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TMI Blog1991 (6) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia without declaring them and that the market value of the gold was Rs. 1,02,630/-. 3. Four witnesses were examined on the side of the prosecution as P.Ws. 1 to 4 and Exs. P-1 to P-10 were marked. M.Os. 1 to 4 were also marked by the prosecution. The accused has examined S. Panchyappam, Senior Intelligence Officer, Directorate of Revenue Intelligence, Madras-17 as D.W.1 and marked Ex. D-1 on his side. Learned Additional Chief Metropolitan Magistrate found that the prosecution has proved its case beyond reasonable doubt on merits; but it failed to prove the validity of the sanction and on that ground, found the accused not guilty and acquitted him under Section 248(1) Cr.P.C. Aggrieved with the judgment of the lower Court the Assistant Collector of Customs has filed this Appeal. 4. Mr. P. Rajamanickam, learned Central Government Public Prosecutor appearing for the appellant contended that the Court below erred in holding that the sanction is invalid. Learned Counsel for the accused/respondent Mr. M.A. Abdul Ghani contended that there is no valid sanction as held by the court below. It was also contended on behalf of the respondent that the findings of the lower Court are also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Collector, Customs, the sanctioning authority had considered the records of the case and also the facts and materials placed before him and found that adequate grounds existed for prosecuting the accused for an offence connected with the seizure of four gold biscuits each weighing 10 tolas (making in all 40 tolas), having a market value of Rs. 1,02,630/- and that therefore the Additional Collector of Customs, in exercise of power conferred upon him under Section 137(1) of the Customs Act, accorded sanction for Filing of a complaint by the Assistant Collector of Customs (Prosecution) Preventive Department, Customs House, Madras for an offence under Section 135(l)(a) of the Customs Act, 1962, as amended. Therefore, learned counsel for the appellant contended that the sanctioning authority has applied his mind before issuing the sanction. 8. Learned Counsel for the respondent Mr. M.A. Abdul Ghani submitted that the sanctioning authority has not at all applied his mind and that the records of the case had not been placed before him. According to him, the particulars of the records which were placed before the sanctioning authority have not been mentioned in the sanction order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a complaint and that the case records were put up by him before the Additional Collector of Customs for issue of sanction for prosecution. The Additional Collector, Customs passed orders on 17-2-1986 granting sanction for prosecution Ex. P-10 as that order. The complaint was filed by the Assistant Collector, Customs in the lower Court on 18-2-1986. According to P.W. 4, mahazar, statement of accused, green card ticket were placed before the Additional Collector on 12-2-1986. In the cross-examination P.W. 4 admitted that a week prior to 12-2-1986, the papers were sent to the Public Prosecutor for drafting the complaint. The complaint was drafted even before the file was placed before the Additional Collector. He has also admitted that he had formed an opinion that there would be a prosecution of the accused. The file was placed before the Additional Collector along with the drafted complaint. On 17-2-1986, sanction was accorded. 9. Learned Counsel for the respondent submitted that even according to P.W. 4, the mahazar, statement of accused and green card ticket were placed before the Additional Collector on 12-2-1986. But a week prior to 12-2-1986, the papers were sent to the Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was only Rs. 90,000/- on 18-10-1985. According to this witness, the value of the gold was ascertained from the price of gold published in newspaper. He admitted that he used to read both Hindu and Express. But he did not admit that the value was arrived at by his imagination and that the value was only Rs. 90,000/- as on 18-10-1985. I am unable to accept the evidence of this witness even though he is stated to be a Senior Grade Preventive Officer in Madras Customs because when the value of the gold seized was given in the adjudication proceedings as Rs. 60,645/-, how this witness was able to say that the value is Rs. 1,02,630/-. Therefore, his evidence is incredible. This is a sorry state of affairs that an Officer of his Rank should give evidence contrary to their own official proceedings, namely, Ex. P-9, and adjudication proceedings and also Ex. P-5 show cause notice. P.W. 1 should have produced the newspapers dated 18-10-1985 showing the value of the gold, as according to him, he ascertained the value of the gold as on 18-10-1985 from the newspapers, but he had not filed the same in this case. 12. Learned Counsel for the respondent contended that the reason for the prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the drafting of the complaint was done which shows the malacious attitude on the part of the prosecution especially suppressing the value of the gold seized and increasing the value beyond Rs. 1,00,000/- for the purpose of getting conviction. Therefore, learned Counsel for the respondent contended that even the findings of the lower Court with regard to the commission of offence by the accused are not correct in view of the abovesaid circumstances. I am also of the view that the prosecution is interested in getting the conviction of the accused by some means or other and in that view, P.W. 1's evidence giving the value of the gold seized at Rs. 1,02,630/- is without any basis at all. 13. The next contention raised by the learned Counsel for the appellant is that the sanction is valid. Learned Counsel for the respondent contended that the prosecution has not proved that the biscuits seized were gold. A suggestion was also put to P.W.1 by the counsel for the accused in the lower Court that the seized article is not gold. But P.W.1 denied the suggestion. 14. Learned Counsel for the appellant relied upon a decision reported in Balumal Jamnadas Batra v. State of Maharashtra - 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of A.P. -1979 Crl. L.J. 633. There, Their Lordships of the Supreme Court held as follows: "It is 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 has been made out constituting the offence. This should be done in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C. 1. In A.I.R. 1961 S.C. 1, Their Lordships of the Supreme Court had an occasion to consider the scope of Section 20(1) of Prevention of Food Adulteration Act (37 of 1954). Even under that Act sanction for prosecution of the accused is necessary. The observations of Their Lordships are as follows :- ".......In the first place, the reason of the Rule could not suggest or imply such a condition. The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore, provides that the complaint should be filed, either by a named or specified authority or with the written consent of such authority. To read by implication that before granting a written consent, authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a court appears reasonable, but the further implication that the complainant must be named in ......" Extracting the above observation of the Supreme Court, it has been held in the decision reported in M/s. Bhagat Stores, Panaji v. State (supra) it has been observed as follows: ..... 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