TMI Blog2011 (3) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... cted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence. Thus the learned Magistrate is perfectly legal, correct and proper in rejecting the prayer of the revision petitioners for a discharge under Section 245 of Cr.P.C. and as such, no merit in the Crl.R.Ps. and accordingly, the same are dismissed. - Crl. R.P. Nos. 3803 & 3848 of 2010, - - - Dated:- 16-3-2011 - V.K. Mohanan, J. S/Shri M. Ramesh Chander, D. Peethambaran, Counsels, for the Petitioner. Shri P.C. Iype, for the Respondent. [Order]. As the challenge in both the Criminal Revision Petitions is against an order dated 24-11-2010 in CMP No. 4075 of 2010, though by different accused in C.C. No. 592 of 2007 and the question of law and facts involved are identical, the above two revision petitions are heard together and being disposed of by this common order. 2. Crl. R.P. No. 3803 of 2010 is preferred by the eighth accused in C.C. No. 592 of 2007 whereas Crl. R.P. No. 3848 of 2010 is preferred by accused Nos. 5, 6 and 7 in the very same Calendar Case pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the instruction of accused No. 5. According to the complainant, during the course of investigation, the D.R.I, has recorded the statements of all the accused under Section 108 of the Customs Act, 1962. Thus, according to the D.R.I., the investigation discloses that accused Nos. 1 and 2 used to procure smuggled gold bars from M/s. Shiv Sahai and Sons, Chennai managed by accused No. 9 and sold the same to accused No. 8, who was an employee of M/s. Balaji Jewellery. Tenth accused is the broker in the said smuggled gold transaction who used to act as an intermediary between M/s. Shiv Sahai and Sons and those involved in the transactions in smuggled gold in obtaining pre-dated and fabricated documents. It is the further allegation of the complainant that accused Nos. 1 and 2 and 5 managed to get fabricated invoice and bills for the smuggled gold bars with the help of accused Nos. 8, 9 and 10 and according to the prosecution, the above fabrication of documents clearly prove that the gold which were sold to obtain the currency, were clearly of contraband origin. The accused No. 10 is no more and accused No. 4 is absconding. On the basis of the above allegation and the complaint, three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not attract Section 135 of the Customs Act. According to him, it is very clear from Section 123 of the Customs Act, the burden of proof on the accused under Section 123 will come only after the confiscation under Section 111 or 113 of the Customs Act. 6. Sri. M. Ramesh Chander, learned counsel appearing for the eighth accused in Crl. R.P. No. 3803 of 2010 submitted that even according to the prosecution, the eighth accused is implicated in the case only because he being the employee of the jewellery and because of his statement under Section 108 of the Customs Act. Otherwise, there is no material to connect him with the alleged offence. In support of the above submission, the learned counsel placed reliance upon the decision of the Apex Court reported in Noor Aga v. State of Punjab Another [2008 (9) SCALE 681] 7. On the other hand, the learned Special Public Prosecutor submitted that in view of Section 2(22)(d) of the Customs Act, goods include the currencies and negotiable instruments and therefore, Section 135(1)(a) of the Customs Act is attracted and consequently, the accused are liable to be punished under Section 135(1)(a)(i) of the Act. Learned Public Prosecutor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Customs Act. Of course, the contention raised by the counsel for accused Nos. 5 to 7 that no offence under Section 135 of the Customs Act is attracted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence. 10. Regarding the submission of the learned counsel that no proper sanction under Section 137 of the Customs Act for taking cognisance of the offence under Section 132 appears to me as not out of place and context. Along with these Crl. R.Ps., the petitioners have produced Annexure I sanctioning order issued by the Commissioner of Customs (Preventive), Kochi whereby it can be seen that sanction was issued for prosecuting the accused for the offence under Section 135 of the Customs Act and in the order, there is no reference to Section 132 of the same Act. But, in the impugned order, the learned magistrate has observed that the facts and evidence involved in the case would clearly make out the offence under Section 132 of the Customs Act. Certainly, in view Section 137 of the Customs Act, no court can take cognisance of any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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