Vijay Kumar Verma, J. - (1.) HEARD Smt. Sandhya Agarwal, amicus curiae, appearing for respondents -accused. Nobody is present for the appellant even in the revised list.
(2.) THIS appeal under Section 378 of the Code of Criminal Procedure (in short 'the Cr. P.C.), has been preferred by Assistant Collector Customs & Central Excise Bareilly against the judgment and order dated 31 -3 -1979 passed by City Magistrate Bareilly in case No. 504 of 1974 (Assistant Collector Custom and Central Excise Bareilly v. Gopal Saran and Anr.), whereby the accused -respondents Gopal Saran and Madho Saran have been acquitted of the offences punishable under Section 135(B) Indian Custom Act and Section 85 Gold (Control) Act. After admission of the appeal, lower court record was summoned. In response to the letter sent by the office for sending lower court record, it has been reported by City Magistrate Bareilly vide his letter No. 48/Na.Ma. -2008, dated 18 -8 -2008 that the record of case No. 504 of 1974 has been weeded out on 8 -11 -1985. The Sessions Judge Bareilly was directed to get the record of the case reconstructed, but the record of aforesaid could not be reconstructed, as no paper of the case is available. Letter No. 309/09, Regd. -3 (A), dated 3 -10 -2009 of the CJM Bareilly shows that the City Magistrate has reported that no paper of the case is available in his office. The record of the appeal shows that certain letters were sent to the Central Excise Department Bareilly for making the papers of case No. 504 of 1974 available, but papers of the case has not been made available. Letter No. 1011/Na. Ma. -2009 dated 6 -7 -2009 of the City Magistrate Bareilly shows that Assistant Commissioner Central Excise Bareilly vide his letter No. 493 -V.(M)(18) Legal/Misc/14 dated 10 -6 -2009 has reported that the record of the case being very old is not traceable in the office. Since no paper has been made available by the Central Excise Department either to the City Magistrate Bareilly or to the Chief Judicial Magistrate Bareilly, hence the record of the case could not be reconstructed.
(3.) IT is submitted by the learned amicus curiae that in the absence of the lower court record, the appeal cannot be decided on merit and hence the appeal should be dismissed on this ground alone. It is also submitted that no illegality in the impugned judgment has been pointed out on behalf of appellant and hence on this ground also, the appeal deserves to be dismissed. Placing reliance of the case of State of U.P. v. Abhai Raj Singh and Anr. -, 2004 SCC (Cri.) 901, it is also submitted that interference by this Court in the impugned judgment of acquittal would not be justified, as due to non -availability of lower court record, the appeal cannot be decided on merit and after a gap of more than 30 years, re -trial of the accused persons can also not be made, as no paper is available even in the office to Central Excise Department Bareilly.;