1 Cri-Appeal-549-92.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 549 OF 1992 Shri B.C. Rajak ) Assistant Collector of Customs ) New Custom House, Bombay. )..Appellant (Orig. complainant) Versus 1. Shri Mahesh J. Shah ) 13, Sawai Bldg. 1st floor, 467/C, ) Dr. Babasaheb Ambedkar Road, ) King Circle, Matunga, ) Bombay 400 019. ) 2. Shri Salilkumar Prithvinarayan ) Mishra ) 466/3 Mehta Bldg. Opp.Khalsa ) College, Matunga, ) Bombay 400 019. ) 3. Shri Sukhdev Hariram Majithia ) 592/1, Anil Villa, ) Jame Jamshedji Road, Matunga, ) Bombay 400 019. ) 4. The State of Maharashtra ).. Respondents (Resp.Nos. 1 to 3 original accused) Smt. A.A.Mane, Special P.P. for the appellant. Mr.V.C.Gupte, Advocate for the respondent Nos. 1 & 2. Mr. Rajiv patil i/b. Ms. Seema Sarnaik, Advocate, for respondent No.3. Mr. Y.M.Nakhwa, APP, for the respondent No.4 State. CORAM: J.H.BHATIA,J. DATE : 10th December, 2010. 2 Cri-Appeal-549-92.sxw JUDGMENT : 1. The Assistant Collector of Customs, who is the original complainant, has preferred this Appeal challenging the Judgment and order dated 19.9.1991 whereby the learned Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, acquitted all the accused persons of the charges under Sections 135(1)(a) and 135(1)(b) read with Section 135(1)(ii) of the Customs Act. 2. Original accused Nos. 1 to 3 are respondents Nos. 1 to 3 in the present Appeal. According to the prosecution, accused Nos. 1 and 2 arrived at Sahar Airport on 16.11.1982. They had come from Lukasa by Zambian Airways Flight NO.AQZ-780. The Customs Officer noted that movement of the accused Nos. 1 and 2, who were near the conveyer belt, was suspicious and they appeared to be nervous. Both the accused were having one brown suitcase each. They also identified their suitcases. The concerned Customs Officer suspected that the suit cases must be containing some contraband and therefore, he followed them through green channel where they get themselves cleared at Counter No.9. After that, the said officer immediately intercepted the accused Nos. 1 and 2 and questioned them. It was revealed that both the baggages were pooled together and they were returning from Lusaka. The bags appeared to be heavy. Therefore, both 3 Cri-Appeal-549-92.sxw the accused along with baggages were taken to Intelligence Officer's Room for detailed examination. Even after removal of personal effects of the accused persons and after the suitcases were emptied, still they were heavy. Then inner brown lining was ripped opened and it was found that one bag contained 2.9 kg. Mandres tablets, while another bag had 3 kgs. of Mandres. On interrogation, accused Nos. 1 and 2 allegedly admitted that the said bags were given to them by the accused No.3 at Bombay for giving delivery to a person at Lusaka. Accused No.3 had arranged for their travelling expenses and also assured some payment. They had been to Lusaka, but the person, to whom delivery was to be made, could not be located. Therefore, they sought instructions from accused No.3 by sending him a telegram and thereafter they came back and were caught. The house of accused No.3 was searched. The said telegram was also recovered from his house. The contraband Mandres tablets as well as suitcases were sealed and seized at the spot. Samples were referred to C.A. and the C.A. confirmed that they were Mandres. After investigation, complaint was filed. 3. The accused pleaded not guilty. On behalf of prosecution, in all 10 witnesses were examined. After hearing the parties, the trial Court held that prosecution had failed to prove the offence and acquitted the accused. 4 Cri-Appeal-549-92.sxw 4. Heard the learned Counsel for the parties. Perused record and proceedings of the trial Court. 5. The trial Court noted several drawbacks and improbabilities in the prosecution story after analysing the prosecution evidence minutely on merits. Besides that, the trial Court also noted that the prosecution had failed to prove that a valid sanction was accorded by the Collector for prosecution of the accused. Section 137 (1) provides that no Court shall take cognizance of any offence under Section 135, except with the previous sanction of the Commissioner of Customs. Prior to the amendment of 1995, the sanction could be accorded by the Collector of Customs. As the incident of this case occurred on 16.11.1982, the sanction could be accorded by the Collector. In view of this legal positions, it was clear that no Court could take cognizance of the offence under Section 135 except with the previous sanction of the Commissioner of Customs. It is settled position of law that according of sanction is not a mere formality. The sanctioning authority has to apply his mind to all the facts and circumstances before according sanction for the prosecution. In the present case, the complainant had produced a sanction order which was marked Exhibit P-2. However, neither the sanction order was admitted by the accused in response to the notice under Section 294 of Cr.P.C. nor the sanctioning authority was examined before the Court to prove the sanction 5 Cri-Appeal-549-92.sxw order. Nothing was brought on record to show that Mr. S.K. Pali, Addl. Collector of Customs, who had allegedly accorded sanction, was not available for being examined before the Court. Even if he would not be available, the prosecution could examine some other person to prove that the said sanctioning authority had in fact perused the relevant evidence and documents and after application of mind, had come to conclusion that the accused should be prosecuted. In the present case, neither the Additional Collector of Customs was examined before the Court nor any circumstance was brought on record to show that he could not be examined nor any other evidence was produced to prove that the said Additional Collector of Customs had in fact accorded the sanction. Mere production of the document purporting to be the sanction order does not amount to proof of the sanction order. It is settled position of law that if the sanction order is not properly proved, it is fatal to the prosecution and the prosecution must fail. Therefore, in the present case, the prosecution has failed to prove that sanction was accorded by the sanctioning authority after application of mind to the facts and circumstances of the case. The prosecution must fail on that ground itself. In view of this, it is difficult to find fault with dismissal of the complaint by the trial Court. As I find that the complaint could be dismissed for want of proof of the sanction order, I do not see any reason to go into the merits of the case. 6 Cri-Appeal-549-92.sxw 6. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.)