Appeal for enhancement of sentence held incompetent.

Ratnavel Pandian, J.

All the above appeals are listed before us in pursuance of the reference made by Maheswaran, J., in Criminal Appeal No. 688 of 1976, disagreeing with the view expressed by Suryamurthy, J., inAssistant Collector of Central Excise, Vellore Division, Vellorev.R. Padmanabhan(judgment of this Court in Criminal Appeal No. 808 of 1976 dated 20th December, 1979), on the question whether the officer of the customs department would be an agency empowered to make investigation into an offence under the provisions of the Customs Act, within the meaning of Section 377(2) of the Code of Criminal Procedure and whether an appeal preferred at the instance of such an officer on the ground of the inadequacy of the sentence awarded, is maintainable.

2.Before adverting to the important legal question raised before us, the brief facts of these four appeals, in which the same question of law is involved, may be stated.

3.Criminal Appeal No. 688 of 1976. - This appeal arises out of the judgment made in C.C. No. 3336 of 1974 on the file of the Chief Metropolitan Magistrate, Madras, convicting accused 1 and 2 therein under Section 135(b)(ii) of the Customs Act and sentencing each of them to pay a fine of Rs. 2, 000 in default to suffer rigorous imprisonment for six months and further convicting both of them under Rule 126-P(2)(ii) of the Defence of India Gold (Control) Rules, 1962, for contravention of Rule 126-E of the Rules, and sentencing each of them to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 2, 000 in default to suffer rigorous imprisonment for six months. Before the trial court, there were five accused, of whom accused 3 to 5 were acquitted.

4.The gist of the accusation against the five accused was as follows : Accused 1 was a dealer at Pondicherry and he used to purchase gold bars of foreign origin from Messrs Kanyalal and Co. at Chintadripet, Madras, of which Accused 2 and 3 were partners and accused 4 and 5 were persons assisting accused 2 and 3 in the business. The Central Excise officials arranged for the surveillance of Kanyalal and Co., and of the residential premises of the second accused. On 12th February, 1968, the first accused was intercepted by the Central Excise officials on surveillance duty, on his being found moving in a suspicious manner in the premises of the said Kanyalal and Co. A search of the person of the first accused conducted by P. Ws. 1 and 7, the Inspector and Superintendent of Central Excise C.I.U., Madras had resulted in the recovery of 10 bars of gold of foreign origin (M.O.I, series) which were found kept concealed in a paper packet tied to the dhothi of accused 1 in his waist. Accused 1 was taken to the nearby Tripurasundari Silk House where he was detained. P.W. 1 then proceeded with his party to the residence of the second accused and searched his house on the strength of a search warrant, exhibit P. 5, and seized 15 bars of gold of foreign markings ("Johnson Mathey") (M.O. 2 series) kept above the mattress and below the pillow, under a mahazar, exhibit P. 6. He also recovered an aluminium box, M.O. 4, containing new gold jewellery of different varieties in commercial quantities, weighing 3343 grams (M.O. 5 series) found kept in plastic boxes, 34 in number (M.O. 6 series), and cash of Rs. 18, 162. According to the prosecution, neither of accused 1 to 5 had any permit, licence or any other document to prove the licit origin and legal acquisition of the said gold (M. Os. 1, 2 and 5 series) valued at Rs. 64, 502 in all, which were prohibited items of import and which were dutiable goods. Therefore, on the reasonable belief that the said gold items were smuggled, they were seized and accordingly the accused, as per the prosecution case, were knowingly concerned in keeping concealing, transporting or dealing with the said gold items, having reason to believe that they were liable to confiscation under Section 111 of the Act.

5.The first accused was taken