2017 (4) TMI 1077
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....003 for importing of 60.54 Metric Tonnes of Tin bend circle waste. Subsequently, the Department of Revenue Intelligence wants to examine the import consignment, the respondent/accused authorised one Muralidharan, the Customs clearing agent and he was present at the time of examination. In his present a detailed examination of the import consignment was conducted on 12.06.2003, and during the examination undeclared cargo in the form of steel sheets and slit coils were found concealed at the bottom of the container covered by the declared cargo. Apart from that the total weight of the imported consignment was found to be 82.85 metric tonnes as against the declared total quantity of 60.54 metric tonnes. On segregation of the declared and undeclared consignment, the declared cargo was found to be only 4.2 metric tonnes, which was also informed to the accused that the cargo will be cleared only after the opinion received from the National Metallurgical Laboratory[NML] and then the Customs clearing agent, three sheets of samples from undeclared cargo was handed over to the National Metallurgical Laboratory authorities for the purpose of testing. P.W.4, the Technical Officer, NML, Tharama....
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.... of Stainless in the form of coils, the samples were taken and they were sent for testing by NML authorities. The market value of the sheet was around Rs. 25 Lacs. P.W.4 is working as Technical officer in National Metallurgical Lab at Tharamani, Chennai. He has tested the samples and given report and the same was marked as Ex.P6. 5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false and he did not examined any witness nor marked any documents. 6. Having considered all the above materials, the trial Court acquitted the accused on the ground that even though a sanction was granted under Section 137 of the Customs Act, and the sanction was not marked before the Court below, apart from that even the statements[Exs.P1 and P2] given by the respondent/ accused, under Section 108 of the Customs Act, there is no inculpatory materials available against the respondent/accused. Now, challenging the above said order of acquittal, the present Criminal Appeal has been filed by the complainant. 7. I have heard the Mr.M.Venkateswaran, learned Special Public Prosecutor for Customs cases and Mr.B.Sathish Sunder, learned counsel app....
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....ion, the learned counsel appearing for the respondent/accused relied upon a Judgment in ASSTT. COLLECTOR OF CUS., R & I(P) Vs. HUSSAIN ABBAS SHAIKH & OTHERS reported in 1992 (59) E.L.T. 394(Bom.) and another Judgment in ASSTT. COLLECTOR OF CUS.(PREV.), BANGALORE Vs. P.M.ABDUL RAHAMAN reported in 2001 (133) E.L.T. 299(Kar.) 10. I have considered the rival submissions. 11. So far as the first contention of the learned counsel appearing for the appellant regarding the sanction under Section 137 of the Customs Act, getting a previous sanction is the condition precedent for initiation of prosecution for the offence under the Customs Act. Even though the learned counsel for the respondent/accused contended that the previous sanction was granted by the competent authority, the sanction order was not marked before the Court and no witness was examined by the appellant to prove that the proper sanction was granted for prosecuting the accused. Section 137 of the Customs Act reads as follows:- "Section 137 in the Customs Act, 1962 137 Cognizance of offences. (1) No court shall take cognizance of any offence under section 132, section 133, section 134 or [section 135 or section 135A], ex....
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....dismissing the SLP filed by the complainant against that judgment in SLP.No.(Crl.)No.4496 of 2001 dated 20.07.2000. 13. In a similar circumstances, the High Court of Bombay in ASSTT. COLLECTOR OF CUS., R & I(P) Vs. HUSSAIN ABBAS SHAIKH & OTHERS reported in 1992 (59) E.L.T. 394(Bom.), has held as follows:- "27. Further as decided by the Supreme Court as aforesaid, it must be clear either from the original documents or by evidence led by the prosecution that the Court must be satisfied that the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and had applied its mind for the same. In the present case, as already pointed out above, the prosecution has filed only the true copy of the order of sanction and none of the five witnesses from the Customs examined by the prosecution even referred to the order of the sanction. In the light of these circumstances, as observed by the Supreme Court, the prosecution is liable to fail on the ground of sanction alone." 14. So far as the next contention of the learned counsel appearing for the respondent/accused that since the sanction order is already available, the matter can be remanded back ....