R.B. TIWARI Vs. RAJESH KALLAJI CHOUDHARY

JUDGEMENT

(1.) THIS Appeal is filed by the Assistant Collector of Customs (P) questioning the adequacy of sentence of rigorous imprisonment for five months with a fine of Rs. 30,000/ - imposed upon the appellant for the offence punishable under Sections 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act by the learned Chief Metropolitan Magistrate, Esplanade, Bombay by his Judgment dated 10th January, 1994. Memo of Appeal shows that the Appeal is presented by Mr. R.B. Tiwari, Assistant Collector of Customs (P), who is shown as appellant. Memo is signed by Special Public Prosecutor for Union of India. Notes of Memo of Appeal show that the Judgment was delivered on 10th January, 1994. Application for certified copy was filed on the same date. A copy of Judgment became available on 7th April, 1994 and Appeal itself was filed on 22nd June, 1994. I have heard the learned Special Public Prosecutor for the appellant, the learned Counsel for Respondent No. 1 (Original accused) and the learned APP for Respondent No. 2 State. As rightly pointed out by the learned counsel for Respondent No. 1, 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.) THE learned Counsel for Respondent No. 1 also pointed out that Article 115(b) of the Limitation Act provided for limitation of only 60 days for appeal from any other sentence or order, not being an order of acquittal. In this case, even according to the learned Spl. P.P. for Union of India, who drafted an Appeal, a copy of Judgment became available on 7th April, 1994, however, Appeal was filed on 22nd June, 1994 that is beyond a period of 60 days which is described under Article 115(b) of the Limitation Act even on this count Appeal is barred. In view of this, Criminal Appeal is dismissed.