TMI Blog1986 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... as, under Section 135(1)(a)(ii) of the Customs Act, 1962, and sentenced to pay a fine of Rs. 1,000/- with a default sentence of imprisonment. On appeal by the revision petitioner/accused, the learned Principal Sessions Judge confirmed the conviction and sentence. There were two accused in this case and the revision petitioner was the second accused, and the first accused has been acquitted by the trial court itself. 2. The case of the prosecution is that on 28-11-1979 Preventive Officers of the Customs found Arokiasamy (A.1) carrying two cloth bags of things at the gangway proceeding towards the ship M.Y. Chidambaram (A.1 was a Dock Utility hand in the ship). P.W. 1 asked A.1 to declare the contents of the cloth bags, and on suspicion he himself verified. Then he found each of the bags containing among other articles like Kumkum, Kajal and wooden combs, opium also, in one bag a packet of 938 grams and in the other bag a packet of 935 grams. P.W. 1 Preventive Officer seized them under a mahazar Ex.P. 2. Then P.W. 1 took A.1 with him and produced him before the Superintendent. On direction by the Superintendent, P.W. 3 another Preventive Officer recorded a statement Ex.P. 5 from A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the injured was also complaining of pain on the back and the left leg. The doctor has further stated that the injury could have been caused due to beating with stick. (Ex.D. 5 is the copy of the accident register and Ex.D. 6 is the wound certificate). His further evidence is to the effect that the injured told him that he was assaulted with sticks and hands and pin. This evidence of the doctor certainly probabilises the case of A.2 that he was beaten by the Customs Officers. It is not in dispute that this injury has been sustained by the accused when he has been in custody, and the prosecution has not explained it. In the cross-examination the doctor has stated that the injury could have been caused by a fall, but it is not the definite case of the prosecution that due to any fall the injury was sustained. According to the Doctor, A.1 also had sustained injuries like A.2, and this injury too has not been explained by the prosecution. It would be rather preposterous to think that both the accused have sustained similar injuries by falling down. As per the evidence of P.W. 3, two letters were received by the Additional Collector from A.1 and A.2 on 3-12-1979 and 4-12-1979 allegin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Elayangudi. But he is the person said to have obtained the confessional statement from A.2 and his evidence is not in the least corroborated by any shred of evidence. Even if the confessional statement of A.1 is to be believed as voluntary and true, that will not at all be sufficient evidence to convict A.2. Thus, there is no reliable evidence on the basis of which A.2 can be convicted. Both the Courts below have not properly considered the salient features of the defence with regard to the alleged confessional statements especially of A.2 i.e., Ex.P. 3. Thus, on this ground alone A.2 is entitled for acquittal. 7. The learned Counsel for the revision petitioner has also argued that there is no valid sanction for the prosecution. The sanction order according to the prosecution is Ex.P. 11. A reading of this would disclose that not a single fact of the case has been stated therein and no grounds of satisfaction has been mentioned. Therefore, it appears sanction has been granted in a mechanical manner without proper application of mind. In this connection, the learned Counsel relies on a decision R. Sivaraj In re [1980 M.L.J. (Cri) 742] wherein Varadarajan, J. has quoted a passag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituting the offence. As pointed out by the learned Counsel for the revision petitioner, the present sanction order does not contain any such thing. Therefore, Ex.P. 11 cannot be considered as a valid sanction. The validity of the sanction order is in question and not any error or irregularity in the sanction as ensconced in Section 465 Cr.P.C. The learned Counsel for the respondent, however, relies on a decision in Tulsi Ram v. State of U.P. - (1963 Supp. 1 S.C.R. 382). In this case no sanction order was filed, but some communication referring to the sanction order was filed, and with regard to this no objection was raised before the Courts below and the objection was raised before the Supreme Court contending that there was no sanction order. In these circumstances, the Supreme Court held that at this stage such a contention cannot be entertained, and from the evidence adduced it must be presumed that there was a valid sanction order. In the present case right from the trial court it was contended on behalf of the accused that there was no valid sanction order. Therefore, the said decision of the Supreme Court relied on by the respondent s counsel cannot be of any use. As observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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