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TMI Blog1991 (12) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and were posted at Santacruz Air-Port. On the said date early morning Intelligence Officers Kohak, P.W. 1 and Debrai, P.W. 4, were proceeding from Santacruz Air Port to Sahar Air Port. They saw accused No. 2 driving a scooter from Santacruz Air Port to N.I.P.T. building at Sahar Air Port. Accused No. 1 was sitting on the pillion of the scooter of accused No. 2. Accused No. 1 was carrying a black colour brief case which he was holding and which was kept on his legs while the scooter was being driven. Due to suspicion both Kohak and Debrai followed accused Nos. 1 and 2 on their scooter. Near Sahar Air Port near the bus stop they intercepted both the accused persons. At that time, it is the case of the prosecution that they made the enquiry about the contents of the brief case, to which, according to the prosecution, accused No. 2 replied "ARE JANE DO, ISME LAFDA KA MAL HAI". At this stage I may point out that though P.W. 4 in his deposition referred to the aforesaid utterances by accused No. 2, P.W. 1 Kohak in his deposition stated that accused No. 2 replied "JANE DO, KAI KO LAFDA KARTA HAI" It was further alleged by the prosecution that thereafter both the accused and Kohak, P.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 in the Immigration enclosure and accused No. 1 was to hand over the said brief case near Centaur Hotel to the said Abdulla. Accused No. 1 was promised to get about 50% of the value of the wrist watches. Accused No. 1 came on duty on 2nd September, 1980 at 4.30 a.m. and at that time he appraised accused No. 2 about the job of taking out the brief case containing wrist watches for delivering to Abdulla. When the Gulf Air flight arrived and the passengers started coming to the Immigration counter, Abdulla came to accused No. 2's counter. The disembarkation card of Abdulla was checked and okayed by accused No. 2 and in the presence of accused No. 2 black echolac brief case was handed over by Abdulla to accused No. 1. Thereafter accused No. 1 requested accused No. 2 to help him in taking the briefcase out of the Airport on scooter and also assured him that for doing this work accused No. 2 was to be paid handsomely. Thereafter accused No. 1 proceeded towards Sahar at 5.45 a.m. When they were near the gate at I.P.T. Sahar, they were stopped by two persons who were following them on scooter. Thereafter they followed those two persons to the Air Intelligence office at Santacruz Airport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this letter he specifically stated that accused No. 2 was totally unaware of the fact about the contents of the brief case and accused No. 2 was an innocent about the whole transaction. 8. In the last para of the said letter, accused No. 1 had also stated that the earlier statement which he has given under Sec. 108 dated 2nd September, 1980, Exh. P-2 was given by him under the threat of assault. If one goes through the aforesaid letter, it is clear that accused No. 2 has retracted from the statement which he has given earlier on 2nd September, 1980. 9. In the particular case accused No. 1 also got himself examined under Sec. 315 of the Criminal Procedure Code. In the said statement accused No. 1 stated that on the date of the incident when he went out of the Immigration Hall he noticed accused No. 2 starting his scooter. He, therefore, asked accused No. 2 as to where he was going. Accused No. 2 replied that he was going towards Sahar Airport. Accused No. 1, therefore, asked accused No. 2 to give him a lift on his scooter to Sahar Airport. According to the deposition of accused No. 1, at that time accused No. 2 was carrying a brief case which he had placed in between the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed each other on major part of the incident. Further it is the case of both the accused persons that earlier to this incident, because of a particular event the relations of accused No. 2 were strained with P.W. 1 and P.W. 4. It is the case of the defence that one lady Police Officer Smt. Borjea working at the Airport made a complaint to accused No, 2 her friend that both P.W. 1 and P.W. 4 were misbehaving with her and, therefore, accused No. 2 fired both of them. Because of this incident the relations between P.W. 1 and P.W. 4 on one hand and accused No. 2 on the other hand got strained. The aforesaid suggestion made by accused No. 2 in his cross-examination and also in his examination under Sec. 313 of the Criminal Procedure Code is also supported to some extent by the evidence of P.W. 6 Inspector Soloman. 13. Further the trial Court also held that the panch witness has made lot of inconsistent statements and his deposition is also inconsistent with the deposition of the other prosecution witnesses. The trial Court also discarded the evidence led by the prosecution by producing statement under Sec. 108 given by accused No. 1, by coming to the conclusion that the aforesaid testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 1 as under - "The Additional Collector of Customs, J.H. Joglekar has sanctioned the prosecution of the accused above named for offences under Section 135 of the Customs Act, 1962. Hereto annexed and marked Exhibit 'A' is a true copy of the said sanction." 19. From the aforesaid complaint, it is clear that while filing the said complaint before the trial Court, the complaint was accompanied by a true copy of the sanction. That means the original sanction order was not produced in the trial Court. Further excepting producing true copy of the original order of sanction, none of the five prosecution witnesses, who are Customs Officers examined on behalf of the prosecution even referred to the said sanction. The trial Court, therefore, according to me, had no alternative but to come to a conclusion that the prosecution has failed to prove the sanction as required under Section 137 of the Customs Act and, therefore, the whole prosecution proceedings are bad in law. It is pertinent to note that in spite of the fact that the trial Court has given the positive finding about the sanction in Para 32 of its Judgment even before this Court, while arguing the appeal against acquittal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned from the Department by the prosecution, not a single witness is asked to identify the signature. This being the position, according to Shri Menon, on this count also the prosecution is liable to fail, as there is no sanction produced by the prosecution as required under Sec. 137(1) of the Customs Act. 25. In order to support this proposition, Shri Menon relied on the decision in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, A.I.R. 1979 S.C. 677. The aforesaid case is under Prevention of Corruption Act. Section 6(1) of the Prevention of Corruption Act, 1947 is as under :- "6(1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3A) of section of this Act, alleged to have been committed by a public servant, except with the previous sanction." After going through the aforesaid Section 6(1) of the Prevention of Corruption Act, it is clear that the said section is same mutatis mutandis as Section 137(1) of the Customs Act. Therefore, the observations of the Supreme Court made while interpreting Sec. 6 of the Prevention of Corruption Act will also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the appellant that the sanction was accorded by Shri J.H. Joglekar, the then Additional Collector of Customs for initiating the prosecution, which was produced along with the complaint. The learned Counsel Shri Gupte, therefore, filed this application on behalf of the appellant to formally prove the said sanction. After going through the observations made by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, A.I.R. 1979 S.C. 677, supra, this Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. According to me; this is the case where this lacunic position is deliberately left by the prosecution not only before the trial Court but also before this High Court. As already pointed out above, in the complaint filed before the trial Court the prosecution has referred to the true copy of the sanction annexed to the complaint. Nowhere the said complaint mentions that this is the original copy. According to Shri Gupte's argument, what was annexed with the complaint was the original copy. However, in the light of whatever has been stated in the complaint, it is doubtful whether as argued by Shri Gupte, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such ought to have brought it to the notice of the Counsel or examined a court witness instead of bringing about the technical lapse for the first time in the judgment." 29. In the aforesaid ground what has been mentioned is that failure to formally prove the sanction cannot be fatal to the prosecution, which is completely in contradiction to what has been observed by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, A.I.R. 1979 S.C. 677, supra. Further in the said ground it has been stated that the accused have not objected the aforesaid ground. Shri Menon, learned Counsel on behalf of respondent No. 2, contended that in fact objection on the basis of sanction was argued but since from the evidence the case of the accused being of clear acquittal, he wanted observations from the Court on the facts so that the same observations of the Court would come to his help in the departmental proceedings. Shri Menon was also appearing on behalf of the accused during the course of trial. Surprisingly it is mentioned in the said ground that the failure on the part of the appellant to formally prove the sanction cannot be said to be fatal to the prosecution. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The High Court, however, took the view that inasmuch as the State Government itself had accorded sanction to 'prosecute' the appellant in that case, in exercise of powers under Section 132, there was no need for sanction under Section 197 of the Criminal Procedure Code, the reason being both the sanctions are to be given by the State Government in respect of the same person and on the same allegations, and, therefore, according to the High Court, the sanction under the provisions of Section 132 can be treated as a sanction under the other provisions of Section 197(3) of the Criminal Procedure Code. However, the Supreme Court set aside the High Court's decision on the ground that the High Court has overlooked the scope, purpose and character of sanction under Section 132 of the Criminal Procedure Code on the one hand and Section 197 of the Criminal Procedure Code on the other. The observations made by the Supreme Court in the aforesaid case are also to the effect that when sanction is required under Section 197 for taking cognizance by the Court, then failure to prove the sanction is fatal to the prosecution. 33. In the light of the aforesaid observations and in the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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