V.D. Gyani, J.
1. This is an appeal against acquittal. The accused-respondent has been acquitted of charges under Section 3 and 4A of the Import and Export (Control) Act, 1947, Clauses 3 of the Import (Control) Order, 1955, and under Section 11 read with Section 135(b) of the Customs Act, 1962.
2. It was on 8-10-1973, on the basis of intelligence collected by the Central Excise Officers, a vigil was kept on the godown of M/s. Roshan Transport and Forwarding Agency, Jawahar Marg, Indore. The accused arrived at the office of the aforesaid Transport and presented a lorry receipt, and after completing other necessary formalities, took delivery of a package. Jyoti Silk Factory was the consignor while the consignee's name as given in the lorry receipt was Shah Babubhai Manakchand, Indore, but it was the accused-respondent who had taken delivery of the package.
3. There was intelligence information that the package contained, contraband goods the accused was questioned about it, who admitted in presence of Panchas that --the package contained foreign made synthetic fabrics. On opening the consignment, six hundred yards of synthetic fabric of Japanese make and origin, valuing at Rs. 9,000/- was found and seized in presence of the Panchas.
4. Statement of the accused was recorded under Section 108 of the Customs Act. The accused admitted many incriminating facts in his statement. The synthetic as seized was confiscated by the Assistant Collector (Preventive) Central Excise, Nagpur, an adjudication order was passed by him.
5. After obtaining necessary sanction, the accused was prosecuted for the above offences. The trial Court, however, acquitted him. Hence this appeal.
6. Shri Mukati, learned counsel appearing for the appellant, has raised the following points:--
(1) That the trial Court was wrong in following the judgment of this Court in Dwarkdas v. Union of India, Criminal Revision No. 516/77, which has been set-aside by the Supreme Court on the point of sanction.
(2) The prosecution has not been properly appreciated by the trial Court arid ignoring the statements recorded under Section 108 of Customs Act, particularly that of the accused.
(3) The trial Court was wrong in drawing an adverse inference against the prosecution for not examining Thelawa-Hand cart puller, in whose Thela or Hand cart the accused had loaded the package.
7. Shri Upadhyay, learned counsel for the accused-respondent on the other hand contended that the acquittal is based on proper appreciation of evidence as such, does not call for any interference. He also submitted that mere possibility of taking a different view of the evidence on record would not justify interference by this Court.
8. Before proceeding to deal with the rival contention advanced by the learned counsel, it would not be out of place to note some of the salient findings recorded by the trial Court. The trial Court has found:--
(1) The prosecution has failed to establish as to who had consigned the package in question and who was the consignee. No evidence was either collected or adduced to establish the identity of these persons.
(2) The Panchnama, Ex. P-1, does not show that the excise personnel had seen the accused personating the lorry receipt or that they had any information about him.
(3) The distance between the transport company's office and its godown being 50 to 60 yards, as deposed to by Manoharlal (PW-5) rendered the testimony of other prosecution witnesses, claiming to have seen the accused going for taking delivery of the package, unreliable because of the distance between the godown and the office.
(4) The Hand-cart puller on whose Thela the package was loaded could have been the most reliable witness, on the point as to who got it loaded, had not been examined by the prosecution. His statement was also not recorded during investigation although he was admittedly there.
(5) According to the prosecution case the accused had signed on number of papers at the transport office, but no attempt was made to prove those signatures so as to establish the identity of the accused.
(6) Ext. P-2, P-3 and P-4 do not mention the name of the accused.
(7) No evidence was adduced by the prosecution to prove that the fabric in question was foreign made.
(8) Prosecution failed to establish any link between the two labels, Articles F-1 and F-2 recovered from the house of the accused and the fabric found in the package.
(9) As regards statement of the accused recorded under Section 108 of the Customs Act, the trial Court has observed that PW-1, Timothi who is said to have recorded the statement, admitted that the statement was in fact recorded by Inspector Joshi (PW 3). The trial Court refused to act on this statement recorded under Section 108 of the Customs Act for two reasons:
(i) there was no independent witness, while recording the statement; and (ii) the accused stated in his statement that he was coerced to make a statement. It was not proved to be voluntary, and above, all the sanction for prosecution, Ex. P-13, has been held to be invalid.
9. Coming to the arguments of Shri Mukati on the point of sanction, even if the order passed by this Court in Criminal Revision No. 516/77, Dwarkadas v. Union of India, is ignored, as it ought to be, since it has been subsequently set aside by the Supreme Court, the trial Court, it appears, must not have been apprised of this fact. But even ignoring the aforesaid order passed in criminal revision, and excluding from its consideration, the sanction for prosecution, Ex. P-13 is not saved from the infirmity pointed out by the trial Court. As has been noted, the basic facts constituting the offence were not placed before the sanctioning authority at the time of according sanction, the order does not reflect the essential facts constituting the offence having been considered by the sanctioning authority. It is these infirmities which affect the validity of the sanction order and not merely because of the fact that an. order passed by this Court in Criminal Revision No. 516/77, Dwarkadas v. Union of India, and subsequently set aside by the Supreme Court had been taken into consideration by the trial Court. Excluding it altogether from consideration, yet the result remains the same in view of the infirmities the sanction order suffers from.
10. So far as the appreciation of evidence is concerned, Shri Mukati has of course pointed out few such errors on the part of the learned Judge of the trial Court, for example:--
(1) non-consideration of evidence of Umashankar Bhatt (PW 2) as regards the seizure of labels Articles F-1 and F-2;
(2) non-consideration of evidence of A.C. Timothi (PW 1) about his presence when the accused is said to have presented consignee's copy and the octroi receipt; and
(3) Disbelieving prosecution witnesses on account of contradictions and omissions of a minor nature obtaining in their testimony.
11. Appreciation of evidence is essentially a matter for the trial Court. It is not to say or suggest that the appellate Court cannot or should not reapprise evidence but ordinarily unless some such unreasonably of view or perversity of approach on the part of the trial Court is pointed out. Taking a different view of the evidence on reappraisal thereof is not permissible in an appeal against acquittal. Shri Mukati invited attention to that part of Thimothi's statement wherein he has stated that it was in his presence that the accused had produced the Octroi receipt, but the witness confronted with the Panchanama Ex. P-1, said to have been prepared on the spot which contained a recital to the effect that an Excise Officer had detained a man on the road opposite the Transport Company's Office and the witness had admitted this recital to be correct. In view of this apparent contradiction, if the trial Court, who had the opportunity of seeking the witness deposing has not believed him, really speaking no fault can be found with the appreciation of evidence.
12. Taking other example of misappreciation of evidence, Shri Mukati learned counsel cited the example of labels recovered from, the house of the accused. The trial Court did not consider it enough unless the said labels were connected with the packages in question. Recovery is a circum-stance which can be interpreted either way. At any rate, it does not unmistakable point to the guilt of the accused. He has denied in his statement any such recovery of labels from his house. The search memo Ex. P-11, was pre-pared by Inspector Joshi (PW 3). Neither Joshi nor Timothi (PW 1) state in their evidence, from which particular part of the house the said labels were recovered. None of the independent attesting witnesses to the search-memo, Ex. P-11, has even been examined by the prosecution. In these circumstances, the view taken by the trial Court cannot be said to be unreasonable and no legitimate criticism can on that account be levelled against the approach of the trial Court.
13. The other grounds, as noted above regarding proof of the fabric being foreign made, or lack of evidence to establish identity of the accused on the basis of signatures made by the accused at the Transport Company's Office and the Octroi Office, yet prosecution failing to adduce any evidence, in that behalf, are relevant factors, arid the trial Court appears to be justified in considering the lapses on the part of the prosecution, and draw its own conclusions, which in the circumstances of the case are quite justified.
14. Shri Upadhyaya, learned counsel appearing for the respondent has placed reliance on the following decision on the point of presumption and reasonable belief:-- (1984) 15 ELT 400: (1984 Tax LR 2564) (All); (1988) 19 ECR 486 (Andh Pra); 1970 Cri LJ 1305 (Guj) and 1985 Cri LJ 324 (Guj). To my mind, it is not necessary to deal with these decisions, in view of the clear evidence on record.
15. For the foregoing reasons, this appeal deserves to be dismissed and is accordingly dismissed. The respondent is on bail, his bail- bonds stand discharged.