The prosecution must prove possession and recovery of contraband goods, and the validity of the sanction order. The evidentiary value of the accused's voluntary statement under Section 108 of the Act should be considered.

N. Ananda, J.— The Respondent was arrayed as accused in C.C. No. 14/1989, on the file of I Addl. Chief Judicial Magistrate, Dakshina Kannada. He was tried and convicted for an offence punishable under Section 135 of the Customs Act, 1962 (for short, 'the Act') and also for an offence punishable under Section 85(2) of the Gold Control Act, 1968. The Respondent challenged the judgment of conviction in Criminal Appeal No. 149/1999. The learned Judge of I-appellate Court by judgment dated 12-3-2001 accepted the appeal and acquitted the accused of an offence punishable under Section 135 of the Act so also of an offence punishable under Section 85(2) of the Gold Control Act. Therefore, the Appellant namely Assistant Collector of Customs (Preventive), Mangalore, has filed this appeal.

2. I have heard Sri Y. Hariprasad, learned Senior Central Government Standing Counsel for Appellant and Sri P.V. Gunjal, learned Counsel for Respondent/accused. I have been taken through the evidence and findings of trial Court as also of I-appellate Court.

3. The trial Court accepting the evidence adduced by the complainant has held that on 19-5-1987 at about 3.10 a.m. at K.S.R.T.C. bus stand, Mangalore, the accused was in possession of 11 gold biscuits, one gold chain and one gold buckle, in all weighing 1,515.850 gms. The said articles were of gold metal and they were of foreign origin and the accused had reasonable belief that they are liable to be confiscated under Sections 111 & 113 of the Act. The aforestated quantity of gold was seized by the customs officials. The accused was in possession of smuggled goods and punishable under Section 85(1)(2) of the Gold Control Act, 1968.

4. The learned Judge of I-appellate court reversed the findings of trial Court by holding:

(I) The complainant/prosecution has failed to prove aforestated quantity of contraband was of gold metal and CW. 9 & CW. 10 (goldsmiths), who had tested and issued certificates, were not examined before the trial Court. The sanction accorded to prosecute the accused is invalid in the eye of law.

(II) The prosecution has failed to prove possession and recovery of aforestated quantity of gold articles from possession of the accused.

5. During pendency of the appeal, learned Senior Central Government Standing Counsel appearing for Appellant has made an application under Section 391 Code of Criminal Procedure, for examination of CW9-S anath. K and CW.10-K. Ramesh Acharya, who had tested samples of contraband and certified the samples of gold and purity of gold.

6. The learned Counsel for Respondent/accused has filed objections, inter alia contending that there are no grounds to entertain the application and valid reasons are not assigned for non-examination of CW9 & CW10 before the trial Court, at this stage after a period of 21 years, it would be an exercise in futility.

7. The learned Counsel for Respondent/accused has raised preliminary objections regarding maintainability of the instant appeal by making following submissions:

The Customs Department is an agency empowered to make investigation under the Customs Act, 1962. In the circumstances, the instant appeal ought to have been filed by the public prosecutor on a direction issued by the Central Government.

The learned Counsel for Respondent/accused has placed reliance on the following judgments:

(I) Mansoor and Others Vs. State of Madhya Pradesh, AIR 1971 SC 1977

(II) State of Maharashtra Vs. Jethmal Himatmal Jain and another, (1994) 4 BomCR 103

(III) Khemraj Vs. State of Madhya Pradesh, AIR 1976 SC 173

8. As against this, the learned Senior Central Government Standing Counsel appearing for the Appellant has relied on the judgment of the Supreme Court, reported in Assistant Collector of Central Excise, Madras Vs. V. Krishnamoorthy and Others, AIR 1997 SC 1904 (in the case of Assistant Collector of Central Excise, Madras v. V. Krishnamoorthy and Ors.), wherein it is held:

3. The debate as to whether the Assistant Collector of Central Exc