State Of Maharashtra vs Vijayaraj Prithviraj Bafna
2001 Latest Caselaw 840 Bom

JUDGMENT

Rajiv Mohite, J.

1. A raid by the Customs and Central Excise Officers of Dahanu Circle, conducted on 19.8.1973 on the premises of King Motel at Gholwad led to the recovery of some smuggled goods and resulted in the filing of a private complaint by the Assistant Collector of Customs against the present Respondent (Original Accused No. 1 Vijayraj P. Baphana) and the two Respondents in Criminal Appeal Nos. 864 of 1985 (Original Accused No. 2 Jayantilal Jain) and Criminal Appeal No. 863 of 1985 (Original Accused No. 3 Keshavbhai Patel) alleging the commission of offences punishable under Section 135(a) and (b) of the Customs Act, 1962 and Section 5 of the Imports and Exports Act, 1947.

2. The said Private Complaint filed on 24.5.1976 by Mr. S.C. Choudhary, Assistant Collector, Customs and Central Excise, Bassein, was accompanied by a copy of the necessary sanction for prosecution under Section 137 of the Customs Act.

3. At the stage of trial, the prosecution examined in all three witnesses to prove its case. P.W. 1, Waman Trimbak Apte, the Superintendent of Customs at Dahanu a member of the raiding party, and who had also recorded statements of Accused under Section 108 of the Customs Act. P.W. 2 Dinanath Shantaram Warekar, also Superintendent of Customs who had recorded the further statements of the accused No. 1 under Section 108 of the Customs Act and P.W. 3 Tukaram Narayan Raut, a panch at the time of the raid.

4. The complainant Shri S.C. Choudhary did not step into the witness box, though cited as a witness. The witnesses examined did not speak about the grant of sanction vide the Sanction Order and the prosecution case was closed.

5. It appears from the record that after recording of the statements of the Accused under Section 313 of the Code of Criminal Procedure, the arguments were heard on 3.1.1983, the matter was adjourned for Judgment.

6. On 31.3.1983 when the case was listed for Judgment it was realized that the Sanction Order was not admitted in evidence. On that day it was exhibited in evidence and marked Exhibit 110. The Judgment was delivered on the same day and accused No. 1 was convicted for the offence punishable under Section 135(a) and (b) of the Customs Act, 1962 and sentenced to undergo R.I. for three years and to pay a fine of Rs. 5000/- in default to suffer R.I. for 1 year as also for an offence punishable under Section 5 of the Imports and Exports (Control) Act, 1947 and to undergo R.I. for 1 year and to pay a fine of Rs. 5000 in default to suffer R.I. for 4 months. Accused Nos. 2 and 3 were also convicted on the same charges and sentenced to suffer R.I. for one year and to pay a fine of Rs. 5000 each in default to suffer R.I. for six months each and to pay a fine of Rs. 2500 each in default to suffer R.I. for 2 months each on the second charge.

7. In his judgment, the Trial Judge negated one of the arguments advanced on behalf of the accused to the effect that the Sanction Order had not been proved by taking recourse to Section 139 of the Customs Act, which raises a presumption regarding the truth of contents, signature and handwriting of document produced or seized and tendered by the prosecution in evidence. He held that the said sanction was not required to be formally proved as it was an annexure to the complaint of which no formal proof was required. He further held that in view of the Section 139, he was bound to presume that the contents of the Sanction Order were true and that the same was signed by M.S. Kanwal, Additional Collector (Preventive) Central Excise, Bombay.

8. In three separate appeals, being Appeal Nos. 14 of 1983, 16 of 1983 and 18 of 1983, filed by the Accused before the Sessions Judge, Thane, the Appellate Court after hearing both sides passed a common reasoned Order, dated 25.12.1984, holding that the Trial Court was wholly wrong in admitting and reading in evidence the Sanction Order, with the aid of Section 139 as the presumption raised therein was rebuttable and as the accused had no opportunity in the Lower Court to raise their objections for the mode of proof adopted for the document and directing the prosecution to lead further additional evidence on the point of sanction. In compliance of this Order, dated 25.12.1985, the evidence of P.W. 1 (In appeal) i.e. of Dinanath Shantaram Warekar was led by the Prosecution. However, all the three appeals were allowed by a Common Judgment and Order dated 28.8.1985, passed by the Sessions Judge, Thane, holding that the Sanction order had not been proved properly or satisfactorily and hence, in view of Section 137 of the Customs Act, the Court could not take cognizance of the offence. He further held that under Section 6 of the Imports and Exports (Control) Act, 1947, cognizance of an offence punishable under Section 5 could only be taken upon a complaint made in writing by an officer authorized by the Central Government. He held that the complainant had not been examined and his signature on the complaint and authority to file the complaint had remained unproved. He set aside the conviction and sentence of all the accused.

9. Being aggrieved by the said order of acquittal, the State has filed the present and the two companion Appeals, which are for consideration before us.

10. We have perused the record and do not find anything perverse in the Order of the Appellate Court and the reasoning therein. The Sanction Order was signed by one M.S. Kanwal. He was not examined by the prosecution in the Trial Court or even in the Appellate Court, when the prosecution was given a second chance. Dinanath Shantaram Warekar, who was the Superintendent of Customs, was examined to prove the Sanction Order. He claimed that after the investigation was over he had sent the papers for investigation to the then Additional Collector (Preventive) Central Excise, Bombay Shri N.S. Tanwar. That when he was in service, he used to receive routine correspondence from Shri N.S. Tanwar and used to see his signatures on the correspondence received by him. He used to meet him while In service almost every week and had seen him signing various papers. He identified the signature of Shri N.S. Tanwar on such basis. In his cross-examination, he stated that he didn't remember the mode by which the papers were sent.

11. From the evidence of this witness, it is evident that he talks of grant of sanction by a person, named N.S. Tanwar, when in fact, the sanction order is signed by one M.S. Kanwal. The witness retired from service in 1983 and deposed in this case in 1985. It is evident that his memory relating to the name of the person who issued the sanction order had faded. Perhaps the witness was making a mistake relating to the name; but even after seeing the signature above the name of Mr. M.S. Kanwal, he categorically identified the signature to be of N.S. Tanwar. Consequently we feel that the conclusion drawn by the Appellate Court relating to the Sanction Order not being proved, is reasonable and correct. Besides the unexplained non-examination of M.S. Kanwal has deprived the defence of an opportunity to challenge the truth of the contents of the Sanction Order.

12. We are also not unmindful of the provisions contained in Section 465 of the Code of Criminal Procedure, 1973 which prohibits reversal of sentence on account of any error or irregularity in any Sanction for the prosecution. But the lack of acceptable proof of the very grant of sanction is an issue, which is different from an error or irregularity in a sanction the grant of which is proved. Such lack of acceptable proof strikes at the very root of the prosecution and cannot be said to be a mere error or irregularity within the meaning of Section 465 of the Code of Criminal Procedure, 1973.

13. We also find the reasoning relating to the acquittal for the offence under Section 5 of the Imports and Exports (Control) Order to be correct. While generally there is a presumption under Section 114 of the Evidence Act that an official act has been regularly performed, no presumption can be raised that the official act was actually performed. It has been held in number of decisions of the Bombay High Court, one of which is the case of Bhausaheb Tanvappa Mahajan and Ors. v. State of Maharashtra and Ors. where Madon J. after referring to earlier decisions of this Court, it observed as under:-

.... (1) Illustration (e) to Section 114 cannot and does not apply where the point at issue is not whether such an act was in fact performed.

The performance of an act of granting authorization or the nature of such authorization are questions of fact required to be proved in accordance with law, save and except when judicial notice can be taken under Sections 56 and 57 of the Evidence Act. It is only upon such proof that the Court may presume with the aid of Section 114, illustration (e) that the said act of grant of authorization was regularly performed.

14. In the result, this Appeal must fail and stands dismissed.