1. The complainant had filed Criminal Case No. 4439 of 1978 before the Chief Judicial Magistrate, Nanded, against the two accused, who are real brothers, for offence under Section 135(1) of the Customs Act, 1962, read with Government of India, Ministry of Commerce and Industry, Import Trade Control Order No. 17 of 1955 issued under Sections 3 and 4A of the Import and Export Control Act, 1947. Charge was, however, framed by the learned Magistrate against the accused for offence under Section 135(1)(b)(ii) of the Customs Act. After full trial, the learned Magistrate acquitted both the accused of the offence with which they were charged and this order of acquittal dated 27-11-1981 is challenged by the original complainant in this Criminal Appeal.
2. As observed above, both the accused are real brothers, but they are residing separately at Nanded. The prosecution alleged that the customs officers had reliable information that the accused acquired, possessed and dealt with some smuggled goods in contravention of the provisions of the Customs Act and, as such, those goods were liable for confiscation under Section 111 of the said Act. In pursuance of such information, Janardhan Modak (P.W. 1), who was the Superintendent of Central Excise at Nanded, raided the house of accused No. 1 - Bharat Gadewar - on 27-3-1976 with the aid and assistance of his colleagues and in presence of two panchas. During this search, some wrist watches of foreign origin and nylon brand straps collectively valued at Rs. 11,476/- were found with accused No. 1 and accordingly they were seized by Mr. Modak under a panchnama of seizure of that date. It was further alleged that on the basis of the confidential information, the house of accused No. 2 - Sudhakar Gadewar - was also searched on 29-3-1976 by the customs officers, namely, Nathmal Krishnaji Patil and others, under the search warrant issued by the Superintendent of Central Excise, Mr. V.Y. Bendre (P.W. 3), and in that search, Rado wrist watch of foreign origin, three Dimensional Photographs of Japan Make and foreign made straps, valued at Rs. 1,079/-, besides other documents and tools, were found with accused No. 2 and accordingly, they were seized under a seizure panchnama.
3. It was also alleged that after this search, the statements of accused Nos. 1 and 2 were recorded by the officer of the Central Excise under Section 108 of the Customs Act. The Deputy Collector of Central Excise and Customs, Pune, held enquiry and passed an adjudication order on 31-7-1978, where by the articles found in possession of both the accused were confiscated. After obtaining the requisite sanction for prosecution of the accused, the complainant filed private complaint against both the accused in the Court of the learned Chief Judicial Magistrate, Nanded, for offences mentioned in paragraph 1 above.
4. The learned Magistrate framed charge under Section 135(1)(b) of the Customs Act against both the accused, to which they pleaded not guilty. They contended that their statements were extorted involuntarily from them by the customs officers.
5. The complainant examined five witnesses before the learned Magistrate and on considering their evidence, the learned Magistrate held that the original sanction was not produced by the complainant and, as such, he could not take cognisance of the offence with which the accused came to be charged. He also held that Modak (P.W. 1) and Bendre (P.W. 3) were not authorised to conduct such search of the house of the two accused and, as such, the search effected by them was illegal. He also discarded the statements of the accused before the customs officers, which are at Exhs. 33 and 40, and further held that both the accused did not acquire or possess or conceal or sell any foreign made watches and smuggled goods. With these findings, he acquitted both the accused for the offence with which they were charged. It is this order of the learned Magistrate which is challenged in this Criminal Appeal by the complainant.
6. The first point that needs to be considered is whether there was a sanction to prosecute both these accused as required by Section 137(1) of the Customs Act. Section 137 provides that no Court shall take cognisance of any offence under Section 132, 133, 134 or 135 of the Act, except with the previous sanction of the Collector of the Customs. This section, therefore, creates a legal bar against taking of cognisance of the offences by the Magistrate. It was not disputed on behalf of the Appellant that the sanction of the Collector of Customs was necessary to be filed in the case before the learned Magistrate could take cognisance of the offences in question. Shri B.B. Jadhav, the learned Additional Public Prosecutor appearing for the Appellant, fairly conceded before me that the original order of sanction passed by the Collector of Customs was not filed in the lower Court. However, Shri Jadhav submitted that copy of the order of sanction was already produced with the complaint and it was only a technical defect on the part of the complainant that original order of sanction was not produced. He, therefore, made a prayer that the case should be remanded to the learned Magistrate for re-trial after permitting the Appellate to file the original order of sanction. This prayer for remand was stoutly opposed on behalf of the Respondents-accused. The record shows that the case was pending before the learned Magistrate for about three years. It is really surprising to note that even till the evidence was recorded, the complainant did not feel it necessary to file the original order of sanction. There is also no explanation on behalf of the complainant for his failure to file the original sanction order in the lower Court. This negligence or laxity on the part of the complainant is un-understandable. There was sufficient opportunity given to the complainant to file the original order of sanction before the learned Magistrate, but he did not choose to do so. In these circumstances, I am not inclined to grant the prayer for remand as made on behalf of the Appellant. Although, as I shall point out later on, even on merits the complainant does not possess a strong case.
7. As the position stands, the original order of sanction is not produced in the case, and, as such, the learned Magistrate could not take cognisance of the offence in question. I would, therefore, hold that this was a serious lacuna on the part of the complainant and on this ground, the learned Magistrate was correct in dismissing the complaint and acquitting both the accused of the offence with which they were charged.
8. The second point which was argued on behalf of the Appellant was that the searches of the houses of the accused and the seizures of the articles made therefrom were fully in accordance with law. The search of the house of accused No. 1 was made by Modak (P.W. 1), while the search of the house of accused No. 2 was made by Inspector Patil (P.W. 2) and Bendra (P.W. 3). The learned Magistrate was of the view that both these persons were not properly authorised to seize the articles from the houses of accused Nos. 1 and 2 and, as such, the search was illegal. In this connection, it would be important to bear in mind the provisions of Section 105(1) of the Customs Act. That section deals with powers to search premises and it provides :-
'If the Assistant Collector of Customs, or in any area adjoining the land frontier, or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things.'
9. Modak (P.W. 1) has stated that he had himself acquired the legal power to conduct the raid. Shri Jadhav drew my attention to certain circulars of the Government, under which the gazetted officers were authorised to effect search, but those circulars or rules did not come to be filed by the complainant in the lower Court. Consequently, if the learned Magistrate has taken the view that Modak (P.W. 1) had no legal authority to effect the search of the house of accused No. 1, I do not think that he has committed any mistake in doing so.
10. So far as accused No. 2 is concerned, there is an authority letter produced by the complainant, which is at Exh. 32. Under that authority, the Superintendent of Central Excise and Customs had authorised Shri Nathmal Krishnaji Patil, Inspector, Solapur (P.W. 2) to conduct the search of the house of accused No. 2. Under Section 105(1) of the Customs Act, it is Assistant Collector of Customs, who can authorise any officer of customs to effect search. Admittedly, the authority at Exh. 32 is signed by the Superintendent of Central Excise and Customs. Shri Godhamgaonkar, learned Counsel for the Respondents, canvassed before me that the Superintendent of Central Excise and Customs had no power to authorise his subordinates, and, as such, the search effected by Patil (P.W. 2) would not be legal. I find myself in agreement with the argument advanced by Shri Godhamgaonkar. The view thus taken by the learned Magistrate that the customs officers, i.e., P.W. Nos. 1 to 3, did not possess proper authority to effect search is quite reasonable and, accordingly, I endorse the same. This is the second ground on which the learned Magistrate has acquitted both the accused.
11. Shri Jadhav then placed reliance on the presumption under Section 123 of the Customs Act. The learned Magistrate rightly held that the presumption would not be applicable in this case since the searches were illegal. The learned Magistrate dealt with the evidence of the panch witnesses, namely, Narsayya (P.W. 4), who was examined on the panchnama of search effected at the house of accused No. 1; and Omprakash (P.W. 5), who worked as a panch at the time of search of the house of accused No. 2. Narsayya stated that the customs authorities showed him some wrist watches when he went to the house of accused No. 1 and those watches were seized under panchnama. In cross-examination, he stated that the wrist watches were already in possession of the officer of the customs department. It appears that he is required to take licence of excise duty for his bidi business since 1950 and, as such, he is a person under the thumb of the excise department. The learned Magistrate, therefore, rightly held that the evidence of this witness Narsayya did not support the story of the complainant on the point of search of the house of accused No. 1 and finding of wrist watches and other articles from his house.
12. Omprakash (P.W. 5) has stated that the customs officers were already at the house of accused No. 2 before he reached there and he remained in the house of accused No. 2 for about 10 minutes. He could not give any details as to how much property was recovered from the house of accused No. 2. His cross-examination shows that he was doing business of bidis and thus he was having business connections with the excise department. In view of these circumstances, the learned Magistrate rightly rejected his evidence. Consequently, the finding of the learned Magistrate that the searches effected at the houses of both the accused were not legal is correct. Similarly, his finding that the property found under the two panchnamas was recovered during the search at the house of the two accused does not appear to be unreasonable.
13. One more point was advanced on behalf of the Respondents in this appeal and it was that a joint complaint against accused Nos. 1 and 2 could not be maintained since the dates of offence in both the cases were different. It appears that it was not shown to the learned Magistrate how this complaint should be entertained in respect of the offences, which took place on two different dates. No nexus had been established between these two offences concerning two different persons. This was also one of the grounds on which the story of the complainant came to be discarded by the learned Magistrate.
14. It will thus be seen that the view taken by the learned Magistrate and the findings recorded by him on merits appear to be well justified on the material on record. Consequently, I have got to maintain the order of acquittal recorded by the learned Magistrate in favour of both the Respondents.
15. In the result, this Criminal Appeal is dismissed. The order of acquittal recorded by the learned Chief Judicial Magistrate, Nanded, in favour of the Respondents for offence under Section 135(1)(b) of the Customs Act is hereby confirmed.