Gujarat High Court
Linder Frank Wolfgang vs Union Of India (Uoi) on 1 November, 1999
Equivalent citations: (1999)1GLR619, (2000)2GLR256
Author: R.R. Tripathi
Bench: R.R. Tripathi
JUDGMENT M.R. Calla, J.
1. The applicant/appellant was arrested by the Customs officers under sec.104 of the Customs Act, 1962 ("the Act" for brevity) on 19.12.1996 for the offence punishable under sec.135 of the Act, at Sardar Vallabhbhai Patel International Airport, Ahmedabad, when he came from Muscat, on the allegation that 88 biscuits of gold were recovered from his person. The officers of the Customs Department filed a criminal case against the present appellant before the Additional Chief Metropolitan Magistrate, Ahmedabad under sec.135 of the Act being Criminal Case No. 18 of 1997. The Additional Chief Metropolitan Magistrate, after trial held the applicant to be guilty for the offence under sec.135 of the Act and convicted him accordingly and sentenced the applicant to simple imprisonment for a period of five years and to pay a fine of Rs.5000/- and in default to further undergo simple imprisonment for three months, on 31.3.1999.
2. The applicant preferred appeal against the conviction and sentence as aforesaid before the City Sessions Judge, Ahmedabad and this appeal preferred on 12.4.1999 was registered as Criminal Appeal No. 42 of 1999. It is the case of the applicant/ appellant that this appeal before the City Sessions Judge, Ahmedabad was heard and as a part of hearing the arguments on behalf of the applicant/ appellant were over. In the meanwhile the appeal for enhancement of sentence was filed by the Union of India before this Court and it is this Appeal filed by the Union of India which is numbered as Criminal Appeal No. 539 of 1999 with the prayer that sentence awarded by the Additional Chief Metropolitan Magistrate was not adequate and therefore, the sentence be enhanced. This Appeal against inadequacy of the sentence praying for enhancement of the sentence was filed before this Court on 14th June 1999. On 20th July 1999, the learned Single Judge of this Court issued notice and made it returnable on 3.8.1999. Thereafter on 3.8.1999, the Appeal was admitted. It further appears from the record of Criminal Appeal No. 539 of 1999 that on 8th July 1999, the Section Officer, C.F.C. (Criminal), submitted a Note that after filing of Criminal Appeal No. 539 of 1999, as aforesaid, by the Union of India, the Registry made inquiries from the Principal Judge, City Sessions Curt, Ahmedabad as to whether any appeal has been preferred by the accused, i.e. applicant herein against the judgments and order passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 18 of 1997 and thereupon, the Registrar, City Sessions Court, Ahmedabad vide his letter dated 5th July 1999, informed the Registry of the High Court of Gujarat that the accused, Shri Linder Frank Wolfgang had preferred Criminal Appeal No. 42 of 1999 in the City Sessions Court No. 13, Ahmedabad and the same was kept for hearing on 2nd July 1999 and the accused was in judicial custody. This submission dated 8th July 1999 was placed before the Court for appropriate orders to call for record of Criminal Appeal No. 42 of 1999 filed by the accused in the City Sessions Court, Ahmedabad or such orders as may be deemed fit and proper by the Court. On 16th July 1999, the Court passed an order that Criminal Appeal No. 42 of 1999 filed by the accused in the City Sessions Court, Ahmedabad be called for and be placed along with this appeal, i.e. Criminal Appeal No. 539 of 1999 and the record and proceedings shall reach this Court on or before 20th July 1999. This is how Appeal No. 42 of 1999, which was pending before the City Sessions Court No. 13, Ahmedabad, against conviction and sentence, reached this Court as called for by this Court in connection with the present Appeal, being Criminal Appeal No. 539 of 1999, and the Registry registered that appeal of the Sessions Court, i.e. Criminal Appeal No. 42 of 1999 as Criminal Appeal No. 788 of 1999 under Rule 337 of the Gujarat High Court Rules, 1993.
3. Now on 22.10.1999, the present application, being Criminal Misc. Application No. 6436 of 1999 was moved with the prayers as under:
"(A) remand the Appeal for enhancement of sentence being Criminal Appeal No. 539 of 1999 before the ld. City and Sessions Judge, Ahmedabad City along with the records and proceedings of the trial court with a direction that Criminal Appeal filed by the applicant being Criminal Appeal No. 42/99 be heard together and disposed of as early as possible.
(B) direct the City & Sessions Court/ Judge, Ahmedabad City that if law requires, permission may be granted to the respondent No. 1 to modify its enhancement Appeal into a revision application before the Hon'ble City & Sessions Judge so that the requirement of the judgment reported in 1997 GLR page.147 decided in the case of Prabhudas v. Babubhai may be complied with.
(C) direct the Hon'ble City & Sessions Judge to take up the Appeal filed by the applicant and decide and dispose of the same as expeditiously as possible along with the proceedings for the enhancement of sentence instituted by the respondent No. 1.
(C/1) Be pleased to declare that enhancement of sentence, appeal of respondent No. 1 is premature and not maintainable under the law.
(D) pass such other and further orders as deemed fit and proper in the attending facts and circumstances of the present case in the interest of justice, equity and conscience."
4. At the time when the matter came up before the Court for arguments, Shri Harbinder Singh, appearing on behalf of the applicant argued that the appeal for enhancement as has been filed by the Central Government is not at all maintainable in view of the provisions of sec.377(2) of the Code of Criminal Procedure, 1973 ("the Code" for brevity) and therefore, the appeal for enhancement of sentence may not be entertained by this Court and the same be dismissed and Criminal Appeal No. 42 of 1999 which was pending before the Sessions Court and which has been summoned before this Court and registered as Criminal Appeal No. 788 of 1999 may be sent back to the Sessions Court for disposal in accordance with law. In support of the above argument, Shri Singh, learned counsel further submitted that a reading of the provisions of the Act would show that basically the officers of the Customs Department are charged with the duty to give effect to the provisions of the Act and for that purpose, if any person or party is found to have violated the provisions of the Customs law, they can hold an inquiry against him and on the basis of such an inquiry complaint is filed before the concerned court so as to subject the defaulting person or party to trial for the purpose of appropriate punishment in accordance with law. For this purpose, officers of the Customs Department may exercise such powers as provided in the Code for the purpose of filing complaint and prosecuting the party or person and yet it is not a case of investigation as such by the Customs Department. Nor the officers who are exercising powers under the Act can be said to be working as an investigating agency of the Central Government and therefore, in case any person or party is convicted by the concerned court for violating the Customs law, the Central Govt. cannot file an appeal for enhancement of the sentence even if the Central Govt. finds that the sentence awarded by the trial court is inadequate. In such cases the provisions with regard to the revision, i.e. sec.397 of the Code read with sec.401 of the Code may be there for revision proceedings, but there is no question of appeal for the purpose of enhancement of the sentence. Sec.377 of the Code is reproduced hereunder for ready reference.
"377(1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
Section 2(h) of the Code is also reproduced hereunder :
"2. In this Code unless the context otherwise requires -
... ... ...
... ... ...
(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;"
5. In support of the submissions as aforesaid, the learned counsel for the applicant has relied upon the decision of the Supreme Court in the case Eknath Shankarrao Mukkawar v. State of Maharashtra, AIR 1977 SC 1177. In this case the High Court's power of enhancement of sentence has been upheld under revisional jurisdiction and it is also found that such power is not taken away merely because there is a provision for appeal. However, while dealing with the scope of sec.377 of the Code, the Supreme Court has held that under sec.377(1) of the Code the State Government has a right to appeal against inadequacy of sentence in all cases other than those referred to in subsection (2) of that section. According to the Supreme Court the true test under sec. 377(2) of the Code is as to whether the offence is investigated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. The Supreme Court has found that in absence of any express provision in the special enactment just like section 3 of the Delhi Special Police Establishment Act, mere provision of an in built mechanism of some kind of investigation in that Act is not decisive of the matter. In absence of any express provision in the Act, it cannot be held that the officers of the department are empowered to make investigation under the Act. It was held that sec.377(2) of the Code is not attracted and the appeals are maintainable by the State Government under sec.377(1) of the Code. Sec.377(2) of the Code is not attracted. In para 15 of the judgment while dealing with sec.3 of the Delhi Special Police Establishment Act, it has been observed that the Central Government may by notification in the official gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. It is only when such a notification is made by the Central Government that the Delhi Special Police Establishment is empowered to investigate the specified offences. Similarly, if in any other Central Act, not being the Code of Criminal Procedure, a provision is made for empowering a particular agency to make investigation of offences under that Act, then also the Central Government alone will be the competent authority to prefer appeal under sec.377(2) of the Code of Criminal Procedure. Of course, the Supreme Court was dealing with the case under Prevention of Food Adulteration Act. In this Case of Eknath v. State of Maharashtra (supra) so far as the law is concerned as to what would mean investigation by an agency, as are the words used in sec.377(2), in para 17 of the judgment, it has been observed that investigation under sec.2(h) of the Code is an inclusive definition and is of wide import. At the end of para 17, the Supreme Court has observed as under:
"In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspectors are empowered to make investigation under the Act. Section 377(2) Cr. P.C., therefore, is not attracted and the appeal under Section 377(1) Cr. P.C. at the instance of the state Government is maintainable. .. .."
6. Reliance was also placed on a decision of Bombay High Court in the case of State of Maharashtra v. Anderson Finn Kay Ove, reported in 1978 Criminal Law Journal 1666. It was a case directly under the Customs Act. The Bombay High Court has taken the view that investigation of offence under the Customs Act does not fall under sec.377(2) and the appeal for enhancement of sentence at the instance of State Govt. is competent. In this case the maintainability of the appeal by the State was questioned and it was sought to be justified in the proceedings in revision petition as directed by the Central Govt. under sec.377 of the Code to file proceedings for enhancement of sentence. While dealing with the provisions of sec.377(2) of the Code an exception was noticed that whenever investigation has been carried out by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offence under the Central Act other than the Code of Criminal Procedure, the Central Govt. may direct the Public Prosecutor to present an appeal. No such appeal had been filed, but the appeal had been filed at the instance of the State Govt. under sec.377(1) of the Code. The Court observed that the decision on the point depends upon the finding whether any other agency was empowered to make investigation under the Customs Act, 1962. The Court also took notice of the Division Bench decision in Criminal Appeal No. 898 of 1974 rendered on 31st August 1977 reported in 1978 Cri. LJ 845, wherein the contention was repelled that under the Customs Act, 1962, an agency is created which is empowered to make investigation into an offence under the Customs Act, 1962, which is a Central statute. It has been quoted as under:
"The proper view of the provisions will be that the Customs Act has been enacted primarily for the enforcement of the provisions of the Customs Act and to prevent the evasion of duty in the matter of imports and exports. The scheme of the Act is to enforce the provisions of the Customs Act and to prevent the evasion of the Customs duty. The Machinery created under this Act is not one for the purpose of investigation into crimes. It is only the side effect resulting from the Customs Act that certain offences are detected. Certain imports or exports without licence are also detected. Since they also constitute offences on the basis of the material collected, a prosecution can be launched as provided in Chap. XVI. The machinery is however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that that is a separate machinery for the purpose of investigation of crimes bypassing the provisions of the Criminal Procedure Code. There is, therefore, no warrant in thinking that the investigation of the Customs crime falls under sub sec.(2) of S. 377 Cr. P.C. so as to render the State Government incompetent to instruct the Public Prosecutor to file an appeal."
7. While making reference to the Supreme Court decision in the case of Eknath Shankarrao Mukkawar (supra), it has been observed that mere carrying out some investigation by a person empowered under the Act cannot be equated with the creation of an agency empowered to make investigation into the offence under any Central Act. In Asstt. Collector of Central Excise (Preventive), Madras v. V. Krishnamurthy and others, reported in 1983 Cri. LJ 1880, the Division Bench of the Madras High Court considered the scope and meaning of the word 'investigation' in para 32 and it has been observed that as per the definition of the word 'investigation', all the proceedings under the Code for the collection of evidence conducted by not only the police officer but also by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf, are included. Sec. 4 of the Code enacts that all offences under the IPC shall be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code and all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the same provision but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. It has been concluded that if an authority under any other law is empowered to investigate into an offence under that law, that law should prescribe the mode of investigation. In such a case, the salutary principle underlying S. 377(2) of the Code would apply equally to other officials, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes. It is not the garb of the designation under which the officer concerned functions, that matter, but the nature of the power he exercises or the character of the function he performs which is decisive. The question, therefore, in each case is : Does the officer under the particular Act substantially exercises the powers and discharges the duty of prevention and detection of crimes? The Division Bench of the Madras High Court also considered the question as to whether a Customs Officer can be regarded as a Police officer within the meaning of sec. 25 of the Evidence Act and in this regard it has been quoted from the Supreme Court decision in the case of State of Punjab v. Barkat Ram, AIR 1962 SC 276, as under:
"The duties of Customs officers are very much different from those of police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to the detection of infractions of customs law have been conferred on officers of the Customs Department as are conferred on officers of the police, it is not a sufficient ground, for holding them to be police officers within the purview of Section 25 of the Evidence Act. the Customs Officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalty act judicially".
8. In para 11 of the decision in Ramesh Chandra Mehta v. State of West Bengal, reported in AIR 1970 SC 940, it has been observed that:
"Under Section 171 A of the Sea Customs Act, a Customs Officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by clause (3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an inquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provision of the Sea Customs Act with the commission of any offence."
In para 24 of this very judgment it has been observed that :
"Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also entitled under that Act to stop and search conveyances: he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. But these additional powers with which the Customs Officer is invested under the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer in charge of a police station for the purpose of releasing any person on bail or otherwise. The expression "or otherwise" does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premise or conveyances without recourse to a Magistrate, do not make him an officer in charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be carried to the Central Government. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue."
9. In K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997) 3 SCC 721, in the context of sections 108, 110 and 111 of the Act, the Supreme Court has held that a person suspected by a Customs Officer of having committed an offence under the Act is not an accused at that stage, he becomes an accused only when summons are issued by a competent Court/ Magistrate pursuant to a complaint lodged by the competent Customs Officer and hence his statement recorded during an enquiry under sec.108 or during confiscation proceedings is not that of an accused within the meaning of sec.24 of the Evidence Act. It has further been held that the Customs officer recording the statement of a person who is suspected of having committed an offence under the Act, although not a police officer, is an authority within the meaning of sec. 24 of the Evidence Act and therefore, a confessional statement recorded by reason of statutory compulsion or given voluntarily by the accused pursuant to his appearing against summons or on surrender, held, cannot be said to have been obtained by threat, inducement or promise and hence, it is admissible in evidence for prosecution under sec.135 of the Act or other relevant statutes. Such a confessional statement although subsequently retracted, if on facts found voluntary and truthful, can form the exclusive basis for conviction and it is not necessary that each detail in the retracted confession be corroborated by independent evidence. The question of retracted confession has also been considered with reference to sec.164 of the Evidence Act.
10. As against it, Shri Asim Pandya, learned counsel appearing on behalf of the Union of India has placed strong reliance on the decision of the Supreme Court in Directorate of Enforcement v. Deepak Mahajan and another, reported in 1994 (2) GLH 603. Shri Pandya has placed heavy reliance on the observations made by the Supreme Court in paras 110, 112 and 113 of this judgment. In para 113, the Supreme Court has observed that:
"Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, siezures, interrogation, etc. Besides, a statutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Act, ... ... ..."
The Supreme Court has referred to several Central Acts by way of illustration in a tabular form at page 633 to show that the officers under the Central Acts including the Customs Act enumerated at item 2 of the table enjoy certain powers during the course of an investigation or inquiry or proceeding under the concerned Special Act, though not in strict sense of an investigation under Chapter XII of the Code as undertaken by police officers including the filing of a police report under Section 173(2) of the Code. In para 116 of this judgment it has been finally concluded that the word 'investigation' cannot be limited only to police investigation but on the other hand, the said word has wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. In para 118 of this judgment, the Supreme Court has also expressed its agreement with the view taken by the Honourable Mr. Justice M.P. Thakker, Chief Justice of the Gujarat High Court (as he then was) speaking for a Division Bench in N.H. Dave, Inspector of Customs v. Mohmed Akhtar, reported in 15 ELT 353 (Guj.), while examining the import of section 104 of the Customs Act. In the aforesaid decision the Gujarat High Court ruled that the definition of 'investigation' as given in sec.2(h) of the Code is an inclusive definition; no doubt it will not strictly fall under the definition of investigation insofar as the inclusive part is concerned, but then it being an inclusive definition, ordinarily expression 'investigation' cannot be overlooked and investigation means search of material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by the police officer or Customs officer, who intends to lodge complaint.
11. Shri Asim Pandya appearing for the Union of India also contended that the latter part of sec.377(2) is not to be considered on the principle of ejusdem generis and it should be read separately from the earlier part and he has also submitted that the words 'investigation' and 'inquiry' are interchangeable. He has submitted that the powers which have been given to the Customs officers are in the nature of investigation under sec.2(h) of the Code and under the Act there are provisions with regard to detection as well as prevention, there is adjudicating process by the departmental officers so as to impose penalties, confiscation and for recovery of the duty evaded. According to him functions of the air intelligence are in the nature of investigation and he has also submitted that a difference has to be made in the statements which are recorded before the orders and after the orders passed by the Customs officers and he has submitted that in the decision of the Supreme Court in the case of Assistant Collector of Central Excise, Madras v. V. Krishnamoorthy and others, reported in AIR 1997 SC 1904, a question has been left open as to whether the officers of the Customs department would be such an agency as is empowered to make investigation into offence under the provisions of Indian Customs Act within the meaning of sec.377(2) of the Code. He has also referred to the case of Krishna Swami v. Union of India and others, (1992) 4 SCC 605, paras 60 and 61 thereof. However, it was a case in relation to the Judges (Inquiry) Act, 1968 and it was in the context of Article 124(5) of the Constitution of India that the meaning of the word 'investigation' was considered by the Supreme Court and the Supreme Court held that the words 'investigation' and 'inquiry' used in Article 124(5), the Act and the Rules are interchangeable and do not take different colours from varied contexts, but connote the same theme to prove/ disprove misbehaviour or incapacity charged against the Judge beyond reasonable doubt. The investigation contemplated in Article 124(5) of the Constitution or investigation or inquiry envisaged in the Act are synonymous and interchangeable. However, we find that this case has no relevance to the question under consideration and so far as the present case is concerned we have to keep ourselves confined to the scope of the word 'investigation' by an agency authorised under the Act and for that purpose the interpretation which has been given with regard to the word 'investigation' as occurring under Article 124(5) of the Constitution cannot be applied.
12. On the analysis of various decisions to which reference has been made hereinabove it is very clear that:-
(A) The scheme of the Customs Act is to enforce the provisions of the Act so as to prevent evasion of customs duty and the machinery created under this Act is not the one for the purpose of investigation into crimes. It is only the side effect resulting from the enforcement of the Customs Act that the offences are detected. The machinery under the Customs Act is not, therefore, created for investigation of crime under the Central Act and it cannot be said that there is a separate machinery for the purpose of investigation of crimes bypassing the provisions of the Code.
(B) While the appeal against inadequacy of the sentence is contemplated under sec.377(2) it is at the instance of the State Govt. as it has investigated the case before filing charge sheet in the Court. However, in the cases where no investigation is undertaken by any agency authorised under the scheme of the Act itself, such as one under the Customs Act, there is no question of taking inquiries made by the officers of the Customs Department to be an investigation by an agency authorised under the Act so as to enable the Central Govt. to file an appeal for enhancement, because even if inquiry held by the officers of the Customs Department has moorings of the investigation it is not an investigation as such by an agency authorised under the provisions of the Act.
(C) That the inquiry which is made by the Customs Officer under the Act cannot be treated as an investigation conducted by an agency authorised under the Act so as to bring it at par with the investigation as is conducted by the police under the provisions of the Code. Lest the whole purpose of the provisions of the Act so as to make the statements of the suspected person or the party to be admissible in evidence would be frustrated.
(D) The question as to whether the officers of Customs Department constitute an agency for investigation as such or not is concerned, it has not been decided by the Supreme Court and the question has been left open, but there is ample judicial authority based on the decisions to which reference has been made in the earlier part of this order that though the function discharged by the officers of Customs Department have moorings of investigation or are in the nature of investigation, they cannot be placed at the same pedestal as that of investigation conducted by the Police for the purpose of filing charge sheet. In case, the inquiry made by the Customs officers is placed at par and on the same pedestal as that of the investigation under the Code, we are afraid, it would hit against the evidentiary value which is given to the statements or disclosures made by the persons who are suspected and booked for the offence under the Customs Act and it will be fatal to the cases in which offenders under the Act are prosecuted and the prosecution in such cases will be deprived of the advantage of evidentiary value of such statements to be permissible.
(E) In any case, even if it is held that the inquiry made by the Customs officers is in the nature of investigation, it cannot be said that it is a case of investigation by an agency empowered to make investigation into an offence under the Act as is the case with regard to the investigation undertaken by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. The entire scheme of the Customs Act shows that no such agency has been created or empowered under the Act to conduct investigation. It is to be noted that the legislature does not waste words and therefore, as and when words 'investigation' and 'inquiry' are used in the same provision under the same enactment as mentioned in sec. 4(2) of the Code, which deals with the all offences under any other law, other than Indian Penal Code, are to be investigated, inquired into, tried and otherwise dealt with, it cannot be said that investigation and inquiry are the words which are interchangeable.
(F) That so far as the inadequacy of the sentence is concerned the appeal cannot be held to be maintainable at the instance of the Central Government.
Sec.377(2) was amended in 1978 by the Act No. 45 and according to sec.29 of this amending Act a word 'also' was inserted in the language of sec.377(2) after the words, 'Central Government may'. With aid of this amendment also, the Central Govt. cannot file the appeal against the inadequacy of the sentence unless the conviction is based on an investigation conducted by an agency empowered to make investigation under any Central Act other than Code of Criminal Procedure.
13. Before us is a case in which appeal has been filed against inadequacy of the sentence and for enhancement of the sentence by and in the name of the Union of India and whereas we have come to the conclusion that such an appeal could not be filed at the instance of the Central Government, we find that the objection which has been taken through this application against the maintainability of the appeal has force and this objection which goes to the very maintainability of the appeal is sustained.
14. As a result, this application succeeds. The appeal is found to be not maintainable.
15. Shri Harbinder Singh, learned counsel for the applicant also submitted that maximum sentence prescribed for the offence for which the present applicant has been convicted is 7 years and the minimum sentence is 3 years. The Metropolitan Magistrate has sentenced him to 5 years. Therefore, the Court may also look into the question of adequacy of the sentence. However, Shri Asim Pandya, learned Additional Central Government Standing Counsel submitted that nothing be dealt with on the question of adequacy of the sentence. Even otherwise we feel that it is not necessary for us to go into the question as to whether the sentence is adequate or not because the appeal itself is not maintainable and deserves to be dismissed on the ground of maintainability. The prayers with regard to remand of Criminal Appeal No. 539 of 1999 to the Sessions Court by this Court appears to be wholly misconceived and is not required to be entertained and simply deserves to be rejected.
16. The upshot of the aforesaid discussion is that this Criminal Misc. Application succeeds and the same is allowed. Rule is made absolute. Consequently, Criminal Appeal No. 539 of 1999 is found to be not maintainable and the same is dismissed accordingly.
17. So far as Criminal Appeal No. 788 of 1999 is concerned, it is an appeal which was registered by this Court under Rule 337 of the Gujarat High Court Rules. Thus, it is an appeal converted from Appeal No. 42 of 1999 which was pending before the City and Sessions Court, Ahmedabad. This Appeal No. 42 of 1999 was pending before the the City Sessions Court, Ahmedabad at the stage of hearing and the record and proceedings of the same were called for only because this was an appeal against the conviction filed by the present applicant and Criminal Appeal No. 539 of 1999 was filed before this Court for enhancement of the sentence. The purpose was that the whole record must be available including the record of the appeal which has been filed against conviction and sentence. In this view of the matter, we find that the registration of this appeal in this Court under Rule 337 of the Gujarat High Court Rules, as Criminal Appeal No. 788 of 1999, simply deserves to be revoked and accordingly registration of the said appeal as Criminal Appeal No. 788 of 1999 shall be treated as cancelled as if the same was never registered. Criminal Appeal No. 42 of 1999 which was pending before the City Sessions Court, Ahmedabad shall be returned with all the papers available with this Court along with a copy of this order. The City Sessions Court at Ahmedabad will proceed with this Appeal in accordance with law from the stage at which the papers were summoned by this Court.