Orissa High Court
Doki Sriramulu vs Assistant Collector Of Central Excise ... on 13 May, 1986
Equivalent citations: 1988(15)ECC110, 1988(36)ELT247(ORI), 1986(I)OLR671
JUDGMENT G.B. Pattnaik, J.
1. The petitioner has been convicted under Section 135 of the Customs Act and has been sentenced to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for a period of three months. He has also been convicted under Section 85 of the Gold Control Act and has been sentenced thereunder to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months. This conviction and sentence of the petitioner passed by the Chief Judicial Magistrate, Berhampur, has been affirmed in appeal by the learned Additional Sessions Judge, Ganjam, and hence, the present revision.
2. Before the learned Magistrate, petitioner was charged under Section 135 of the Customs Act, Section 23(1) of the Foreign Exchange Regulation Act and Section 85 of the Gold Control Act. whereas his co-accused, Doki Janardan Swamy was charged under Sections 87 and 88 of the Gold Control Act. The learned Magistrate, however, acquitted accused Janardan of both the charges levelled against him and acquitted the petitioner of the charge under Section 23(1) of the Foreign Exchange Regulation Act.
3. According to the prosecution case, accused Janardan Swamy (since acquitted) is a licensed gold dealer. His premises were searched on 19.4.1975 by the staff of the Central Excise Department but when P. W. 1, the Superintendent of Central Excise, asked the inmates of the house to open the door, the door was not opened. At that point of time, it was noticed that the petitioner was going towards the terrace with a bag in his hand. P. Ws. 2 and 3, therefore, climbed up terrace and caughthold of the petitioner with the bag in his hand. P. W. 2 the Inspector of Custom; brought two persons to witness the seizure and In their presence the bag of the petitioner being searched, one foreign gold biscuit; 81 pieces of primary gold and some gold ornament were seized. The statements of the accused were taken and after obtaining sanction from the competent authority as per Ext. 5, prosecution report was submitted against the accused persons.
4. The defence is one of denial and the further defence is that they have been falsely implicated. According to the defence version, the gold ornaments alleged to have been found by the prosecution from the house of the accused are the ornaments belonging to the family members as well as some pledged ornaments belonging to a friend of accused Janardan.
5. In support of the prosecution case, three witnesses were examined of whom P. W. 1 is the Superintendent of Central Excise and P. Ws. 2 and 3 are the two Inspectors of Central Excise The two Courts below accepting the evidence of P. Ws. 1 to 3 have been to the conclusion that primary gold and a foreign gold biscuit have been recovered from the possession of the petitioner from inside the bag in his hand and therefore; petitioner has committed the offence under Section 85 of the Cold Control Act as well as under Section 135 of the Customs Act. On the question of the validity of the sanction order, the Courts below have also come to the conclusion that the sanction accorded as per Ext. 5 is valid and consequently both the Courts below have convicted the petitioner.
6. Mr. Mohanty, the learned counsel for the petitioners raises several contentions challenging the conviction of the petitioner. According to him, no Court can take cognisance of an offence under Section 135 of the Customs Act except with the previous sanction of the Collector of Customs and it is for the prosecution to establish that the facts constituting the offence have been considered by the authority before sanctioning prosecution. Neither Ext. 5 satisfies the aforesaid tests nor the prosecution has led any evidence aniunde to prove that the sanctioning authority has applied his mind to the materials produced before him and consequently there is no sanction in the eye of law within the meaning of Section 137 of the Customs Act. The learned counsel further contends that to attract the provision of Section 135(1)(b) of the Customs Act, it must be established that the goods in question are liable to confiscation under Section 111 of the said Act. In other words, any one of the clauses of Section 111 must be attracted, so that the offence under Section 135 can be said to have been committed. But in the facts and circumstances of the present case, the prosecution has failed to establish as to whether any one of the clauses in Section 111 of the Customs Act applies and consequently the conviction under Section 135 of the Customs Act cannot be sustained. Mr. Mohanty, the learned counsel further submits that so far as the conviction under Section 85 of the Cold Control Act is concerned, it also suffers from similar vice, namely, Section 97(1) of the Gold Control Act has not been complied with. According to the learned counsel there is no complaint in writing by the Gold Control Officer nor is there any authorisation by him in that behalf and, therefore, no Court could have taken cognisance of the offence in question. He further submits that 'gold' has been defined in Section 3(j) of the Cold Control Act and 'primary gold' has been defined in Section 3(r) of the said Act but there is total absence of prosecution evidence from which it can be said that what was alleged to have been seized from the accused is actually the 'gold' as defined in Section 3(j) of the Gold Control Act. Mr. Mohanty, the learned counsel . for the petitioner, also contends that there has been no seizure in accordance with law since not a single independent witness was asked to be a seizure witness though according to the prosecution there were large number of people available at the spot at the time the alleged seizure was made. In that view of the matter, the so-called seizure of the gold in question from the possession of the petitioner must be viewed with suspicion. All these contentions require careful examination.
7. I would examine the question of validity of sanction first. Under Section 137 of the Customs Act, no Court can take cognisance of any offence punishable under Section 132, 133, 134 or 135 except with the previous sanction of the Collector of Customs. It is too well-known that the sanction contemplated under the aforesaid provisions is not an empty formality and prosecution must establish that the facts constituting the offence have bean considered by the authority before sanctioning prosecution. Further a sanction which itself exhibits non-application of and is vitiated in the eye of law. The prosecution pressed into service Ext. 5 in this respect. Ext. 5 purports to be an order of the Collector, Central Excise, in exercise of this powers under Section 137(1) of the Customs Act On the fact of it, the order does not sanction prosecution under Section 135 of the Customs Act, for which the petitioner has been convicted. On the other hand, in a vague manner, it has authorised the Assistant Collector to make a complaint in writing for offence under the Customs Act. That obviously cannot be held to be a compliance of Section 137 of the Customs Act. That apart, it does not indicate as to what were the materials which were produced before him on perusal of which he was satisfied as to the necessity of sanctioning the prosecution. Of course, even if the sanction order itself does not indicate the materials which wore examined by the sanctioning authority, it is open to the prosecution to lead evidence aliunde to establish the facts which constituted the offence and the materials which were considered by the sanctioning authority. But here, unfortunately, the sanctioning authority, namely, the Collector, has not been examined.
P. W. 1, who is the Superintendent of Central Excise, has purported to have proved the sanction tinder Ext. 5 and according to his evidence, the Assistant Collector, Central Excise, obtained the sanction from the Collector. Even the said Assistant Collector has not been examined to indicate as to what were the materials which were produced by him before the Collector on the basis of which he accorded the sanction in question. Thus, neither the sanction order itself discuses nor is there any evidence on record to indicate the materials which were produced before the sanctioning authority and were considered by him and in my view, therefore, the said sanction does not conform to the requirements of law and hence cannot be held to be a valid sanction in the eye of law.
As has been said by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh. A. I. R. 1979 S. C. 677, the grant of sanction is not an idle formality or an acrimonious, exercise, but a solemn and sacresanct act which affords protection against frivolous prosecution and must, therefore, be strictly complied with before any prosecution can be launched. Of course, the aforesaid observation of the Supreme Court was in relation to a sanction as required under the provisions of the Prevention of Corruption Act, but those principles would equally apply to a case of sanction as required under the provisions of the Customs Act, the object of according sanction being the same. Similar is the view expressed in the case of Saddruddin Khushal v. The Asst. Collector of Customs and Central Excise, Goa and another, 1979 Cri. L. J., 1265.
Applying the aforesaid tests to Ext. 5 and the evidence of P. W. 1 who has proved Ext. 5, I have no doubt in my mind that there is no valid sanction for prosecuting the petitioner under Section 135 of the Customs Act and accordingly Section 137 of the said Act prohibited taking cognisance of the offence. Consequently, the conviction of the petitioner under Sec 135 of the Customs Act cannot be sustained.
8. Coming to the question of "complaint in writing" for the offence under Section 85 of the Cold Control Act, I find that Section 97 of the Gold Control Act provides that no Court shall take cognisance of any offence against this Act except on a complaint in writing made by a Cold Control Officer, not below the rank of a Collector of Central Excise or of Customs having jurisdiction over the area in which the offence is committed or any person authorised by him in writing in this behalf. Here admittedly, the Collector of Central Excise, Calcutta and Orissa, has not lodged the complaint in writing and, therefore, the only- question which remains to be considered is whether the Collector authorised any other person, in writing, to file the complaint. According to the prosecution under Ext. 5, the Collector authorised the Assistant Collector to file the complaint in pursuance of which the Assistant Collector has filed the complaint which is Ext. 6. It is rather unfortunate to note that Ext. 5 has not been legally proved, Though P. W. 1 says in evidence that the Assistant Collector obtained sanction from the Collector for prosecution as per sanction order (Ext. 5), but does not even prove the signature of the Collector nor does he say that the Collector passed the order under Ext. 5 with whose handwriting he is acquainted Ext. 5 is a typed piece of letter and without proving the signature of the Collector, the order under Ext. 5 cannot be said to have been legally proved. Therefore, that part of the prosecution case that the Assistant Collector was authorised, in writing, to file the complaint as required under Section 97 of the Gold Control Act, has not been legally established and consequently, Ext. 6, the complaint filed by the Assistant Collector which sets the law into motion cannot be said to be valid. In view of invalidity of Ext. 6, the conviction of the petitioner for the offence under Section 85 of the Cold Control Act cannot be sustained.
9. That apart, as to what has been seized from the petitioner, whether gold, brass or any alloy, that must be established by the prosecution But a perusal of all the materials on record clearly establishes that the prosecution has not taken any steps in that regard. To attract the offence under Section 85 of the Gold Control Act, it must be established as to the possession of any primary gold by the accused in contravention of the provisions of the Act or the Rules made thereunder. Necessarily, therefore, it must first be established that what was recovered from the possession of the accused is a gold as defined in Section 3(j) and then the primary gold, as defined in Section 3(r) of the Gold Control Act. If this Is not established then, the provisions of Section 85 of the Gold Control Act cannot be said to have been attracted. In this view of the matter, the conviction of the petitioner under Section 85 of the Cold Control Act also cannot be sustained.
10. It is not necessary for me to examine the other contentions raised by the learned counsel for the petitioner in view of my aforementioned conclusions, though I also find substantial force in the contention of the learned counsel for the petitioner with regard to the alleged seizure. As it appears from the evidence on record particularly from the evidence of P. W. 1 at the time of raid about one hundred people had gathered and, therefore, witnesses were procured from the spot itself without any lapse of time. In the seizure list (Ext.7), two persons (Raghunath Sahu and another) have signed as witnesses to the seizure, but unfortunately, none of them has been examined by the prosecution. Without, therefore, coming to the conclusion that the seizure is illegal on this score, there cannot be any doubt that the seizure in question must be viewed with suspicion, but I am not examining this contention in detail since I have already held that the conviction cannot be sustained on account of the invalidity of the sanction as discussed earlier.
11. In the ultimate result, therefore, the convictions of the petitioner both under Section 135 of the Customs Act and under Section 85 of the Gold Control Act as well as the sentences passed thereunder are hereby set aside and this Criminal Revision is allowed.