TMI Blog2012 (2) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... n order is not required to state that he had personally scrutinized the file and had arrived at the required satisfaction. The non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases. Therefore, petition is allowed and the impugned order is set aside. The matter is remanded back to the court of learned ACMM, New Delhi. - Crl.Rev.P. 670/2010 - - - Dated:- 14-2-2012 - M.L. Mehta, J. Satish Aggarwala, Adv. with Sushil, Adv. for the Petitioner Sonam Nagrath, Adv. for the Respondent M.L. Mehta, J 1. The present revision petition is against the order of the LD ACMM discharging the Respondents herein under section 245 CrPC. 2. The brief facts necessitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondents herein. Thereafter sanction for prosecution under section 135 Customs Act was granted by the Collector of Customs for the prosecution of the Respondents and one Shri Shyam Singh on 25.09.1992. 3. The LD ACMM vide order on charge dated 04.08.2010 discharged the Respondents under section 245 CrPC due to lack of sufficient evidence to proceed with the trial and irregularity in the sanction order. The present revision petition under section 397 r/w 401 of the CrPC assails the order of the Ld ACMM discharging the Respondents herein. 4. At the outset the counsel for the respondents have challenged the maintainability of the present revision petition contending that the present revision petition should have been filed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and the offences disclosed by those facts. There is a presumption under section 114 of the Evidence Act as to the official acts having been regularly performed in the absence of any evidence to the contrary. Further, there was no requirement of the mandatory examination of the sanctioning authority at the pre-charge stage. The non-examination of the sanctioning authority as a witness at a pre-charge stage could not vitiate the sanction order. What was the pre-requisite for taking cognizance under Section 137 of the Customs Act was the prior sanction of the authority. It was no-where prescribed that the sanctioning authority was to be examined either at the time of taking of cognizance or at the stage of pre-charge evidence. Prima faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the guilt can only take place when the trial proceeds without any interruption. Therefore, it cannot be presumed that there was no application of mind when the sanction of the Government was obtained." 8. In the case of Kushal Kumar (supra), reliance was placed on the under-mentioned observations of the Supreme Court in the case of State of Bihar vs. P.P.Sharma, IAS, 1992 Supp (1) SCC 222, which reads thus: "It is equally well settled that before granting sanction the authority or the appropriate government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and the appropriate government would apply their mind to those facts. The order of sanction is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of sanction; an opportunity of hearing is not necessary to be given before the grant of sanction. It is purely an administrative act." 10. The other reason given by the ACMM regarding absence of independent witness as a ground for discharge of the accused/respondents is also apparently contrary to law. The non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases. It would depend upon the facts and circumstances of each case and the evidentiary value of the prosecution witnesses could not be undermined at the stage of framing of charges. It is moreso when the prosecution has cited some panch witnesses to be examined in support of its case. The impugned order discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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