besides, of course, fountain pens, side bars and watch straps, etc.). Subsequently, an application dated 3rd December, 1981 was made by the respondent purporting to be under Section 248(1) of the Code of Criminal Procedure for ordering his acquittal. He, inter alia, pointed out that the prosecution had failed to connect 3,331 wrist watches produced in court to be the same which had been allegedly seized from the house of the respondent both quantity wise and descriptionwise. Further, according to him, there was no valid sanction for his prosecution in respect of 3,331 wrist watches. However, the said application was dismissed by the trial Court vide order dated 11th March, 1982. Feeling aggrieved the respondent filed a revision petition against the said order in the Court of Session. The revision petition was heard by an Additional Sessions Judge who allowed the same vide order dated 18th December, 1982 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is reproduced below for ready reference : "Whereas it appears from the records of the case placed before me that adequate grounds exist for prosecution of Shri Siri Niwas Jain S/o Shri Pool Chand Jain resident of 4698, Gali Umrao Singh, Pahari Dhiraj, Delhi in connection with the recovery of 3,218 wrist watches of foreign origin, fountain pens and watch straps of foreign origin, etc. by Customs Staff on 13/14-4-71 for violation of section 3(2) of the Import Control Order, 1955 issued under section 3 of the Import and Export Control Act, 1947 read with section 11 of the Customs Act, 1962. 2. Now, therefore, in exercise of the powers conferred on me by section 137(1) of the Customs Act, 1962, I, R. Prasad, Collector of Customs and Central Excise, New Delhi hereby accord sanction for the prosecution of the said Shri Siri Niwas Jain for offences under section 135 of the Customs Act, 1962, in a court of Law having jurisdiction." The learned counsel for the respondent has rightly pointed out that a bare reading of the aforesaid order of sanction betrays total non-application of mind by the sanctioning authority. In the first instance, there is a reference to Section 3(2) of the Impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the accused of or his being concerned in any way in carrying, removing, disposing, harbouring, keeping, concealing, selling or purchasing or in any manner dealing with any goods which he knew or had reason to believe were liable to confiscation under Section 111. It was, therefore, incumbent upon the sanctioning authority not only to incorporate all material facts in the sanction but also to spell out precisely the nature of offence for which he was sought to be prosecuted. Unfortunately the order of sanction is conspicuously silent about both. It neither narrates the relevant facts except making a vague reference to the records of the case, nor does it say in what manner the respondent was concerned in the commission of offence punishable under Section 135 of the Act. 8. It is now well settled that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to a person accused of any offence against frivolous prosecution. It is, therefore, incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction had been made out. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but unfortunately the order of sanction if too laconic and brief to warrant an inference that he did consider all the relevant facts attending upon the complicity of the respondent in the commission of crime. Hence, the prosecution is liable to be quashed for want of a proper and valid sanction. 10. It is urged by the learned counsel for the petitioner that the question of validity of the sanction ought to have been raised by the respondent at an early stage of the trial and he, not having raised the same, should not be permitted to do so in this revision for the first time. However, this contention is apparently devoid of any substance because there is no such thing as rule of estoppel which would operate against the respondent-accused in challenging the validity of the sanction at any stage. The burden of proving a valid and legal sanction rests on the prosecution. Hence, it is open to the accused to challenge its validity at any stage of the case especially when the prosecution has not led any evidence to establish that all the facts germane to the grant of sanction were placed before and duly considered by the sanctioning authority. I am fortified in this view of the matter b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the value of the watches which were shown to him. Thus, the testimony of Shri Gupta does not establish even remotely that the watches which were exhibited during his deposition were the same which had been earlier seized from the house of the respondent. Indeed, Shri Gupta had no knowledge whatsoever of the source from where those watches were produced. As for the subsequent production of the wrist watches numbering 3,331 the confusion has been worse confounded. As would appear from a perusal of the deposition of N.S. Bhatnagar (PW 2) on 3rd November, 1980, 14th April, 1981 and 25th August, 1981, three trunks, Ex. P 95 to P 97, which were locked were produced in court and their locks had to be broken open because the keys thereof were stated to be not traceable. Although Shri Bhatnagar asserted in his examination-in-chief that the three trunks Ex. P 95 to P 97 were the same which had been seized from the premises of the accused but he frankly admitted during his cross-examination that the packages when sent by him in the court for the purpose of counting were not found sealed in the manner mentioned on page 5 of the Panchnama. He explained that it was so because the packages ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in besides fountain pens, side bars of watches and watch straps etc. However, there is not an iota of evidence on record to show that he had acquired possession of the incriminating goods; the only evidence on this point being his own statements made to the Customs officers under Section 108 of the Act on different dates. A perusal of the said statements, Ex. PW1/A, dated 14th April, 1971, Ex. PW1/B dated 15th April, 1971, Ex. PW10/A dated 7th June, 1971 and Ex. PW10/B dated 8th June, 1971 discloses that all that he confessed was that he had let out the room in question to his uncle Shri Arora Mal at Rs. 400/- per month and that the latter used to keep smuggled watches etc. in the said room and this fact was within his knowledge. However, he categorically disowned any concern with the wrist watches in question and he asserted that the keys of the lock on the room were with the two sons, namely Gurbachan and Ramesh of Aroora Mal. He explained that his only interest in the matter was to receive Rs. 400/- per month as rent for the safe custody of the wrist watches. Thus, his statement to the Customs authorities even if taken at its face value falls short of proving the charge on which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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