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Bombay High CourtIndian Cases

Asstt. Collector Of Cus. R And I (P) vs Hussain Abbas Shaikh And Others on 2 December 1991

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Bombay High Court
Asstt. Collector Of Cus., R And I (P) vs Hussain Abbas Shaikh And Others on 2 December, 1991
Equivalent citations: 1992(59)ELT394(BOM)
JUDGMENT
1. This appeal is filed by the Assistant Collector of Customs, R & I (P) Bombay-original Complainant, against the Judgment and order dated 11th March 1983 passed by the learned Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay in Criminal Case No. 113/CW/1982.

2. By the aforesaid Judgment and order the trial Court acquitted respondents Nos. 1 and 2 under Section 135(1)(a) and Section 135(1)(b) both read with Section 135(1)(i) of the Customs Act and Section 5 of the Imports and Exports (Control) Act.

3. Few facts which are necessary for deciding this appeal are as under :-

Respondent No. 1 in this case was, at the relevant time, when the incident took place, a Head Constable Writer and respondent No. 2 was a Sub-Inspector. The incident as alleged by the prosecution took place on 2nd September 1980. At the relevant time both accused Nos. 1 and 2 were attached to Immigration Department and were posted at Santacruz Air-Port. On the said date early morning Intelligence Officers Kohak, P.W. 1 and Debrai, P.W. 4, were proceeding from Santacruz Air Port to Sahar Air Port. They saw accused No. 2 driving a scooter from Santacruz Air Port to N.I.P.T. building at Sahar Air Port. Accused No. 1 was sitting on the pillion of the scooter of accused No. 2. Accused No. 1 was carrying a black colour brief case which he was holding and which was kept on his legs while the scooter was being driven. Due to suspicion both Kohak and Debrai followed accused Nos. 1 and 2 on their scooter. Near Sahar Air Port near the bus stop they intercepted both the accused persons. At that time, it is the case of the prosecution that they made the enquiry about the contents of the brief case, to which, according to the prosecution, accused No. 2 replied “ARE JANE DO, ISME LAFDAKA MAL HAI”. At this stage I may point out that though P.W. 4 in his deposition referred to the aforesaid utterances by accused No. 2, P.W. 1 Kohak in his deposition stated that accused No. 2 replied “JANE DO, KAI KO LAFDA KARTA HAI”. It was further alleged by the prosecution that thereafter both the accused and Kohak, P.W. 1 and Debrai, P.W. 4 came back to Santacruz Air Port. After reaching Santacruz Air Port panchas were called and in the presence of the panchas the aforesaid brief case carried by accused No. 1 was opened. After opening the aforesaid brief case, four saris and 601 ‘RICOH’ make wrist watches without straps, all imported, valued at Rs. 1,20,998/- at local market value were found in the said bag. Thereafter panchanama was drawn which is at Exh. P-1 and the same was signed by the panchas. Thereafter on the same day accused No. 1’s statement under Section 108 of the Customs Act was recorded. The said statement in Exh. P-2.
4. In the first para of the said statement, Exh. P-2, accused No. 1 stated that when he came on duty on the date of the incident at 4.30 a.m. flight of Gulf Air arrived from Dubai at about 5 a.m. Accused No. 2 was also on duty. One passenger named Abdulla came to the Immigration counter attended to by accused No. 2. Abdulla was checked and was given O.K. by accused No. 2. The said Abdulla handed over one black echolac brief case to accused No. 1 and thereafter the said Abdulla proceeded to Customs enclosure for getting the baggage checked. Thereafter accused No. 1 requested accused No. 2 to leave him outside the Air Port area as he intended to hand over the bag to Abdulla. Accused No. 1 specifically stated in his statement that he did not tell accused No. 2 about the contents of the brief case and he also did not know the contents of the brief case. 15-20 minutes after the said request, accused No. 2 agreed to leave accused No. 1 outside the Airport area on his scooter. From arrival side of Santacruz Airport accused No. 1 proceeded towards Sahar Airport by occupying the pillion seat.

5. After giving the aforesaid details in the statement under Section 108, in the next para of the said statement accused No. 1 further stated that he knew that the brief case handed over to him by Abdulla contained wrist watches. He further stated that he met Abdulla about a week back at Sahar Airport when he was attending his duties. Abdulla informed him that he was going to Dubai in a day or two and will be returning back to Bombay Airport from Dubai on 2nd September 1980 by Gulf Air flight arriving at 4.30 a.m. He further stated that the said Abdulla also informed him that the said Abdulla will hand over a brief case containing wrist watches to accused No. 1 in the Immigration enclosure and accused No. 1 was to hand over the said brief case near Centaur Hotel to the said Abdulla. Accused No. 1 was promised to get about 50% of the value of the wrist watches. Accused No. 1 came on duty on 2nd September 1980 at 4.30 a.m. and at that time he appraised accused No. 2 about the job of taking out the brief case containing wrist watches for delivering to Abdulla. When the Gulf Air flight arrived and the passengers started coming to the Immigration counter, Abdulla came to accused No. 2’s counter. The disembarkation card of Abdulla was checked and okayed by accused No. 2 and in the presence of accused No. 2 black echolac brief case was handed over by Abdulla to accused No. 1. Thereafter accused No. 1 requested accused No. 2 to help him in taking the brief case out of the Airport on scooter and also assured him that for doing this work accused No. 2 was to be paid handsomely. Thereafter accused No. 1 proceeded towards Sahar at 5.45 a.m. When they were near the gate at I.P.T. Sahar, they were stopped by two persons who were following them on scooter. Thereafter they followed those two persons to the Air Intelligence officer at Santacruz Airport in the Customs arrival enclosure hall. He further stated that the persons who stopped them were Customs Officers out of whom he knew one Debrai.

6. In short, in the latter portion of the statement of accused No. 1 under Sec. 108 of the Customs Act he has mentioned that accused No. 2 had the knowledge about the contents of the bag. If one goes through the aforesaid statement, the first part of the statement clearly shows that accused No. 2 had no knowledge. However, in the subsequent part of the statement suddenly accused No. 1 makes the statement that accused No. 2 had the knowledge about the contents of the brief case.

7. Thereafter on 4th September 1980 accused No. 1 addressed one letter to the Collector of Customs, New Customs House at Bombay and the copy of the said letter was sent to the Chief Metropolitan Magistrate, 7th Court, Bombay, and the second copy to the Superintendent of Arthur Road Jail, Bombay. The aforesaid letter addressed by accused No. 1 was signed before the jail authorities. In the said letter in para 2 accused No. 1 stated that while he was on duty at 6.30 to 7-00 a.m. accused No. 2 was seeking permission from Inspector Soloman for going to the Sahar Airport. After hearing the said talk accused No. 1 requested accused No. 2 for a lift upto Sahar Airport on his scooter. While proceeding to Sahar Airport on scooter accused No. 1 carried the brief case which was given to him by Abdulla. Accused No. 1 was sitting on the scooter belonging to and driven by accused No. 2. At the time they were approaching the Sahar canteen outside the Airport, accused No. 2 heard horn of the scooter and, therefore, turned back. At that time accused No. 2 saw two Customs Officers known to him. After seeing the aforesaid two Customs Officers, accused No. 2 stopped his scooter. The said Customs Officers thereafter asked about the contents of the brief case to accused No. 2. Accused No. 2 replied that the brief case did not belong to him and he did not know the contents of the said brief case. Thereafter both the officers also put the same question to accused No. 1 but accused No. 1 did not reply the said question. Both the officers therefore, called upon accused Nos. 1 and 2 to come to Santacruz Airport. According to this letter, it was only on the arrival at the Customs Hall at the Arrival side of the Airport he came to know the contents of the brief case. In this letter he specifically stated that accused No. 2 was totally unaware of the fact about the contents of the brief case and accused No. 2 was an innocent about the whole transaction.

8. In the last para of the said letter, accused No. 1 had also stated that the earlier statement which he has given under Sec. 108 dated 2nd September 1980, Exh. P-2 was given by him under the threat of assault. If one goes through the aforesaid letter, it is clear that accused No. 2 has retracted from the statement which he has given earlier on 2nd September 1980.

9. In the particular case accused No. 1 also got himself examined under Sec. 315 of the Criminal Procedure Code. In the said statement accused No. 1 stated that on the date of the incident when he went out of the Immigration Hall he noticed accused No. 2 starting his scooter. He, therefore, asked accused No. 2 as to where he was going. Accused No. 2 replied that he was going towards Sahar Airport. Accused No. 1, therefore, asked accused No. 2 to give him a lift on his scooter to Sahar Airport. According to the deposition of accused No. 1, at that time accused No. 2 was carrying a brief case which he had placed in between the seats of accused No. 1 and accused No. 2 and he asked accused No. 1 to hold it. When they were proceeding towards Sahar, accused No. 1 expressed his desire to accused No. 2 that he intended to take tea and, therefore, asked accused No. 2 to drop him near the hotel at the bus stop. When the scooter came near the said hotel, P.W. 1 and P.W. 4 came on their scooter. These Customs Officers had a talk with accused No. 2 but they did not ask any question to accused No. 1. Thereafter all of them came to Santacruz Airport. In the aforesaid statement in the Court, accused No. 1 has also stated that the echolac bag produced by the prosecution is not the same which he was holding by sitting on the pillion seat of the scooter. In the said statement he has also stated that the letter addressed by him on 4th September 1980, Exh. D-6 is written by him because of pressure of accused No. 2 as in the jail both accused Nos. 1 and 2 were staying in the same cell.

10. According to the prosecution, after taking into consideration the aforesaid statements of accused No. 1 both the accused are guilty of the offences for which they are charged.

11. Apart from the aforesaid evidence, the prosecution has also examined P.W. 1 Arun Kohak, and P.W. 4 Moham Debrai, both these persons who intervened accused Nos. 1 and 2 at Sahar Airport (on scooter), P.W. 2 Sadashiv Kulkarni, Superintendent of Customs who recorded the statement of accused No. 1 on 2nd September 1980, Exh. P-2 and Exh. P-2A, P.W. 3 Gulab Makhijani, who is also Superintendent of Customs who recorded statement of accused No. 2, P.W. 5 Govind Deshpande, who is also Superintendent of Customs, who recorded the statement of accused No. 2, and P.W. 7 Shankarlal Parmar, who is the panch of the recovery of property which is at Exh. P-1. The prosecution relied upon the aforesaid evidence as mentioned above for proving the case against accused Nos. 1 and 2 for which they were charged.

12. After going through the aforesaid evidence, the trial Court, by its Judgment, acquitted both the accused persons in respect of the charges levelled against them. While acquitting the accused persons the trial Court was of the opinion that the main eye-witnesses to the incident P.W. 1 Kohak and Debrai P.W. 4 are not trustworthy witnesses, as there is lot of inconsistency inherent in their own statement and further both these witnesses contradicted each other on major part of the incident. Further it is the case of both the accused persons that earlier to this incident, because of a particular event the relations of accused No. 2 were strained with P.W. 1 and P.W. 4. It is the case of the defence that one lady Police Officer Smt. Borjea working at the Airport made a complaint to accused No. 2 her friend that both P.W. 1 and P.W. 4 were misbehaving with her and, therefore, accused No. 2 fired both of them. Because of this incident the relations between P.W. 1 and P.W. 4 on one hand and accused No. 2 on the other hand got strained. The aforesaid suggestion made by accused No. 2 in his cross-examination and also in his examination under Sec. 313 of the Criminal Procedure Code is also supported to some extent by the evidence of P.W. 6 Inspector Soloman.

13. Further the trial Court also held that the panch witness has made lot of inconsistent statements and his deposition is also inconsistent with the deposition of the other prosecution witnesses. The trial Court also discarded the evidence led by the prosecution by producing statement under Sec. 108 given by accused No. 1, by coming to the conclusion that the aforesaid testimony is not trustworthy. After scanning each and every piece of evidence led by the prosecution, the trial Court came to the conclusion on facts that the prosecution failed to prove the case against the accused.

14. The trial Court also came to the conclusion that the prosecution failed to prove sanction and, therefore, on that count also the prosecution is liable to fail under Section 137(1) of the Customs Act.

15. Against the aforesaid Judgment and order, the original complainant has preferred this appeal against the acquittal.

16. Shri Gupte, learned Counsel on behalf of the appellant, has taken me through all the evidence as led by the prosecution and submitted that on the basis of the evidence as led by the prosecution, the trial Court ought to have convicted the accused persons. He further, contended that the inconsistencies in the evidence of the prosecution are on minor particulars and, therefore, the trial Court erred in acquitting both the accused.

17. As against this, Shri Menon, learned Counsel appearing on behalf of accused No. 2 and Shri Parkar, learned Counsel appearing on behalf of accused No. 1, pointed out various inconsistencies as referred to by the trial Court in its Judgment, more particularly in paras 7 to 10 of the Judgment, which clearly show that the statements made by both P.W. 1 and P.W. 4 are irreconcilable. Further they have pointed out that the trial Court has also properly scanned the evidence of P.W. 7, the panch witness which is at para 11. According to the defence, this is an appeal against acquittal and the decision of the acquittal given by the trial Court should not be interfered with lightly even if two views of the matter are possible. Shri Gupte, learned Counsel for the appellant, has not pointed out that the trial Court’s observations are unreasonable or perverse or they are palpably shaky. On the contrary, according to the defence, the trial Court has given the cogent reasons for acquitting both the accused persons.

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.

20. It was only when the defence pointed out the point of sanction and submitted that since the prosecution has failed to produce the sanction in the trial Court, the whole trial is vitiated, for the first time attempt was made on behalf of the appellant to refer to this point as agitated by the defence. In order to understand the rival contentions of both the parties, first we must refer to the provisions of Section 137(1) of the Customs Act and thereafter discuss the said issue in the light of various Judgments decided by the High Courts and the Supreme Court on this 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.

23. It was contended by Shri Menon, learned Counsel for respondent No. 2, that this is a case where in fact the prosecution has not produced the sanction at all, because as already pointed out earlier, the complaint filed by the complainant in the first para refers to the true copy of the sanction and since the prosecution failed to produce the original order of the sanction, the prosecution is bound to fail on this count alone.

24. Alternatively, it is also argued by Shri Menon, learned Counsel for respondent No. 2, that in the present case the prosecution even failed to prove even the true copy produced by them as, though in fact five witnesses were examined from the Department by the prosecution, not a single witness is asked to identify the signature. This being the position, according to Shri Menon, on this count also the prosecution is liable to fail, as there is no sanction produced by the prosecution as required under Sec. 137(1) of the Customs Act.

25. In order to support this proposition, Shri Menon relied on the decision in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, . The aforesaid case is under Prevention of Corruption Act. Section 6(1) of the Prevention of Corruption Act, 1947 is as under :-

“6(1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3A) of section of this Act, alleged to have been committed by a public servant, except with the previous sanction.”
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.

26. Shri Gupte, learned Counsel for the appellant, after the aforesaid authority was cited, at the fag-end of the arguments, filed application under Section 391 of the Criminal Procedure Code for permitting the appellant to prove the sanction by additional evidence in this Court or by referring the matter to the lower Court. It was contended on behalf of the appellant that the sanction was accorded by Shri J. H. Joglekar, the then Additional Collector of Customs for initiating the prosecution, which was produced along with the complaint. The learned Counsel Shri Gupte, therefore, filed this application on behalf of the appellant to formally prove the said sanction. After going through the observations made by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, , supra, this Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. According to me; this is the case where this lacunic position is deliberately left by the prosecution not only before the trial Court but also before this High Court. As already pointed out above, in the complaint filed before the trial Court the prosecution has referred to the true copy of the sanction annexed to the complaint. Nowhere the said complaint mentions that this is the original copy. According to Shri Gupte’s argument, what was annexed with the complaint was the original copy. However, in the light of whatever has been stated in the complaint, it is doubtful whether as argued by Shri Gupte, what was filed along with the complaint was the original copy and not the true copy. I have already pointed out that at the fag-end of the arguments Shri Gupte made this application and his application was made by Shri Gupte first orally after the arguments on behalf of the accused. Thereafter Shri Gupte filed the said application in Court, wherein he made the aforesaid statement that the original of the sanction was filed along with the complaint. It is pertinent to note that Shri Gupte was not prosecuting this matter in the trial Court. This application, though filed in the Court at the last stage, nobody from the Customs has verified it. It shows the casual approach of the Customs Authorities and Shri Gupte, learned Counsel for the appellant, in such an important matter.

27. Further as decided by the Supreme Court as aforesaid, it must be clear either from the original documents or by evidence led by the prosecution that the Court must be satisfied that the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and had applied its mind for the same. In the present case, as already pointed out above, the prosecution has filed only the true copy of the order of sanction and none of the five witnesses from the Customs examined by the prosecution even referred to the order of the sanction. In the light of these circumstances, as observed by the Supreme Court, the prosecution is liable to fail on the ground of sanction alone.

28. I may further mention here that the application made by Shri Gupte at the fag-end of the arguments in the present appeal is also not maintainable as it is beyond the scope of the appeal which the appellant has preferred. Ground (n) of the memo is as under :-

“(n) The lower court has erred in holding that the sanction for prosecution has not been proved. The sanction is required for taking cognizance of the offence and was attached to the complaint on the basis of which the Chief Metropolitan Magistrate, Bombay, before whom the same was filed, took cognizance and issued process. In the circumstances, the failure to formally prove the same cannot be said to be fatal to the prosecution. Besides, none of the accused had raised any such point or objection to the prosecution being without any valid sanction. It is only the learned Magistrate who noticed the absence of formal proof and as such ought to have brought it to the notice of the Counsel or examined a court witness instead of bringing about the technical lapse for the first time in the judgment.”
29. In the aforesaid ground what has been mentioned is that failure to formally prove the sanction cannot be fatal to the prosecution, which is completely in contradiction to what has been observed by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, , supra. Further in the said ground it has been stated that the accused have not objected the aforesaid ground. Shri Menon, learned Counsel on behalf of respondent No. 2, contended that in fact objection on the basis of sanction was argued but since from the evidence the case of the accused being of clear acquittal, he wanted observations from the Court on the facts so that the same observations of the Court would come to his help in the departmental proceedings. Shri Menon was also appearing on behalf of the accused during the course of trial. Surprisingly it is mentioned in the said ground that the failure on the part of the appellant to formally prove the sanction cannot be said to be fatal to the prosecution. From the said contention in the appeal memo itself it is clear that even at the stage of High Court, there was no intention on the part of the appellant to produce sanction. On the contrary, according to the appellant, even at the time of the arguments, the argument was that the sanction is just a formality and, therefore, failure on the part of the appellant to prove the sanction is not fatal to the prosecution. I am surprised to hear such type of argument. However, it is suffice to say that all these arguments are contrary to the observations of the Supreme Court.

30. Shri Menon also relied on the other authority of the Supreme Court in Padmakar Balkrishna Samant v. Abdul Rehman Antulay and Another, (1984) 2 S.C.C. 184. In paras 19 and 20 of the said decision the Supreme Court held that the existence of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant. The bar is to the taking of cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. The Supreme Court in this case was dealing with Section 6 of the Prevention of Corruption Act.

31. Shri Menon has also relied on one more case decided by Orissa High Court, Doki Sriramulu v. Assistant Collector of Central Excise and Customs and Anr., 1988 (36) E.L.T. 247 (Ori.) = 1988 Excise and Customs Cases, 110. In this particular case the Collector of Central Excise and Customs produced the sanction order and the same was exhibited. However, the same was not proved when P.W. 1 Assistant Collector was in witness box. The Orissa High Court held that the said sanction produced without proving the signature was invalid sanction and, therefore, set aside the conviction under Section 85 of the Gold (Control) Act.

32. Shri Parkar, learned Counsel for respondent No. 1, also fully supported the arguments of Shri Menon and further relied on one more authority, Ram Kumar v. State of Haryana, . Here in this case the sanction to prosecute the accused was given by the State under Section 132 of the Criminal Procedure Code and was proved. However, there was no sanction under Section 197 of the Criminal Procedure Code. The High Court, however, took the view that inasmuch as the State Government itself had accorded sanction to ‘prosecute’ the appellant in the case, in exercise of powers under Section 132, there was no need for sanction under Section 197 of the Criminal Procedure Code, the reason being both the sanctions are to be given by the State Government in respect of the same person and on the same allegations, and, therefore, according to the High Court, the sanction under the provisions of Section 132 can be treated as a sanction under the other provisions of Section 197(3) of the Criminal Procedure Code. However, the Supreme Court set aside the High Court’s decision on the ground that the High Court has overlooked the scope, purpose and character of sanction under Section 132 of the Criminal Procedure Code on the one hand and Section 197 of the Criminal Procedure Code on the other. The observations made by the Supreme Court in the aforesaid case are also to the effect that when sanction is required under Section 197 for taking cognizance by the Court, then failure to prove the sanction is fatal to the prosecution.

33. In the light of the aforesaid observations and in the light of the aforesaid discussions on the point of sanction, in the present case since the appellant failed to produce the sanction as required under Section 137(1) of the Customs Act and failed to produce any evidence to that effect, the prosecution against the accused persons must fail and, therefore, for the reasons given as above, I confirm the decision of the trial Court on that point.

34. I have already discussed the evidence in the light of the observations made by the trial Court and I am of the opinion that there is no evidence to come to a conclusion that accused No. 2 had any knowledge about the contents of the bag. Further as argued by the defence, the trial Court has given reasons for the acquittal and there is nothing in the arguments on behalf of the appellant to show that the said reasoning given by the trial Court for acquittal is unreasonable much less perverse. It cannot be said that this is the rate and exceptional case or a case where the observations are palpably and erringly shaky and, therefore, requires interference from this Court in appeal against acquittal.

35. I, therefore, confirm the decision of the trial Court and dismiss this appeal.

36. Certified copies to be supplied to the parties immediately.