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TMI Blog1985 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, framed by the learned Magistrate against the accused for offence under Section 135(1)(b)(ii) of the Customs Act. After full trial, the learned Magistrate acquitted both the accused of the offence with which they were charged and this order of Acquittal dated 27-11-1981 is challenged by the original complainant in this Criminal Appeal. 2. As observed above, both the accused are real brothers, but they are residing separately at Nanded. The prosecution alleged that the customs officers had reliable information that the accused acquired, possessed and dealt with some smuggled goods in contravention of the provisions of the Customs Act and, as such, those goods were liable for confiscation under Section 111 of the said Act. In pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution of the accused, the complainant filed private complaint against both the accused in the Court of the learned Chief Judicial Magistrate, Nanded, for offences mentioned in Paragraph 1 above. 4. The learned Magistrate framed charge under Section 135(1)(b) of the Customs Act against both the accused, to which they pleaded not guilty. They contended that their statements were extorted involuntarily from them by the customs officers. 5. The complainant examined five witnesses before the learned Magistrate and on considering their evidence, the learned Magistrate held that the original sanction was not produced by the complainant and, as such, he could not take cognisance of the offence with which the accused came to be charged. He als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. However, Shri Jadhav submitted that copy of the order of sanction was already produced with the complaint and it was only a technical defect on the part of the complainant that original order of sanction was not produced. He, therefore, made a prayer that the case should be remanded to the learned Magistrate for re-trial after permitting the Appellant to file the original order of sanction. This prayer for remand was stoutly opposed on behalf of the Respondents-accused. The record shows that the case was pending before the learned Magistrate for about three years. It is really surprising to note that even till the evidence was recorded, the complainant did not feel it necessary to file the original order of sanction. There is also no e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Nos. 1 and 2 and, as such, the search was illegal. In this connection, it should be important to bear in mind the provisions of Section 105(1) of the Customs Act. That section deals with powers to search premises and it provides :- "If the Assistant Collector of Customs, or in any area adjoining the land frontier, or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be Useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things." 9. Modak (P.W.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not possess proper authority to effect search is quite reasonable and, accordingly, I endorse the same. This is the second ground on which the learned Magistrate has acquitted both the accused. 11. Shri Jadhav then placed reliance on the presumption under Section 123 of the Customs Act. The learned Magistrate rightly held that the presumption would not be applicable in this case since the searches were illegal. The learned Magistrate dealt with the evidence of the panch witnesses, namely, Narsayya (P.W.4), who was examined on the panchnama of search effected at the house of accused No. 1; and Omprakash (P.W.5), who -worked as a panch at the time of search of the house of Accused No. 2. Narsayya stated that the customs authorities show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore point was advanced on behalf of the Respondents in this appeal and it was that a joint complaint against Accused Nos. 1 and 2 could not be maintained since the dates of offence in both the cases were different. It appears that it was not shown to the learned Magistrate how this complaint should be entertained in respect of the offences, which took place on two different dates. No nexus had been established between these two offences concerning two different persons. This was also one of the grounds on which the story of the complainant came to be discarded by the learned Magistrate, 14. It will thus be seen that the view taken by the learned Magistrate and the findings recorded by him on merits appear to be well justified on the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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