JUDGMENT:- These proceedings relate to the prayer of enhancement of sentence passed by the Chief Metropolitan Magistrate, Bombay, on 27-2-1978, against the 1st respondent Andorsen Finna Kay Ove.

2. According to the case for the prosecution, during night between 31-12-1977 and 1-1-1978, the respondent-accused accompanied by another person reported at Santa Cruz Airport for a flight which was to leave Bombay for Copenhagen via London. When the accused produced his baggage consisting of two suit-cases, on examination, it was found that the suit-cases had concealed packets in which 7 kgs. of Hashis valued approximately at Rs. 9.000/-, was found. Necessary formalities of making the panchanama etc., were done and the accused was charge-sheeted. Sanction from the Additional Collector of Customs, Bombay, was obtained. At the trial the accused pleaded guilty. That plea was accepted. The learned Magistrate observed that the accused was a foreign national of Danish origin. There was a growing tendency amongst the foreigners to use drugs such as Hashis, Charas, Opium etc., and as such they make an attempt to smuggle such drugs. The accused was merely a carrier, as stated by him and considering these circumstances, the learned Magistrate felt that ends of justice would be met by sentencing the accused to suffer one week's R. I. and to pay a fine of Rs. 5,000/- i. d. three months R. I.

3. It seems as an under-trial prisoner, the accused was in jail and therefore, by reason of S.428 of the Cr. P. C. the substantive sentence of one week's R. I, was already suffered by him.

4. Initially, the revision petition was filed by the Assistant Collector of Customs Department for enhancement of sentence. It was said that the quantity of Hashis found is large enough to warrant imposition of a substantial sentence of imprisonment. A week's imprisonment was not enough as that was set off against the period of custody before trial. It was said that the sentence of six months at least should have been imposed upon him to deter him and others from committing such offence.

5. As the State of Maharashtra was a party to the revision petition, notice was served and the State has come in appeal, supporting the stand taken by the Customs Department. In the appeal Memo it is said that smuggling is an anti-social offence and it ultimately affects the economy of the nation, The offence committed by the respondent was also under S.38 of the Dangerous Drugs Act and hence he should have been strictly dealt with.

6. Maintainability of this appeal by the State, was a question for discussion. Here at the instance of the revision petitioner it was sought to be justified that learned advocate presenting revision petition could be viewed as a Public Prosecutor, directed by the Central Government under S.377 of the Criminal Procedure Code, to file proceedings for enhancement of sentence. S.377 deals with appeal by the State Government against sentence, Sub-sec. (2) of that section however, makes an exception that whenever investigation has been carried out by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal. Such an appeal has not been filed before this Court. We have the appeal at the instance of the State Government falling under sub-sec. (1) of S.377 and hence the point for determination is whether this is a valid appeal. The decision on the point depends upon the finding whether any other agency was empowered to make investigation under the Customs Act 1962. This point has recently been looked into by the Division Bench consisting of Deshmukh and Aggarwal JJ., when they decided Criminal Appeal No. 898 of 1974, on 31st Aug. 1977 : (1978 Cri LJ 845) (Bom) repelling the contention that under the Customs Act, 1962, an agency is created which is empowered to make investigation into an offence under the

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