Madras High Court
The Assistant Commissioner Of Customs vs Athishtarajan on 19 April, 2017
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 31.01.2017
Judgment Pronounced on : 19.04.2017
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Criminal Appeal No.1032 of 2007
The Assistant Commissioner of Customs,
Prosecution Unit(Sea Port),
Customs House,
Chennai. ... Appellant
Vs
Athishtarajan ... Respondent
Criminal Appeal filed under Section 378 Cr.P.C., against the order of acquittal passed by the learned Additional Chief Metropolitan Magistrare, E.O.II, Egmore, Chennai dated 05.09.2007 in E.O.C.C.No.342 of 2005.
For Appellant : Mr.M.Venkateswaran
Spl. P.P. for Customs
For Respondents : Mr.B.Sathish Sunder
JUDGEMENT
This Criminal Appeal has been filed against the order of acquittal passed by the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai dated 05.09.2007 in E.O.C.C.No.342 of 2005. The respondent/accused stood charged for the offence under Sections 132 and 135(1)(a) of the Customs Act,1962. The trial Court, after trial, acquitted the accused from all the charges framed against him. Challenging the same, the present criminal appeal has been filed by the complainant.
2.The case of the prosecution, in brief, is as follows:-
The respondent/accused imported tin bend circle waste in 3 containers from Malaysia through a known contact. Based on the documents received by him through Bank, he engaged a Customs clearing agent to file a Bill of Entry No.497999 dated 09.06.2003 for importing of 60.54 Metric Tonnes of Tin bend circle waste. Subsequently, the Department of Revenue Intelligence wants to examine the import consignment, the respondent/accused authorised one Muralidharan, the Customs clearing agent and he was present at the time of examination. In his present a detailed examination of the import consignment was conducted on 12.06.2003, and during the examination undeclared cargo in the form of steel sheets and slit coils were found concealed at the bottom of the container covered by the declared cargo. Apart from that the total weight of the imported consignment was found to be 82.85 metric tonnes as against the declared total quantity of 60.54 metric tonnes. On segregation of the declared and undeclared consignment, the declared cargo was found to be only 4.2 metric tonnes, which was also informed to the accused that the cargo will be cleared only after the opinion received from the National Metallurgical Laboratory[NML] and then the Customs clearing agent, three sheets of samples from undeclared cargo was handed over to the National Metallurgical Laboratory authorities for the purpose of testing. P.W.4, the Technical Officer, NML, Tharamani tested the samples and given a report Ex.P6. Since the respondent/accused has deliberately concealed MS/GI sheets and stainless steel slit in coils underneath tin bend circle waste and that the said importer had mis-declared the import cargo with an intention to evade customs duty which is punishable under Sections 132 and 135(1)(a) of Customs Act, the complaint has filed against the respondent/accused.
3. Based on the above materials, the trial Court framed charges as mentioned in paragraph one of the judgment and the accused denied the same. In order to prove its case, on the side of the prosecution, as many as 4 witnesses were examined and 6 documents were exhibited.
4. Out of the witnesses examined, P.W.1 was working as Senior Intelligence Officer, Directorate of Revenue Intelligence. According to him, he initiated the investigation of the import of consignment by the respondent/accused and he enquired the respondent/accused on 13.06.2003. Then, he recorded the statements of the accused in Exs.P1 and P2 on 26.03.2003. P.W.2 is working as Intelligence Officer, D.R.I. Chennai. According to him, on 11.06.2003, he along with other D.R.I Officers on a specific information that the respondent/accused attempt to smuggle M.S. Sheets/Coils and Stainless steels/Coils in the guise of tin bend circle waste in three containers and the above three containers were called and the customs seal in all the containers were found intact, and it was weighed separately, all the three containers were found to contain M.S. Sheets and Coils at the bottom of the container covered on top with tin bend circle waste. Hence, the said import consignment was detained under the Customs Act and resealed the same were handed over to CFS authorities for safe custody. He prepared observation mahazar Ex.P4. P.W.3 is working as Intelligence Officer, D.R.I, Chennai. According to him, he examined the consignment and after found the consignment was under declared to the extent of 22.315 Metric Tones. Subsequently, he conducting detailed examination in the presence of NML authorities on 12.06.2003, and during that examination certain undeclared cargo were kept concealed underneath the tin bend circle waste and he has segregated the consignment item wise and found that there were totally 4.120 Metric Tonnes of Tine bend circle waste, 56.497 Metric Tonnes of M.S. Sheets and 22.238 Metric Tonnes of Stainless in the form of coils, the samples were taken and they were sent for testing by NML authorities. The market value of the sheet was around Rs.25 Lacs. P.W.4 is working as Technical officer in National Metallurgical Lab at Tharamani, Chennai. He has tested the samples and given report and the same was marked as Ex.P6.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false and he did not examined any witness nor marked any documents.
6. Having considered all the above materials, the trial Court acquitted the accused on the ground that even though a sanction was granted under Section 137 of the Customs Act, and the sanction was not marked before the Court below, apart from that even the statements[Exs.P1 and P2] given by the respondent/ accused, under Section 108 of the Customs Act, there is no inculpatory materials available against the respondent/accused. Now, challenging the above said order of acquittal, the present Criminal Appeal has been filed by the complainant.
7. I have heard the Mr.M.Venkateswaran, learned Special Public Prosecutor for Customs cases and Mr.B.Sathish Sunder, learned counsel appearing for the respondent/accused and I have also perused the materials available on record.
8. The learned Special Public Prosecutor appearing for the appellant would submit that the Court below acquitted the accused without considering the statement made by the accused under Section 108 of the Customs Act, wherein the respondent/accused has clearly admitted that he has knowledge about the import and he has deliberately mis-declared the goods and given false declaration thereby committed an offence under Section 132 and 135(1)(a) of the Customs Act. Apart from that a valid sanction was obtained under Section 137 of the Customs Act and considering the above sanction, once the Court below took cognizance of the offence, but unfortunately during the trial the above said order of sanction was not marked before the Court. Once a cognizance was taken based on the sanction by the competent authority and the sanction order also available on record, merely on non producing the same as evidence in the Court, the Court below ought not to have acquitted the accused. The learned counsel appearing for the appellant further submitted that if the Court is of the opinion that the sanction order is necessarily be marked as evidence, the matter could be remanded back to the Court below for the purpose of producing the order of sanction as evidence and he sought for allowing this appeal.
9. Per contra, the learned counsel appearing for the respondent would submit that the non production of sanction is not mere irregularity, and under Section 137 of Customs Act, no Court shall take cognizance of any offence except with the previous sanction of the competent authority. But, admittedly, in this case even though there is a previous sanction issued by the competent authority which was not marked before the Court through any witnesses, and only by producing the sanction order as evidence, the Court can satisfy regarding validity of the sanction and consider whether the sanctioning authority applied his mind. Apart from that even the statement given by the accused before the authority under Section 108 of Customs Act nothing inculpatary against the accused. Hence, the Court below rightly considered all the facts and circumstances acquitted the accused and there is no reason to interfere with the well considered order of acquittal passed by the Court below. In support of his contention, the learned counsel appearing for the respondent/accused relied upon a Judgment in ASSTT. COLLECTOR OF CUS., R & I(P) Vs. HUSSAIN ABBAS SHAIKH & OTHERS reported in 1992 (59) E.L.T. 394(Bom.) and another Judgment in ASSTT. COLLECTOR OF CUS.(PREV.), BANGALORE Vs. P.M.ABDUL RAHAMAN reported in 2001 (133) E.L.T. 299(Kar.)
10. I have considered the rival submissions.
11. So far as the first contention of the learned counsel appearing for the appellant regarding the sanction under Section 137 of the Customs Act, getting a previous sanction is the condition precedent for initiation of prosecution for the offence under the Customs Act. Even though the learned counsel for the respondent/accused contended that the previous sanction was granted by the competent authority, the sanction order was not marked before the Court and no witness was examined by the appellant to prove that the proper sanction was granted for prosecuting the accused. Section 137 of the Customs Act reads as follows:-
Section 137 in the Customs Act, 1962 137 Cognizance of offences. (1) No court shall take cognizance of any offence under section 132, section 133, section 134 or [section 135 or section 135A], except with the previous sanction of the [Principal Commissioner of Customs or Commissioner of Customs].
(2) No court shall take cognizance of any offence under section 136,
(a) where the offence is alleged to have been committed by an officer of customs not lower in rank than [Assistant Commissioner of Customs] except with the previous sanction of the Central Government;
(b) where the offence is alleged to have been committed by an officer of customs lower in rank than [Assistant Commissioner of Customs] except with the previous sanction of the [ Principal Commissioner of Customs or Commissioner of Customs].
12. Even though the court below held that a sanction order passed by the Commissioner of Customs was filed along with complaint, but it was not marked before the Court as an evidence. The existence of valid sanction is pre-requisite to take cognizance of offence alleged to have been committed under the Customs Act. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, and the entire proceedings are rendered void ab initio. The Hon'ble supreme Court in number of cases held that the grant of sanction is not a mere formaly, but a solemn and sacrosanct act which affords protection to a persons against frivolous prosecution and the Court shall also consider whether before granting sanction, the sanctioning authority was aware of the facts constituting the offence and apply its mind before granting sanction for prosecution. Hence, in the absence of marking the sanction order before the Court, the Court cannot examine the correctness of the sanction order, merely because the order of sanction was form part of the records, the Court cannot looked into, unless it is marked as evidence through any witness. In the similar circumstances, the High Court of Karnataka in a Judgment reported in 2001(133) E.L.T. 299(Kar)(supra), has held as follows:-
6. Besides that, the prosecution has not marked the sanction said to have been obtained to prosecute these respondents. The learned Court below has held that some order is produced but the same is not marked through any witness. Therefore, it is clear that sanction also is a mandatory requirement to prosecute the respondents under Section 135 of the Gold Customs Act and the same is not proved. The Hon'ble Supreme Court also confirmed the same by dismissing the SLP filed by the complainant against that judgment in SLP.No.(Crl.)No.4496 of 2001 dated 20.07.2000.
13. In a similar circumstances, the High Court of Bombay in ASSTT. COLLECTOR OF CUS., R & I(P) Vs. HUSSAIN ABBAS SHAIKH & OTHERS reported in 1992 (59) E.L.T. 394(Bom.), has held as follows:-
27. Further as decided by the Supreme Court as aforesaid, it must be clear either from the original documents or by evidence led by the prosecution that the Court must be satisfied that the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and had applied its mind for the same. In the present case, as already pointed out above, the prosecution has filed only the true copy of the order of sanction and none of the five witnesses from the Customs examined by the prosecution even referred to the order of the sanction. In the light of these circumstances, as observed by the Supreme Court, the prosecution is liable to fail on the ground of sanction alone.
14. So far as the next contention of the learned counsel appearing for the respondent/accused that since the sanction order is already available, the matter can be remanded back to the Court below for the purpose of marking the same. It is settled position of law that the Court should not remand the matter to fill up a lacuna deliberately left by the prosecution, and after a long lapse of time the matter cannot be remanded for the purpose of marking the sanction order. The Hon'ble Supreme Court Judgment in MOHD. IQBAL AHMED Vs. STATE OF ANDHRA PRADESH reported in AIR 1979 SUPREME COURT 677, has held as follows:-
it is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
15. Regarding the next contention of the learned counsel appearing for the appellant that in the statement given by the respondent/accused, he has clearly admitted his involvement of the offence. The Court below elaborately considered the statement of the accused and come to a conclusion that there is nothing inculpatory in his statement to connect him with the crime.
16. In an appeal against acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and the fundamental principle of criminal justice delivery system is that every person, accused of committing an offence shall be presumed to be innocent, unless his guilt is proved by a competent Court of law. Secondly if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. In the above said circumstances, I find no reason to interfere with the order of acquittal passed by the trial Court. Hence, the appeal fails and the same is deserves to be dismissed.
17. In the result, the Criminal Appeal fails and accordingly, the same is dismissed. The judgment passed by the learned Additional Chief Metropolitan Magistrare, E.O.II, Egmore, Chennai dated 05.09.2007 in E.O.C.C.No.342 of 2005 is hereby confirmed.
19.04.2017 rrg Index:Yes/ No Internet: Yes/No To
1.The Additional Chief Metropolitan Magistrare, E.O.II, Egmore, Chennai.
2.The Assistant Commissioner of Customs, Prosecution Unit(Sea Port), Customs House, Chennai.
3.The Special Public Prosecutor for Customs cases, High Court, Madras.
V.BHARATHIDASAN,J rrg Pre Delivery Judgment in Crl.A.No.1032 of 2007 19.04.2017 http://www.judis.nic.in