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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.

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.