C.K. Buch, J.
1. The petitioners-revisioners, by moving this Revision Application, have prayed for quashing and setting aside the judgment order dated 13th October, 1995, passed by the learned Chief Judicial Magistrate, Kutch at Bhuj in Criminal Case No. 1357/1984 and the judgment and order dated 9th June, 2003 passed by the learned Sessions Judge, Kutch at Bhuj in Criminal Appeal No. 39/1995, confirming the order of conviction passed by the learned trial Court holding the petitioners guilty of the offence punishable under Section 135 of the Customs Act, 1962 (hereinafter referred to as 'the Act').
2. The petitioners are the orig. accused persons of the aforesaid Criminal Case, who have been tried on the strength of the complaint filed in the Court of learned Chief Judicial Magistrate, wherein it is alleged that the petitioners tried to export 550 sheep and goats out of which 182 goats were belonging to prohibited category i.e. Barbara breed. The export of goats of Barbara breed was prohibited under the Control Order issued under the provisions of Import and Export (Control) Act, 1947 during the month of November, 1980. The prosecution placed oral as well as documentary evidence before the learned trial Court and at the conclusion of the trial, the petitioners were held guilty. The order of conviction and sentence passed by the learned Chief Judicial Magistrate and confirmed by the learned Sessions Judge, has been challenged by way of preferring this Revision Application on various grounds mentioned in the memo of the Revision Application and it is submitted that the impugned judgments and orders passed by the Courts below are illegal, unlawful, unjust and hence, deserve to be quashed and set aside.
3. To appreciate the say of the parties, some basic facts are required to be mentioned. As per the say of the prosecution, on 25th November, 1980, the petitioners filed Shipping Bill No. 528 for export of a herd of 550 sheep and goats to Dubai and the export was to take place at the Port Mundra of Dist. Kutch on 26th November. In the midnight, Mr. Rana, Superintendent of Customs, searched 550 sheep and goats, which were to be exported and the Shipping Bill No. 528 in presence of two panchas and one of these panchas as per the case of the prosecution is a Veterinary Doctor and it was found, during the search or cross-checking that out of 550 sheep and goats, 90 goats were of Barbara breed and 92 goats were of Barbara cross-breed. These goats could not have been exported as there was prohibition by the Export Control Order of 1977 issued under the provisions of Section 3(1) of the Import and Export (Control) Act, 1947. The said 182 goats were seized by the Superintendent of Customs by preparing a panchnama and thereafter statements of various persons came to be recorded under Section 108 of the Act, including the present petitioners. On 7th May, 1984, a complaint was lodged stating details of the alleged irregularity/illegality found by Mr. Rana in the Court of learned Chief Judicial Magistrate, Kutch at Bhuj and the learned trial Court on evaluation of evidence found that the prosecution has proved the guilt beyond reasonable doubt and, therefore, both the petitioners came to be convicted and on 13th October, 1995 the learned trial Court after affording opportunity of hearing on the point of sentence, imposed imprisonment of six months and a fine of Rs. 3000/-(Rupees Three Thousand), in default S.I. for three months. This order of conviction and sentence was challenged by way of preferring an appeal before the learned Sessions Court and the learned Sessions Judge after dealing with the abovementioned Criminal Appeal No. 39/1995, confirmed the order and dismissed the appeal filed by the petitioners.
4. It is not a matter of dispute that for the contravention of Act, the Department of Customs had instituted adjudication proceedings by issuing notice under Section 124 of the Act and in this adjudication proceeding, the Additional Commissioner of Customs, Ahmedabad, after hearing the parties found that the petitioners are guilty of contravention of provisions of the Act, more particularly, provisions of Section 113 of the Act, vide order dated 16th April, 1981. The authority imposed penalty of Rs. 25,000/- on each petitioner under Section 114 of the Act and also directed confiscation of cash security of Rs. 25,000/- under Section 113 of the Act. The order dated 16th April, 1981 passed by the Additional Commissioner of Customs, Ahmedabad, was challenged by way of preferring an appeal before the Central Board for Excise and Customs, New Delhi, as per the scheme of Section 128 of the Act. The Central Board decided the appeal by its judgment and order dated 12th August, 1981, whereby the petitioners were exonerated from the charges levelled against them in the show cause notice issued by the Department and the penalty imposed upon the petitioners under the Act has been quashed and set aside. The Appellate Authority i.e. the Central Board reduced the amount of confiscation of security deposit to Rs. 10,000/- from Rs. 25,000/- and ordered to return the remaining amount to the petitioners. So before institution of the Criminal Complaint in the Court of learned Chief Judicial Magistrate, Kutch at Bhuj on 7th May, 1984, this departmental proceeding had reached to a logical end.
5. Mr. B.B. Naik, learned counsel appearing for the petitioners, has developed various points by pointing out the illegality and infirmities in the order holding the petitioners guilty for the offence punishable under Section 135 of the Act. The first point placed by Mr. Naik is that the main prosecution witness i.e. Investigating Officer Mr. Rana, Superintendent of Customs, was not available for examination during the trial as he had expired, pending trial and, therefore, the petitioners had no opportunity to cross-examine the main witness of the prosecution and the other Customs Officer, who had assisted Mr. Rana in the investigation namely Mr. C.U. Thakkar, though he was available and though it was possible for the prosecution to examine Mr. C.U. Thakkar. So this has seriously prejudiced the case of the prosecution in the background of other set of facts emerging from the record. That the panchnama at the relevant point of time was made by Mr. C.U. Thakkar on the instructions of Mr. Rana, Superintendent of Customs and the statements of panchas as well as the petitioners were recorded by Mr. Rana but were written by Mr. C.U. Thakkar. Therefore, unless Mr. C.U. Thakkar is examined as witness, the statements written by Mr. C.U. Thakkar and recorded by Mr. Rana could not have been accepted and admitted in evidence. The said panchnama and evidence recorded by Mr. Rana which have been wrongly admitted and treated as part of evidence, is not only procedural illegality but it is a patent illegality and the finding arrived at by the learned trial Court and confirmed by the Appellate Court can be said to have been faulty and based on facts which cannot be termed as a piece of evidence in the eye of law. The second point is that the statement of Mr. Harun Taiyab Sap exhibited at exh. 54 and relied upon by the learned trial Court suffers from very infirmity because the fact of recording of that statement was required to be proved either by Mr. Rana or by Mr. C.U. Thakkar. The statement of Mr. Harun Taiyab could have been proved by examining Mr. Harun Taiyab. It is argued that both Mr. C.U. Thakkar and Mr. Harun Taiyab, were available as witnesses. The statement of a person recorded under Section 108 of the Act can be admitted in evidence and taken on record of the case, only if the requirement of Section 138(B) of the Act, is satisfied. At this stage, the relevant Section is required to be referred and the relevant part of the said Section is as under:
'138(B) : Relevancy of the statements under certain circumstances;
(1) A statement made and signed by a person below any gazetted officer of customs during the course of any enquiry or proceedings under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains :-
(a) when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party or who presence cannot be obtained without an amount of delay or expenses, which under the circumstances of the case, the Court considers unreasonable, or
(b) when the person who made statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.
(2) The provisions of subsection (1) shall so far as may be apply in relation to any proceedings before a Court, as they apply in relation to a proceeding before a Court.'
6. The aforesaid provision is very clear, which clearly provides that when a person who made the statement is dead or cannot be found or is incapable of giving evidence or is kept out of way by the adverse party or whose presence cannot be obtained without an amount of delay or expenses, which under the circumstances of the case, the Court considers unreasonable, only then the statement of such person can be received in evidence. I have carefully gone through both the judgments and no such finding is recorded qua other important witness Mr. Harun Taiyab. So according to Mr. Naik, both the Courts below have committed grave error in accepting the statement of Mr. Harun Taiyab as a substantive piece of evidence and considering the contents thereof in favour of the prosecution. Both the Courts below have grossly ignored the proceedings initiated by issuing notice under Section 124 of the Act and the finding recorded by the highest forum dealing with the intra department proceeding. The Central Board for Excise and Customs has recorded categorically that there is no evidence on record to suggest that customs area where 550 goats were kept for export or in the near vicinity, that was only a herd of goats which would have been substituted by the petitioners with those ban variety after the Veterinary Doctor examined the said 550 goats on 24th November, 1980 and he certified that they were not of prohibited breeds. It is also observed by the Central Board that according to the practice in vogue some identification mark is affixed on the live stock examined by the Veterinary Doctor but that was not done in the instant case, thereby exposing the petitioners to first charge of replacing a herd of 182 goats. The Central Board has observed that :
' ...there is no tangible tangible evidence on record to suggest that 182 herds of goats were substituted after live stock were examined by the Veterinary Doctor on 24.11.1980.'
7. There is some force in the third point of submissions of Mr. Naik. He states that the finding recorded by the learned trial Court holding the petitioners guilty for the offence punishable under Section 135 of the Act is erroneous because the said Section provides for an offence which has already been committed and not the offence for attempting or preparation to commit the offence. Section 135(A) of the Act provides for punishment for preparation of export any goods in contravention of the provisions of the Act. So it is submitted that in the present case even as per the say of the prosecution, the petitioners have not exported the goats of prohibitory breed as contended by the prosecution but before the alleged export could take place, the live stock was searched and actual export was prevented, so far as a herd of 182 goats of prohibited breeds is concerned. So at the most it can be said that the petitioners have made preparation to export the goods in contravention of the provisions of the Act and at the most it can be said that the petitioners have committed offence punishable under Section 135(A) of the Act only and not under Section 135 of the Act. The fourth point advanced by Mr. Naik has also some reasonable force, whereby he has submitted that the statements of the petitioners recorded under Section 108 of the Act are exculpatory and, therefore, the learned Chief Judicial Magistrate ought not have placed any reliance on the said statements for convicting the petitioners. As stated by the petitioners-accused in the statements recorded under Section 108 of the Act, they were not at all aware about the presence of 182 goats belonging to prohibited breeds out of 550 sheep and goats; and there was no evidence on record of the case, except the evidence of Mr. B.H. Patel, Veterinary Doctor to come to the conclusion that the petitioners tried to export 182 goats belonging to prohibited breed. On the contrary, Mr. B.H. Patel, Veterinary Doctor, is the person who had verified physically the entire live stock and issued certificate. So his version could not have been accepted under any circumstances for the reasons that he himself may be a party while certifying the live stock and hence, his evidence requires to be ignored and if the say of the Veterinary Doctor Mr. Patel is not accepted, there is no evidence under which it can be concluded that the prosecution proved and established the guilt. It is in evidence that the live stock was to be exported from the Port Mundra and the petitioner no. 2 was present at Port Mundra on 24th November, 1980 and at that time the petitioner no. 1 was at Mumbai and he was not even present at the Mundra Port. The petitioner no. 2 had approached Mr. B.H. Patel for necessary examination and certification of the said sheep and goats and he requested the said Veterinary Doctor to examine the said sheep and goats on 25th November, 1980. Mr. B.H. Patel was out of Mundra Port on 25th November, 1980 and, therefore, he accepted the offer and assured that he would examine the said sheep and goats on 24th November, 1980 itself and he accordingly examined the sheep and goats and issued certificate regarding their health condition and also stating that they are not belonging to any prohibited breed. The learned trial Court has not cared to appreciate one aspect that when the live stock was in the port area and under the control and supervision of the officials and security personnel of customs, it was not possible for the petitioners to take out 182 goats from the entire lot of 550 sheep and goats and to replace the same number of goats of prohibited breed in the area where live stock was kept after examination by Veterinary Doctor. This aspect was considered by the Appellate Authority i.e. the Central Board.
8. The validity of the sanction to prosecute granted by the authority is also challenged by the present petitioners and it is submitted that while according sanction, the authority had not applied its mind and the sanction is ordered mechanically. The complaint against the present petitioners could have been dismissed on the point of legality and validity of sanction and also as per the ratio of the decision in the case of P. Jayappan v. S.K. Perumal, reported in AIR 1984 SC 1693, wherein the Apex Court has observed that :
'Criminal Court, no doubt, has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case, it might drop the proceedings in light of an order passed under the Act.'
9. The principle propounded by this decision has been reiterated and elaborated by the Apex Court again in the case of E.S. Rajya v. State of Bihar, reported in 1996 (9) SCC 1 and it would be for the Court to quote relevant para :7 of the decision, which is as under :
'The standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. In the instance case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. The appellant's case can be brought under more than one head of guidelines laid down in Bhajan Lal case (supra) for quashing of a complaint/FIR.'
10. The same is required to be considered in light of the ratio of decision in the case of Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandojirao Angare, reported in AIR 1988 709 (relevant para :7).
11. I have carefully seen the sanction accorded by the authority to prosecute the petitioners dated 19th May, 1983. I would like to reproduce the relevant part of sanction to prosecute granted under Section 137(1) of the Act : '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 [Commissioner of Customs].'
12. From the plain reading of the sanction, it clearly reveals that the same is accorded in light of the finding recorded by the Additional Collector of Customs at Ahmedabad in order in original dated 16th April, 1981 issued from File No. VIII/10-3/DC/81. This very order referred to by the sanctioning authority i.e. the Collector (Customs) is reversed by the Appellate Authority i.e. the Central Board. On the date of issuing sanction i.e. 19th May, 1983, the order of Appellate Authority was very well available with the sanctioning authority but there is no reference of the order passed by the Appellate Forum; either the same is ignored with an ulterior motive or the sanction is granted mechanically even without referring the memo of the appeal preferred before the Central Board and the finding recorded by the Appellate Authority. The Appellate Authority in its order has considered material aspects. It would be proper to reproduce the relevant paragraph nos. 9, 10 and 11 of the said order, which are as under :
'(9) The Board has carefully considered the records of the case, the submissions made in the memorandum of appeal and these urged at the time of personal hearing.
(10) The Board observe that there is no tangible evidence on record to suggest that 182 heads of goats were substituted after the live stock was examined by the veterinary doctor on 24.11.1980.
(11) The Board is therefore, inclined to extend the benefits of doubt to the appellants and in doing so remits the personal penalty of Rs. 25,000/- imposed on such of the two appellants in full.'
13. The fact that the Appellate Authority confirmed the finding qua the confiscation of the goats of prohibited breed by itself would not make the sanction either valid or a sanction which can be said to have been accorded with proper application of mind. The sanction of prosecution is bad in law, if the Collector betrays total non-application of mind inasmuch as sanction does not show precisely the nature of the offence and all material facts of the case. This is the ratio of the decision of Delhi High Court in the case of Y.S. Bawa, Supp. of Customs v. Siri Niwas Jain, reported in 1985 (21) E.L.T. 382 (Delhi). The element of extraneous consideration may not be there in the order of sanction. The ratio of the decision of Orissa High Court reported in 1987 Cr. L.J. 1362, in the case of Doki Sriramulu v. Asst. Collector, Central Excise and Customs, helps the present petitioners; whereby the Orissa High Court has observed as under :
'P.W.1, who is the Superintendent of Central Excise, has purported to have proved the sanction under Exh. 5 and according to his evidence, the Assistant Collector, Central Excise, obtained the sanction from the Collector. Even the said Assistant Collector has not been examined to indicate as to what were the materials which were produced by him before the Collector on the basis of which he accorded the sanction in question. Thus, neither the sanction order itself discloses nor is there any evidence on record to indicate the materials which were produced before the sanctioning authority and were considered by him and in my view, therefore, the said sanction does not conform to the requirements of law and hence cannot be held to be a valid sanction in the eye of law.'
14. In the present case the officer, who has given sanction, has failed in proving that before according sanction he had considered the judgment delivered by the Appellate Authority.
15. In the case of Kallatra Abbas Haji v. Government of India, Ministry of Finance and Ors., reported in 1985 E.C.C. 21, the Kerala High Court has held that:
'True, section 138-B states that a statement made and signed by a person before any gazetted officer of customs is relevant to prove the truth of the fact it contains in any proceeding under the Act. But these statements are relevant only if the conditions prescribed under clauses (a) or (b) of all, clause (b) alone can be attracted. Under this clause, the statement is relevant when (a) the person who made the statement is examined and (b) the statement is admitted in evidence after the authority forms an opinion that in the interest of justice and having regard to the circumstances of the case, it should be so admitted.'
16. It is one of the accepted principle in the field of criminal jurisprudence of the country that there is no rule of estoppel, which would operate against the petitioners-accused in challenging the validity of the sanction at any stage. The onus of proving the validity and legality of the sanction rests upon the prosecution. Hence, it cannot be said that the accused can challenge the validity of the sanction only at the trial stage, especially when the prosecution had not led any evidence to establish that all the facts germane to grant of sanction were placed and the same are duly considered by the sanctioning authority. At the most, it can be argued that if a prosecution is turned down on account of infirmity in the sanction to prosecute, the very accused can be subject for prosecution after proper sanction. In light of the facts and circumstances of the present case, it would not be either proper or legal for this Court to say that the petitioners should be subjected to prosecution after a valid sanction.
17. Ms. Manisha Lavkumar, learned counsel appearing for the respondent no. 1, of course has taken me through various findings recorded by the learned Chief Judicial Magistrate and the reasons assigned by the learned Chief Judicial Magistrate, confirming the order of conviction and sentence but in response to the query raised by the Court as to how a particular statement of the accused or witness Harun Taiyab could have been read as a substantive piece of evidence in absence of formal proof as to their recording and element of voluntariness could have been read by the learned Chief Judicial Magistrate. The response of learned counsel has not been found convincing. The fact that 182 goats were seized immediately prior to they were to be boarded in a sheep by itself would not be sufficient to hold the accused guilty for the offence punishable under Section 135 of the Act and this aspect was considered by the Central Board and on appreciation of facts, the Central Board has recorded that there is no tangible evidence on record to suggest that a herd of 182 goats was substituted after the live stock was examined by the Veterinary Doctor on 24th November, 1980 and, therefore, the case of the prosecution is found infirm. Both the Courts below have erred in appreciating the evidence and in considering the inadmissible part of evidence while recording their finding. So judgment and order of both the Courts below shall have to be quashed and set aside on merit as well as on account of invalid sanction.
18. In light of the foregoing discussion and the observations, the Revision Application is allowed and the Rule issued by the Court earlier be made absolute. The petitioners-accused persons are acquitted from the charges levelled against them. The fine, if any recovered, be refunded to them and the bail bond executed by the petitioners stands discharged. Rule is made absolute.