TMI Blog2010 (8) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent challenged the judgment of conviction in Criminal Appeal No. 149/1999. The learned Judge of I-appellate Court by judgment dated12-3-2001accepted the appeal and acquitted the accused of an offence punishable under Section 135 of the Act so also of an offence punishable under section 85(2) of the Gold Control Act. Therefore, the appellant namely Assistant Collector of Customs (Preventive), Mangalore, has filed this appeal. 2. I have heard Sri Y. Hariprasad, learned Senior Central Government Standing Counsel for appellant and Sri P.V. Gunjal, learned counsel for respondent/accused. I have been taken through the evidence and findings of trial Court as also of I-appellate Court. 3. The trial Court accepting the evidence adduced by the complainant has held that on19-5-1987at about3.10 a.m.at K.S.R.T.C. bus stand, Mangalore, the accused was in possession of 11 gold biscuits, one gold chain and one gold buckle, in all weighing 1,515.850 gms. The said articles were of gold metal and they were of foreign origin and the accused had reasonable belief that they are liable to be confiscated under Sections 111 113 of the Act. The aforestated quantity of gold was seized by the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnamoorthy and Others), wherein it is held :- 3. The debate as to whether the Assistant Collector of Central Excise is empowered to make investigation within the scope and meaning of Section 377(2) of the Code of Criminal Procedure is academic and futile for the present purposes unless and until the appeals by themselves were competently filed by the proper designated person as given in the provision. As is evident and crystal clear it is the Public Prosecutor who under the directions of the Central Government is obliged to present an appeal to the High Court against the sentence on the ground of its inadequacy. Such power does not vest with the complainant. Here the appeals have been preferred by the complainant though the counsel engaged by the complainant happens to be the Central Government Public Prosecutor. Plainly a fiduciary relationship of client and counsel appears to have been established. No such situation is permissible under Section 377(2) of the Code of Criminal Procedure. The reason is obvious because the law presumes that it is the Central Government, who through its Public Prosecutor can voice grievance before the High Court in relation to the inadequacy of sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, wherein the Supreme Court has held that the complainant cannot maintain an appeal under Section 377(2) Cr.P.C., which is meant for enhancement of sentence. Further, the provisions of Section 378(4) Cr.P.C., are applicable to an appeal filed against the judgment of acquittal. The legal principles enunciated in the judgments relied by learned counsel for the respondent/accused are not applicable to the facts of the case. Therefore, the preliminary objection raised by learned counsel for respondent/accused cannot be sustained. 13. The law is fairly well settled that I-appellate Court while dealing with the judgment of conviction has to re-appreciate the entire evidence and material on record with reference to findings recorded by the learned trial Judge either to confirm or reverse the judgment of conviction. 14. The learned Judge of I-appellate Court has acquitted by recording the following findings :- (I) The prosecution has failed to prove that articles seized and recovered from possession of respondent/accused were of gold metal and they were of foreign origin. (II) The sanction accorded is not in accordance with the provisions of Section 135 of the Act. (III) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision reported in 2002 Crl.L.J. 2547 (in the case of P. Ramachandra Rao v. State of Karnataka), the Supreme Court has overruled the earlier judgments of the Supreme Court, reported in AIR 1998 S.C. 3281 (Raj Deo Sharma v. State of Bihar) (II-judgment); AIR 1999 SC 3524 (Raj Deo Sharma v. State of Bihar) (II-judgment) and also judgments rendered in AIR 1996 SC 1619 (Common Cause v. Union of India (I-judgment)) and AIR 1997 SC 1539 (Common Cause v. Union of India (II-judgment)). 17. The learned trial Judge by overlooking the judgment of the Supreme Court, reported in 1996 SCC (Cri.) 589 had closed the case of prosecution. 18. Thus, the trial Court by order dated9-7-1999had rejected request of complainant to examine CW. 9 CW. 10. The trial Court by its order dated9-7-1999had mis directed the proceedings. Therefore, the complainant cannot be blamed for non-examination of CW9 CW10. The I-appellate Court has not considered the circumstances under which the complainant had been disabled from examining CW9 CW10 before the trial Court. Therefore, I am of the opinion that the application for examination of CW9 CW10 has to be accepted. 19. The learned Judge of I-appellate Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry statement given by the accused under Section 108 of the Act The I-appellate Court has not at all considered the voluntary statement given by the accused under Section 108 of the Act. 22. The learned counsel for respondent/accused has cited several authorities regarding evidentiary value of statement of accused under Section 108 of the Act. The I-appellate Court has not at all considered the voluntary statement given by the accused under Section 108 of the Act. Therefore, it is not necessary for me to consider the submission of learned counsel for respondent/accused and also the various judgments cited on this aspect. 23. Having noticed the above legal infirmities, which would vitiate the judgment of I-appellate Court, the next point for consideration is :- What is the course of action to be followed by this Court in an appeal under section 378 (4) Cr.P.C? 24. In a decision reported in 1990 Crl.L.J. 1800 (in the case of Lakshmanan Sundaram v. State of Kerala), a Division Bench of Kerala High Court has held that when the matter is remanded to consider an appeal under Section 386 Cr.P.C., it cannot be held that the appellate Court cannot order limited retrial. 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