Document Fragment View

Matching Fragments

18. Apart from the aforesaid arguments on the factual aspect of the case, the defence has taken a strong objection about the maintainability of the prosecution. It was contended on behalf of the defence that the prosecution has failed to prove the sanction as required under Sec. 137(1) of the Customs Act. In this case admittedly at the time of filing the complaint, the complainant has stated in para 1 as under -

"The Additional Collector of Customs, J. H. Joglekar has sanctioned the prosecution of the accused abovenamed for offences under Section 135 of the Customs Act, 1962. Hereto annexed and marked Exhibit 'A' is a true copy of the said sanction."

19. From the aforesaid complaint, it is clear that while filing the said complaint before the trial Court, the complaint was accompanied by a true copy of the sanction. That means the original Sanction order was not produced in the trial Court. Further excepting producing true copy of the original order of sanction, none of the five prosecution witnesses, who are Customs Officers examined on behalf of the prosecution even referred to the said sanction. The trial Court, therefore, according to me, had no alternative but to come to a conclusion that the prosecution has failed to prove the sanction as required under Section 137 of the Customs Act and, therefore, the whole prosecution proceedings are bad in law. It is pertinent to note that in spite of the fact that the trial Court has given the positive finding about the sanction in Para 32 of its Judgment even before this Court, while arguing the appeal against acquittal, Shri Gupte, learned Counsel on behalf of the appellant, failed even to refer to the said point.

Monday, 2nd December 1991.

21. Section 137(1) of the Customs Act is as under :-

"137(1) No court shall take cognizance of any offence under section 132, section 133, section 134 or section 135, except with the previous sanction of the Collector of Customs."

22. In the present case it is the case of the prosecution that the accused persons are guilty under Section 135(1)(a), 135(1)(b) and 135(1)(i) of the Customs Act. Therefore, for the Court to take the cognizance of the matter of the case filed against the accused, it is incumbent upon the Customs authorities to obtain the sanction under Section 137(1) of the Customs Act, so as to enable the Court to take cognizance of the matter. With the result, the prosecution of the accused persons under Sec. 135 of the Customs Act without obtaining prior sanction under Section 137(1) of the Customs Act will be without jurisdiction. In order to support their contention, the defence has cited decisions in various cases given by the Supreme Court and High Courts including this High Court.

After going through the aforesaid Section 6(1) of the Prevention of Corruption Act, it is clear that the said section is same mutatis mutandis as Section 137(1) of the Customs Act. Therefore, the observations of the Supreme Court made while interpreting Sec. 6 of the Prevention of Corruption Act will also be equally applicable to obtaining sanction or not obtaining sanction under Sec. 137(1) of the Customs Act. In the aforesaid decision the Supreme Court held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same. The grant of sanction, according to the Supreme Court, is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. In the said decision, the Supreme Court has also made certain observations which are important in the light of certain arguments advanced by Shri Gupte, learned Counsel appearing on behalf of the appellant. In the said decision, the Supreme Court further observed that the prosecution cannot be given a chance to produce the materials in the appeal before the Supreme Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence. The Supreme Court has further observed that in a criminal case the Supreme Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution.