The court established that the proper authorization of officers under the Customs Act is crucial for validating prosecution sanctions.

ORDER

Dated this the 01st day of November, 2023 This revision petition is filed under Section 397 read with 401 of Code of Criminal Procedure , 1973, challenging the correctness, legality and propriety of the order dated 05.07.2023. By that order the petition filed by the revision petitioners under Section 245 of the Code was dismissed. They are accused Nos.1 and 3 in C.C. No.592/2017 on the file of the Addl.Chief Judicial Magistrate (Economic Offences), Ernakulam.

2. C.C. No.592/2017 was initiated on a complaint filed by the Deputy Commissioner of Customs, Air Customs, Trivandrum. The accusation against the petitioners and their co-accused are the following:

2. On 26.10.2014 at around 4.45 A.M. the superintendent of Customs, Air Intelligence unit, International Airport, Trivandrum intercepted the 1st accused who had arrived by the Flight EK-522 at the Customs exit gate on the basis of a specific intelligence that a passenger arriving by Emirates Flight EK-522 from Dubai to Trivandrum would be trying to smuggle gold into the country by concealing on his person/checked in baggage. On examination of his travel documents, it was found that he was holding Indian Passport with No.K3486772 dated 12.03.2012. He was also in possession of boarding pass issued by M/s. Emirates from Dubai to Trivandrum by flight No. EK- 522 dated 25.10.2014 with seat No.17F, Electronic Ticket Number ETKT1765853064943 and Indian customs declaration form. On verification of the Indian customs declaration form, the ofÏcers noticed that the Accused No.1. did not declare anything dutiable. But from his trolley bag, the yellow metal in the form of bars, square in shape wrapped in black coloured insulation tape were found and on examination it was found to be 24 carat gold weighing about 1 kg each. The total value was Rs.94,97,670/- and the total weight was 3.479 Kg. He attempted to smuggle gold to evade duty. Besides the 2nd accused also smuggled gold in a similar way;

both at the instance of accused Nos.3 and 4.

3. Heard the learned counsel appearing for the petitioners and the learned Standing Counsel for the respondent.

4. The contention of the petitioners is that previous sanction as contemplated in Section 137 of the Customs Act , 1962, is essential for taking cognizance of the alleged offences. As per Section 137 the Principal Commissioner of Customs or Commissioner of Customs alone can accord sanction. Whereas, in this case, the authority which accorded previous sanction is the Commissioner (Central Excise, Customs and Service Tax) Thiruvananthapuram. In the view of the learned counsel, the said ofÏcer was not empowered to exercise the powers under Section 137 of the and therefore the sanction in the instant case is illegal.

5. The learned counsel for the petitioners submits that when such specific authorities are empowered to accord sanction; even by excluding superior ofÏcers like Principal Commissioner of Customs or Chief Commissioner of Customs, the sanction accorded in this case by an ofÏcer who held only charge and not by the ofÏcer empowered by the statutory provision is illegal.

6. The learned Standing Counsel for the Customs on the other hand would submit that the Central Government by notification dated 07.03.2002 notified the Commissioner of Central Excise to be the Commissioner of Customs and therefore the ofÏcer accorded sanction has every empowerment under Section 137 of the Customs Act . To that, the learned counsel for the petitioners would answer that the Central Government cannot exercise the powers of empowerment of various ofÏcers of customs for, Section 4(2) enables only the Central Board of Indirect Taxes and Customs to authorise ofÏcers to hold various ofÏces and not the Central Government. I am unable to accept the said contention. Section 4(2) governs only authorisation of the ofÏcers enlisted therein by the Board to appoint ofÏcers below the rank of Assistant Commissioner or Deputy Commissioner of Customs; whereas notificat