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1977 (8) TMI 171 - High Court Of Bombay

1977 (8) TMI 171 - High Court Of Bombay - TMI - Dated:- 31-8-1977 - Deshmukh Agarwala, JJ. JUDGEMENT- ( 1. ) This is an appeal by the State for enhancement of sentence, The accused has been convicted Under Section 135 (ii) read with Section 135-A of the Customs Act. ( 2. ) The room of the accused was raided on 14-12-1970 when he was found in possession of 173 bars of silver weighing 146. 765 Kgs. valued at ₹ 81,455. He was therefore charged for having offended the provisions of Sections 11 .....

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ion to act in the manner in which he did and by the very fact that he is prosecuted, this poor man is ruined. It was also argued on behalf of the prosecution before the Magistrate that the silver was meant for being exported to Bul-sar from which it could be inferred that the intention was obviously to illegally export outside India. It was also pointed out to the Magistrate that smuggler exports silver and import gold and other luxury articles and therefore serious view should be taken. ( 3. ) .....

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notice was served upon him the accused was not traced for quite sometime. A notification was issued Under Section 83 of Cr. P. C and he was detained in jail for 2| months as he could not afford the security as demanded by the Magistrate. When the learned Judge of the High Court realised that Section 390 of the present Code could not be applied, the accused was directed to be released. In the meantime he was in custody between 29-9-1976 to 15-12-1976. ( 5. ) Two points are raised before us for o .....

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6. ) So far as the first point is concerned the argument is that Section 377 of the present Cr. PC is a new provision permitting the State and the Central Government to file appeals against the sentence on the ground of its inadequacy. Sub-section (1) of that section which is in general terms permits the State Government to direct the Public Prosecutor to present an appeal in the High Court in "any case of conviction on a trial held by any court other than a High Court", Having made su .....

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l Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the inadequacy of the sentence. ( 7. ) What is therefore argued is that the Customs Act is an independent and complete Code by itself. The provisions starting from S 100 in Chapter XIII as well as Chapter XIV provide a complete machinery for the purpose of detection of offence as well as investigation thereof including the recording of statements of witnesses etc. It .....

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der the Code. It is therefore argued that this and the other appeals ought to have been filed by the Public Prosecutor at the instance of and on the instructions from the Central Government. Since all these four appeals are admittedly filed on the instructions of the State Government they are improperly filed and the Court should not entertain these appeals in view of the provisions of Section 377 (2), Cr. PC ( 8. ) A learned single Judge of this Court had previously taken the view that in the c .....

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a v. Mahipati Krishna Ingavale. While disposing of the appeal by short judgment they referred to their reasoned judgment given earlier in the case of Eknath Shankarrao Mukkawar v. State of Maharashtra. While dealing with the principles incorporated in Sub-section (2) of Section 377 they referred to Section 3 of the Delhi Special Police Establishment Act 1947 and pointed out that unless such specific provision is made, the State Government can always file an appeal by directing the Public Prosecu .....

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(amounts to?ed.) a creation of an agency empowered to make investigation into the offence under any Central Act other than this Code, as required by Section 377 (2) of the Code. ( 10. ) Bearing in mind this approach of interpreting the provisions of Section 377 (2), we have gone through the provisions of Chapters XIV and XV as also the provisions of Chapter XVI of the Customs Act, 1962, According to us, the proper view of these provisions will be that the Customs Act has been enacted primarily f .....

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tion is necessary and to that effect a certificate is issued and prior consent is given by the Collector of Customs, no prosecution is filed in the Court. No Criminal Court is entitled to take cognizance of the offence Under Sections 132, 1s3, 134 or 135 of the Customs Act, except with the previous sanction of the Collector of Customs. ( 11. ) In our view, therefore, the scheme of the Act is to enforce the provisions of the Customs Act and to prevent the evasion of Customs Duty, The machinery cr .....

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said that that is a separate machinery for the purpose of investigation of crimes bypassing the provisions of the Cr. PC There is, therefore, no warrant in thinking that the investigation of the Customs crime falls under Subsection (2) of S, 377, Cr. PC so as to render the State Government incompetent to instruct the Public Prosecutor to file an appeal. The two appeals out of the group of four, which are under the Customs Act and which are in relation to offence of Customs Act, are therefore pro .....

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sence of the provisions of the Drugs and Cosmetics Act. To enforce this central idea the various provisions of the Act have been made and officers are appointed primarily for the purpose of enforcement of this Act. While doing so they discover that certain irregularities have been committed or there are acts or omissions which are in breach of the Act and Rules framed thereunder. Such breaches also amount to offence. ( 13. ) Here again where an offence appears to have been committed, it is not p .....

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als at the instance of the State Government by the Public Prosecutor in those matters are also in order. ( 14. ) This brings us to the second point which arises in the present appeal. The conviction of the accused is Under Section 135 (ii) read with Section 135-A of the Customs Act. This is an offence where the property discovered is less than ₹ 1,00,000/ -. No minimum sentence has been prescribed though the offence is punishable with imprisonment for a term which may extend to three years .....

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