B.S. RAWAT Vs. JEETMAL ANNAJI JAIN

JUDGEMENT

(1.) THIS Appeal is filed by an Assistant Collector of Customs (P) questioning the adequacy of sentence of rigorous imprisonment for two months with a fine of Rs. 15,000/ - imposed upon the appellant for the offence punishable under Sections 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act, 1962 under Section 5 of the Import & Export (Control) Act, 1947 and under Section 85(i)(ii)(a) and 85(1)(iv)(a) of the Gold (Control) Act, 1968 by the learned Chief Metropolitan Magistrate, Esplanade, Bombay by his Judgment dated 14th October, 1993. Memo of Appeal shows that the Appeal is presented by Mr. B.S. Rawat, Assistant Collector of Customs (P), who is shown as the appellant. Memo. is signed by Special Public Prosecutor for Union of India. Notes of Memo of Appeal show that the Judgment was delivered on 14th October, 1993. Application for certified copy was filed on the same date. A copy of Judgment became available on 3rd November, 1993 and the Appeal was filed on 28th December, 1993. I have heard the learned Special Public Prosecutor for the appellant and the learned APP for Respondent No. 2 State. None for Respondent No. 1, though duly served. The Code of Criminal Procedure does not contemplate an Appeal being filed unless specifically provided in the Code. Section 377 of the Code of Criminal Procedure provides for Appeal by the State or Union Government against sentence. Sub -section (2) provides that in case of conviction on a prosecution launched by an agency employed to make investigation under the Central Government, the Central Government may direct the learned Spl. P.P. to prefer an Appeal. The question as to whether Assistant Collector of Customs (P) could prefer an Appeal against inadequacy sentence was considered by the Supreme Court in Assistant Collector of Central Excise, Madras v. V. Krishnamoorthy, reported at : 1997 (3) SCC 100 : 1997 (90) E.L.T. 285 (S.C.) and the Court held that no such appeal could be filed. In view of this, Appeal would have to be dismissed as incompetent.

(2.) IN view of this, Criminal Appeal is dismissed.