Document Fragment View

Matching Fragments

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;