Assistant Collector of Customs and Excise vs Gopal Saran

Vijay Kumar Verma, J.—Heard Smt. Sandhya Agarwal, amicus curiae, appearing for respondents-accused. Nobody is present for the appellant even in the revised list.

This appeal u/s 378 of the Code of Criminal Procedure (in short ''the Cr. P.C.), has been preferred by Assistant Collector Customs & Central Excise Bareilly against the judgment and order dated 31-3-1979 passed by City Magistrate Bareilly in case No. 504 of 1974 (Assistant Collector Custom and Central Excise Bareilly v. Gopal Saran and Anr.), whereby the accused-respondents Gopal Saran and Madho Saran have been acquitted of the offences punishable u/s 135(B) Indian Custom Act and Section 85 Gold (Control) Act.

After admission of the appeal, lower court record was summoned. In response to the letter sent by the office for sending lower court record, it has been reported by City Magistrate Bareilly vide his letter No. 48/Na.Ma.-2008, dated 18-8-2008 that the record of case No. 504 of 1974 has been weeded out on 8-11-1985. The Sessions Judge Bareilly was directed to get the record of the case reconstructed, but the record of aforesaid could not be reconstructed, as no paper of the case is available. Letter No. 309/09, Regd.-3 (A), dated 3-10-2009 of the CJM Bareilly shows that the City Magistrate has reported that no paper of the case is available in his office. The record of the appeal shows that certain letters were sent to the Central Excise Department Bareilly for making the papers of case No. 504 of 1974 available, but papers of the case has not been made available. Letter No. 1011/Na. Ma.-2009 dated 6-7-2009 of the City Magistrate Bareilly shows that Assistant Commissioner Central Excise Bareilly vide his letter No. 493-V.(M)(18) Legal/Misc/14 dated 10-6-2009 has reported that the record of the case being very old is not traceable in the office. Since no paper has been made available by the Central Excise Department either to the City Magistrate Bareilly or to the Chief Judicial Magistrate Bareilly, hence the record of the case could not be reconstructed.

It is submitted by the learned amicus curiae that in the absence of the lower court record, the appeal cannot be decided on merit and hence the appeal should be dismissed on this ground alone. It is also submitted that no illegality in the impugned judgment has been pointed out on behalf of appellant and hence on this ground also, the appeal deserves to be dismissed. Placing reliance of the case of State of U.P. v. Abhai Raj Singh and Anr. - 2004 SCC (Cri.) 901, it is also submitted that interference by this Court in the impugned judgment of acquittal would not be justified, as due to non-availability of lower court record, the appeal cannot be decided on merit and after a gap of more than 30 years, re-trial of the accused persons can also not be made, as no paper is available even in the office to Central Excise Department Bareilly.

Having considered the submissions made by the learned amicus curiae, I agree with her submissions that appeal can not be decided on merit in the absence of lower court record. In-spite of making all possible efforts by the CJM and the City Magistrate Bareilly, lower court record could not be reconstructed, as no paper is available either in the office of City Magistrate Bareilly or in the office of Central Excise Department. After a gap of more than 30 years, re-trial of the accused persons is also not possible, as no paper of the case is available even in the office of Central Excise Department. Therefore, acquittal of the accused-respondents can not be disturbed by this Court, as hearing of the appeal on merit in the absence of lower court record is not possible. As stated herein-above, retrial of the accused persons can also not be ordered now after a gap of more than 30 years and no useful purpose would be served by making order for re-trial of the accused persons in the absence of the papers of the case.

For the reasons mentioned herein-above, the appeal is hereby dismissed.

The amicus curiae Smt. Sandhya Agarwal will get Rs. 4000/- as her fee.

Office is directed to send a copy of this judgment to the City Magistrate Bareilly for information and necessary action.