Decided on December 16,1969

BABULAL Respondents

Referred Judgements :-



- (1.)This appeal by the State is directed against the acquittal of the respondent herein of offences punishable under Section 135 of the Customs Act and Rule, 126-P (2) of the Defence of India Rules, 1962, by the Judicial First Class Magistrate, Gooty.
(2.)The case against the accused (respondent) as revealed by the evidence adduced for the prosecution is as follows: At about 8 P.M., n 16-3-67 the Superintendent of Customs and Central Excise (P. W. 1) found the accused seated in a third class compartment of the Guntur bound train at the Guntakal Railway Station and having suspected that he was in possession of contraband gold. took him to the office of the Ticket Collector longings. The search of his attached-case ins the presence of mediators revealed that he was carrying with him concealed within that box. 1043-200 grams of primary gold and gold ornaments including three pieces (Mos 6 to 8) of gold with foreign markings. P. W. 1 seized the same under a mahazar. On being questioned by him the next day, the accused made a statement, Ex. P-9, admitting having had gold in his possession and this statement was attested by P. W. 2. The Collector Customs and Central Excise, to whom the matter was reported by P. W. 1 adjudged the confiscation of the entire gold seized from the accused to the Government and also imposed a fine of Rs. 7,000.00. Ex. P-2 dated 23-9-1967 is a copy of the adjudication order. The Mint Master, to whom samples of the gold seized from the accused were sent for being tested, assayed the same and sent his report. Ex. P-7 to the effect that the samples are of gold and were for foreign origin. After necessary sanction to prosecute the accused was accorded by the Collector. Customs and Central Excise. Hyderabad, the Asst. Collector of Customs s and Central Excise Hyderabad the Asst. Collector of Customs and Central Excise . Ananthapur, laid the complaint charging the accused with having committed offences punishable under Section 137 of the Customs Act and Rule 126 (P) (2) of the Defence of India Rules. 1962. When examined under Section 342 Cr. P. C. the accused admitted that he was in possession of the gold seized from him and his having made a statement to P. W. 1 but explained that he did not know what was recorded in Ex. P-9 for the reason that he could not understand either Telugu or English Properly: and that the gold, which belonged to him was seized when he was bringing it back from Bombay, to which place he had taken the same for the purpose of getting some ornaments prepared in vain as the terms for the same were not settled to his satisfaction. On a consideration of the evidence placed before him, the leaned Magistrate held that the complaint is bad for want of proper sanction and that in any view the prosecution had not been able to bring home the guilt to the accused under the charges levelled against him. He accordingly acquitted the accused of both the charges and directed that the gold and other articles seized from the accused should be returned to him. Hence s this appeal, as, according to the learned Public Prosecutor, the court below erred ins its conclusion that the prosecution is vitiated for want of the requisite sanction or that it has not been able to conclusively establish the charges framed against the accused. It is also urged that the direction given by the learned Magistrate for disposal of the property is, in any view, untenable.
(3.)The learned Magistrate held that the complaint against the accused for the offence punishable under Rule 126 (P) (2) of the Defence of India Rules is bad as it is not shown to have been instituted by or with the consent of the Administrator or any person authorised by the Administrator as contemplated by Rule 126 (Q) of the Defence of India Rules. It was no doubt alleged ins paragraph 1 of the complaint that the complaint was authorised by the Collector of Customs and Central Excise, Hyderabad, to prosecute the accused for the offence of acquiring and having in his possession gold with foreign markings; but the said authorisation has not been filed into court. The learned Public Prosecutor invited my attention to a notification said to have been issued under Rules 126 (J)(4) sand 126(X) of the Defence of India Rules on 5-11-1963, authorising the Assistant Collectors, Central Excises to institute prosecutions for offences punishable under Part XII-A of the Defence of India Rules. This circumstance does not however justify his contentions that the court below went wrong in finding that the prosecution for contravention of the Gold Control Rules is vitiated or want of necessary authorization as the notification in question was not placed before that Court. It is contended for the respondent and rightly too, that he was denied the opportunity of showing that the notification in question is not ins accordance with the requirements of law as it was not produced and made available to him in the trial court. Reference may be made in this context to an unreported decision of this court ins Crl. R. C. No. 728 of 1965 (AP) in which it was held by Mirza, J., that failure to produce the notification authorising the concerned (sic) to institute the prosecution would vitiate the conviction. I must, therefore, agree with the Court below that the prosecution of the accused for contravention of the Gold Control Rules is vitiated for want of proof that the complainant was duly authorised under Rule 126 (Q) of the Defence of India Rules to institute the same.

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