JUDGMENT
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 on the 19th March, 1974 at about 9 a.m., his bed room 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. Ill were obtained as part of gift during marriage.
3. 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.
4. 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 upon him under the Act. Although it has not been specifically provided in the statute that filing of a complaint for prosecution for offences under Act is a part of the duty conferred or imposed upon him, still notwithstanding such omission it can be safely held that filing a complaint for prosecution under the Act is very much a part of the duty conferred upon officers of Customs and in exercise of such power, an Assistant Collector of Customs is quite competent to file a petition of complaint. In fact in Remo Morgani’s case (supra) submission on his behalf that it was not necessary for Sri A. M. Sinha to file the petition of complaint in a representative capacity and that he, as a public servant could file it on his own in discharge of his official duties was accepted by their Lordships.
5. Now it has to be decided whether the petition of complaint in the instant case has been vitiated as in the cause title, Union of India has also been mentioned., After careful consideration of this aspect of the case, we are firmly of the opinion and accordingly, held that at the most, it is ah error or irregularity which is cured by Section 465 Cr. P.C. It is no doubt true that this section inter alia provides that no finding, sentence or order by a competent Court shall be reversed or altered on appeal, revision etc., on account of any error or irregularity in the complaint unless it causes a failure of justice. But it cannot be successfully urged that this provision cannot be invoked in a case in which the Magistrate has overlooked an irregularity and recorded an order of acquittal. In an old case, Zahiruddin v. Emperor AIR 1947, PC 75 such a narrow view was taken by the Privy Councl while considering the provisions of Section 537 of Code of Criminal Procedure, 1898 which corresponds to Section 465 of the present Code. It is however found that in Chaturdas Bhagawandas Patel v. The State of Gujarat, the acquittal of the appellant of two heads of charge including one under Section 161/34 I.P.C. was reversed by the High Court who convicted him under Section 161 I.P.C. and also on another head. This was assailed before the Supreme Court inter alia on the ground that no charge under Section 161 I.P.C. simpliciter was framed against him. This contention was repelled by the Supreme Court which upheld the conviction made by the High Court with the observation that in any case the irregularity stood1 cured undef Section 537 Code of Criminal Procedure, 1898. Thus even where an error or irregularity was overlooked by a trying Magistrate resulting in the acquittal of an accused, the interference by the High Court and conviction by it was upheld by the Supreme Court by invoking the provisions of Section 537 Code of Criminal Procedure, 1898 corresponding to Section 465 of the present Code. Looking to the provisions of Article 141 of the Constitution of India it must be held that a decision of the Supreme Court must prevail over a contrary decision of the Privy Council and the law declared by the Supreme Court which is binding on this Court is that the provisions of Section 465, Code of Criminal Procedure, 1973 can be applied by an appellate Court in an appeal against acquittal.
6. We are also of the view that the respondent was not at all prejudiced by the error or irregularity in the petition of complaint noted above. In judging a question of prejudice, Courts have always acted with a broad vision and looked to the substance rather than to technicalities and the main concern was to find out whether the accused had a fair trial, that he knew what for he was being tried, that the main facts sought to be established against him, were explained to him fairly and clearly and that he had a full and fair chance to defend himself. Applying such test in the instant case, the irresistible conclusion which follows is that the respondent was not prejudiced and as such there was no failure of justice.
7. For the reasons stated above, it is held that the order of acquittal recorded by the Court below solely on the ground of non-maintainability of the petition of complaint cannot be sustained. Regarding merits of the case as already noted, the learned Magistrate has found on evidence that the gold bar- Ext. I was of foreign origin and in respect of this article, he has committed an offence punishable under Section 135(b)(ii) of the Customs Act and in respect of this article as well as the gold stick Ext. II and cut pieces of gold Ext. IV, he has committed a offence punishable under Section 85(1)(ii) of the Gold (Control) Act, as these were all primary gold. The respondent having been ultimately acquitted, he had no opportunity to challenge this finding in appeal though understandably he could come up in revision against such finding and succeed if he could establish that there was incorrectness irregularity or impropriety committed by the Court below in arriving at such finding causing failure of justice. However, since an appellate judgment must be independent and stand by itself and not be supplementary to the judgment of the trial Court, we had decided to consider ths merits of the case as well. Mr. Roy, learned Advocate for the appellant has fairly conceded that the Gold (Control) Act, having been repealed no conviction of the respondent for any offence punishable under this Act, is sustainable at this stage. Therefore, we have only to consider whether the respondent is liable to be punished under Section 135(b)(ii) of the Customs Act for alleged recovery of the gold bar Ext. I from his possession.
8. It has been pointed out that according to the respondent’s statement under Section 108 of the Customs Act Ext. 7, the gold bar was in the possession of his mother and he has stated during his cross-examination under Section 313, Code of Criminal Procedure that the key of the almirah was supplied by his mother and it was found not in the almirah but in the box of his mother. There is nothing on the record to land any assurance to such statement and on the other hand there is overwhelming evidence on record to show that the gold bar Ext. I was recovered from an almirah in the bed room of the respondent which was opened by himself. This also fits in with his statement under Section 108 of the Customs Act Ext. 7. It was. of course his defence that he did not make it voluntarily but it was extorted from him. This again appears to be a defence taken just for the sake of it and does not raise any doubt about the truth of the complainant’s case. He has not ventilated his grievance about the supposed extortion of the statement from him to anybody till he gave out for the first time during the trial. In this state of record considering the evidence, in all its bearing, we have no doubt that the gold bar Ext-I was very much recovered frum the possession of the respondent.
9. Sri B. K. Chatterjee P.W. 2, a Deputy Bullion Registrar of Govt. of India Mint has deposed that he had drawn a sample weighing 8.7 gms. from the gold bar Ext. I had sent it to the Assay Department for chemical analysis which seems to have been received by M. G. Roy P.W. 3, an Assistant Assay Superintendent of the Govt. of India Mint and after making an analysis, he forwarded the result to the Mint Master arid on its basis a certificate Ext. 3 was issued. He found the gold bar Ext. 1 to contain gold of fineness 999.0 and it was his evidence that in our country gold of fineness above 995.0 cannot be obtained. There is nothing on the record to suspect the result of analysis or his evidence that the gold of fineness above 995.0 cannot be obtained in our country. It is also in the evidence of Sri S. Debnath P.W. 8, who was in the raiding party that the gold bar Ext. I bore foreign mark. In view of such evidence, we hold that the gold bar Ext. I was indeed of foreign origin.
10. Now reference may be made to Section 123 of the Customs Act which as specifically lays down that it applies to gold. Sri S. Debnath P.W. 8 had deposed that the gold bar Ext. I and other items of gold were seized under a reasonable belief that these were smuggled goods. Even though foreign inscription on gold is not a conclusive evidence that it is of foreign origin still it can be the basis of a reasonable belief that it has been smuggled and therefore, there is no reason to reject the evidence of S. Debnath P.W. 8 that the gold bar Ext. I was seized in the reasonable belief that it was smuggled. Once this position is accepted, it was clearly the . burden of the respondent to prove that it was not smuggled as laid down in Section 123 of the Customs Act. This burden has not been discharged at all. Therefore, it should be held that the gold bar Ext. I was, infact, smuggled into the country and the respondent acquired, possession of it presumably with the knowledge that it is liable to confiscation under Section 111 of the Customs Act, the presumption arising under Section 138A of the Act. In other words, the ingredients of the offence punishable under Section 135(1)(b)(ii) are proved beyond any shadow of reasonable doubt.
11. A question has arisen whether the order of acquittal of the respondent recorded by the learned Magistrate some time in 1981 should be upset at this stage. It is no doubt true that several years have elapsed since then for which, however, the prosecution was in no way responsible. Justice means justice not only to an accused but also to the state and to the community at large as an economic offence is involved in this case. In the State of Gujarat v. Mohan Lal and Anr., an order of acquittal of an accused who was charged with an offence under Section 85 of the Gold (Control) Act alleged to have been committed sometime in 1976 was affimed by the High Court in November, 1976 which was set aside by the Supreme Court in 1987 with an. opportunity to the prosecutor to adduce additional evidence and a direction to the High Court to proceed further in the matter. Their Lordships of the Supreme Court noted that the rejection of the prayer for adducing additional evidence by the High Court on the ground that six years had passed since the commission of the alleged offence was no good ground for refusing to act in order to promote the interest of justice in an age when delays in the Court have become a part of life and order of the day. Their Lordships even observed that the ends of justice are not satisfied only when the accused in a criminal case is acquitted and the community acting through the state and the public prosecutor is also entitled to justice and its cause deserves equal treatment and cannot be treated with disdain, and further that the entire community is aggrieved if the economic offenders who ruin the economy are not brought to book. Thus upon such consideration, Their Lordships set aside an appellate order of acquittal after about 11 years relating to an alleged offence committed about 1.7 years back. Therefore, it does not appear to us that the passage of time stands in the way of reversing the order of acquittal in the instant case.
12. On the aforesaid premises, the acquittal of the respondent under Section 135(1)(b)(ii) of the Customs Act is set aside and he is found guilty of the offence punishable under this section in respect of the gold bar Ext. I. He is accordingly convicted and sentenced to pay a fine of Rs. 2,500/-in default to suffer rigorous imprisonment for three months. The acquittal of the respondent for the offence under Section 85(1)(ii) of the Gold (Control) Act remains undisturbed.
13. The respondent is directed to pay the fine within two months from this date in default of which the learned Magistrate shall take step to secure his arrest and commit him to prison.
The appeal is thus disposed of. Record be sent down at once.
P.K. Banerjee, J.
14. I agree.