TMI Blog1983 (8) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... inal complaint was lodged against the petitioner and one Manju Bibhar. The Magistrate after taking cognizance tried the case. 3. The defence of the accused was one of denial. 4. Prosecution examined five witnesses of whom P.W. 1 is the Assistant Collector of Customs; P.W. 2 is the Inspector of Customs; P.W. 3 is the interpreter engaged at the time of interrogation for obtaining the statement of accused Manju Bibhar; P.W. 4 is the Superintendent of Central Excise who had recorded the statement of Manju Bibhar and P.W. 5 is a witness to the seizure of the 22 watches. The learned Magistrate on consideration of the materials on record came to hold that the prosecution had been able to establish that 22 foreign watches were recovered from the possession of accused Md. Sakur. He also found that accused Manju Bibhar was an accomplice taking the major part in helping the accused Md. Sakur in procuring the contraband articles. The learned Magistrate, therefore, held that both the accused persons were guilty under Section 135 of the Act for having contravened the prohibitions contained in different sections of the Act and convicted them thereunder and sentenced Md. Sakur to undergo rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with, any goods which he knows or has reason to believe are liable to confiscation under Section 111, he shall be punishable- (i) ........................... (ii) In any other case, with imprisonment for a term, which may extend to three years, or with fine, or with both." Section 111 of the Act deals with confiscation of improperly imported goods. In this particular case we are concerned with Sections 111(d) and (p) of the Act since the accused persons are charged for violation of these two provisions. Clause (d) of Section 111 provides that when goods are imported or are attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under the Act, or any other law for the time being in force, they are liable to confiscation. Clause (d), therefore, applies in three situations, namely, (i) when the goods have already been imported, or (ii) when the goods are being attempted to be imported, or (iii) when the goods are found within the Indian customs waters for the purpose of being imported. In the facts of the present case, according to the prosecution, the goods had alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se appears to have contravened the provisions of Sections 11C, 11D, 11E and 11F as well as Section 111(d) and (p) of the Act. 9. Under section 137 of the Act, no court shall take cognizance of any offence under Sections 132, 133, 134 or 135 of the Act except with the previous sanction of the Collector of Customs. 10. A perusal of the charges framed by the learned Magistrate as well as the sanction given by the Collector will show that proper attention has not been bestowed to the facts involved as well as to the provisions of law. There has been no charge for violation of Sections 11C, 11D, 11E and 11F and on the other hand, charge is for an offence under Section 11. It is to be stated that Section 11 is in Chapter IV and section 11A is in Chapter IV-A. The charges framed by the Magistrate is quoted below : "I, Madhuri Pattnaik, S.D.J.M., Bargarh, hereby charge you (1) Mohammed Sakur (2) Manju Bibhar as follows :- That you on or about the 22nd day of June, 1976, at 7 P.M. at your shop at Bargarh town were procuring and in possession '.of 22 foreign-made watches said to have been imported into India in contravention of the provisions of Section 11 and Section 111 (d) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, I, Shri H. Vumkhawthang, Collector of Central Excise and Customs, Bhubaneswar Collectorate, Bhubaneswar, in exercise of the powers conferred upon me under Section 137 of the Customs Act, 1962, do hereby authorise Shri P.N. Sarangi, Assistant Collector of Central Excise and Customs, Sambalpur Division, Sambalpur, to file a complaint in writing for offence under the Customs Act, 1962, against the aforesaid person before the jurisdictional Sub-Divisional Judicial Magistrate, -Bargarh Orissa." A bare perusal of the sanction would show that the Collector has sanctioned for contravention of an offence under Section 11. There has been no sanction for contravention of Sections 11C to 11F or section 111(d) and (p) of the Act. There is no contravention of section 11. In fact, Section 11 is merely an enabling provision authorising the Central Government to issue notification prohibiting import or export of goods of any specified description for the purposes enumerated in sub-section (2) of the said section. The Act does not prescribe any particular form of sanction, but the sanction must itself show that the concerned authority had full knowledge of the facts upon which the accused i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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