1988 (1) TMI 48

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....red contraband articles such as 13 bottles of whisky, etc., and on the basis of such recoveries proceeding was initiated against them under Section 135 of the Customs Act. 3. The plea of the petitioners is that the contraband articles in Question were not recovered from their possession. The defence has examined D.W. in support of their plea. 4. The prosecution has examined, in all, 4P.Ws.to prove its case. P-W. 2 is the Superintendent of Customs and P.W.s 1 and 3 are Inspectors of Customs. P.W. 4 is a teacher and he is examined as an independent witness. The evidence of P.Ws. 1, 2 and 3 shows that on 28-2-1981 they searched the house of the accused persons on the strength of the search warrant issued by the Assistant Collector, Custo....

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....of the reliable positive evidence of P.Ws. 1 to 3 that the contraband articles were recovered from the house of the petitioners. Admittedly P.W. 1 works with the accused persons in the same dock. He claims to be present at the time of the search of the houee but he states that he did not go inside the house which was searched and that he cannot say what articles were recovered from the house on search and from which room the articles were seized. The nature of the evidence of P.W. 1 is such that no reliance can be placed on him when he stated that there was a narrow passage connecting the shop of one Bhimson Sahu with the house which was searched by the statf of the customs department. Hence, it is seen that the evidence of P.Ws. 1,2 and 3 ....

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.... It is well settled that the accord of sanction under Section 137 of the Act is not an empty formaiity and, therefore, the order of sanction must disclose that the sanctioning authority has applied his mind to the facts of the case before according sanction. In this context, the learned counsel for the petitioners relied on the decision reported in 62 (1986) C T. 51 (Doki Sriramulu v. Assistant Collector of Central Excise Customs and Another). Normally, the plea of one of due sanction is a mixed question of law and fact. In the above referred case the sanction order did not sanction the prosecution of the petitioner under Section 135 of the Customs Act though he was convicted under that section. In the present case Ext. 9 is the sanction or....