2007 (1) TMI 555

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....ing and setting aside the order of conviction and sentence dated 16-5-1991 passed by learned Addl. Chief Judicial Magistrate, Valsad in Criminal Case No. 1 of 1987 and acquitting the accused/present respondent of the charge of commission of offence under Section 135 of the Customs Act, 1962 and under Section 85 of the Gold Control Act, 1968. This Court (Coram : N.J. Pandya, J.) granted leave and admitted the appeal vide order dated 29-7-1993. 2. Heard learned counsels for the parties. The facts in brief leading to filing of this appeal deserve to be set out as under : 1.      The complaint came to be filed by one Shri Dayashankar, Assistant Collector of Customs, Valsad against original accused No. 1 Anil ....

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....ght to his house and concealed till his father Jayram arrived from sea for where he had gone for fishing. Accused No. 2 carried 24 gold biscuits and disposed of the same at Bombay with the help of his master. The sale price of which was hidden down in the ground was seized by the authorities. On 2-1-1986 on completion of investigation a complaint was lodged in the court of Addl. Chief Judicial Magistrate, Valsad which came to be numbered as Criminal Case No. 1 of 1987. The trial court after recording evidence of the prosecution acquitted accused No. 1 and convicted accused No. 2 for commission of offence punishable under Section 135 of the Customs Act and Section 85 of the Gold Control Act. Accused No. 2 was sentenced to undergo R.I. for th....

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....e defence that the sanction cannot be said to have been proved. Shri Bhatt has submitted that looking to the record and proceedings it can be said that the order of acquittal is based without appreciating the record and proceedings and therefore the order of learned Sessions Judge is required to be quashed and set aside. 4. Ms. Sadhana Sagar appearing for the respondent/accused has submitted that this being an acquittal appeal this Court may not reverse the order of acquittal unless and until it is proved by the appellant that sustaining of the appeal would result into miscarriage of justice or the acquittal appeal could be permitted to be sustained on any other grounds on which the order of trial court was per say erroneous and the....

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....hat said Shri Dayasankar had not been examined by the prosecution. The testimony of the Superintendent who has been examined has also not uttered a single word about the sanction nor has he said that sanction was ever obtained by even said Shri Dayasankar for filing the complaint. The trial court has therefore wrongly determined the point against the accused that sanction was validly issued. The trial court ought to have appreciated the fact that the sanction was required to be proved and duly exibited before the same could have been taken into consideration. In view of these facts & circumstances and in view of the fact that the prosecution cannot be said to have been proved its case beyond reasonable doubt even against the accused No. 2, ....