An irregularity in a complaint can be cured by section 465 Cr.P.C. if it does not cause any failure of justice.

A.K. Chatterjee, J.

1. THIS appeal by special leave under section 378(4), Code of Criminal Procedure is directed against the acquittal of the respondent who had faced a trial before a competent Magistrate on charges under section 135 (b) (ii) of the Customs Act, 1962 and section 85 of the Gold (Control) Act, 1968 on the allegations that 6n the 19th March, 1974 at about 9 a.m., his bedroom at premises No. 10, Tara Chand Dutta Street, Calcutta was searched by the officials of Calcutta Customs and a gold bar Ext. I, of foreign origin weighing 116.60 gms, a gold stick Ext. II, weighing 67.70 gms, eight pieces of sovereigns Ext. III weighing 63.55 gms and three pieces of gold Ext. IV weighing 21.30 gms. were recovered from an almirah, the key of which was produced by the respondent. As he could not explain his possession of gold of foreign origin and primary gold, it was seized under a seizure list Ext. 10 and on the same date he made a voluntary statement Ext. 7, under section 108 of the Customs Act wherein he admitted the search and seizure made by the Customs Officers as indicated above.

2. AT the trial, the respondent took the defence that the gold bar Ext. I, was purchased by his father and same was in possession of his mother while the gold stick Ext. II and the cut pieces of gold Ext. IV were obtained by melting ornaments of his wife and the sovereigns Ext. III were obtained as part of gift during marriage. The learned Magistrate on consideration of law and evidence adduced before him including the statement made by the respondent Ext. 7, has found that no offence was committed in respect of the sovereigns Ext. III but he was in illegal possession of the gold bar Ext. I, the gold stick Ext. II and three pieces of gold Ext. IV which were primary gold, the gold bar Ext. I being also of foreign origin. He was thus guilty of the offence punishable under section 135 (b) (ii) of the Customs Act and under section 85(1) (ii) of the Gold (Control) Act. He has however, recorded an order of acquittal holding that Sri T. K. Lahari, an Assistant Collector of Customs who had filed the petition of complaint representing the Union of India had no authority for such representation and therefore, there was no complaint in the eye of law. For such conclusion, he has relied upon the Bench Decision of this Court in Union of India v. Remo Morgani, Carlton Hotel, 1980(1) CHN 388.

3. THE decision relied upon by the learned Magistrate is clearly distinguishable, which was apparently overlooked by him and it has got no application in the instant case. In Remo Morgani's case (supra) the complaint was filed by one Mr. A. M. Singha, an Assistant Collector of Customs representing the Union of India and their Lordships appeared to have taken the view that since the said Assistant Collector of Customs was not authorised to represent the Union of India, his description in the petition of complaint as a representative of the Union of India was misleading, factually incorrect, illegal and not justified. In the case before us, it is found that the Assistant Collector of Customs Sri T. K. Lahari never described himself as representing the Union of India nor did he append his signature on the petition of complaint as such a representative but signed only with his official designation. Only in the cause title of the petition of complaint, it has been stated as follows: "Union of India, on the complaint of Sri T. K. Lahari, an Assistant Collector of Customs etc." In this state of record, we are of the opinion and accordingly hold that the instant complaint cannot be thrown out on the basis of the decision relied upon by the learned Magistrate. There is no doubt that in the instant case the complainant is Sri T. K. Lahari who is quite competent by virtue of his official position to file the complaint in discharge of his official duty. Section 5 of the Customs Act enables an Officer of Customs to exercise the power and discharge the duties conferred or imposed