Dismissed

Shri R.B. Tiwari, Assistant Collector Customs v. Rajesh Kallaji Choudhari and Another.

Bombay HC3 May 2011APEAL/408/1994

Case brief

AI extract

What is this about?

In this criminal appeal regarding Customs Act offenses, the High Court dismissed the appeal as incompetent. The court held that the Criminal Procedure Code does not permit an appeal by a private prosecution agency like the Assistant Collector when the prosecution is under Central Government direction, citing Supreme Court precedent. Additionally, the appeal was found barred as it was filed beyond

What did the court decide?

Criminal Appeal No. 408 of 1994 dismissed as incompetent and barred by limitation.

Shri R.B. Tiwari, Assistant Collector Customs Vs… — Criminal Trial and Appeal | Bombay HC (2011)

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Cri.Appeal 408-1994

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.408 OF 1994

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R.B.Tiwari.Appellant
Assistant Collector of Customs(P),
R & I Division, New Customs House,
Ballard Estate,
Bombay � 400 038.

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 V/s.

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1.Rajesh Kallaji Choudhary.Respondents
Kheteshwar Mithai Mart,
60, Feet Road, Near
Ghatkopar Railway Station (E),
Bombay � 400 086.

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2. The State of Maharashtra

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Mrs.A.A.Mane, Spl.P.P., for the Appellant
Mrs.Teja Katdare, Advocate, for Respondent No.
1

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Mrs.Geeta P. Mulekar, APP, for Respondent No.2
- State

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CORAM:R.C.CHAVAN, J.
DATE:3RD MAY, 2011

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ORAL JUDGMENT

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.This Appeal is filed by the Assistant

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Collector of Customs(P) questioning the

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adequacy of sentence of rigorous imprisonment

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for five months with a fine of Rs.30,000/-

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2 Cri.Appeal 408-1994

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imposed upon the appellant for the offence
punishable under Sections 135(1)(a)(i) and
135(1)(b)(i) of the Customs Act by the learned

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Chief Metropolitan Magistrate, Esplanade,

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Bombay by his Judgment dated 10th January,

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1994. Memo of Appeal shows that the Appeal is
presentedbyMr.R.B.Tiwari,Assistant

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Collector of Customs(P), who is shown as

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appellant. Memo is signed by Special Public

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Prosecutor for Union of India. Notes of Memo
of Appeal show that the Judgment was delivered
on 10thJanuary, 1994. Application for

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certified copy was filed on the same date. A

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copy of Judgment became available on 7th April,
1994 and Appeal itself was filed on 22nd June,
1994.

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2.I have heard the learned Special

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Public Prosecutor for the appellant, the

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learned Counsel for Respondent No.1 (Original

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accused) and the learned APP for Respondent
No.2 � State. As rightly pointed out by the

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3 Cri.Appeal 408-1994

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learned Counsel for Respondent No.1, Code of
Criminal Procedure does not contemplate an

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Appeal being filed unless specifically
provided in the Code. Section 377 of the Code

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of Criminal Procedure provides for Appeal by

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the State or Union Government against
sentence. Sub-section 2 provides that in case
of conviction on a prosecution launched by an

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agency employed to make investigation under

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the Central Government, the Central Government

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may direct the learned Spl.P.P. to prefer an
Appeal. The question as to whether Assistant

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Collector of Customs(P) could prefer an Appeal
against inadequacy sentence was considered by
the Supreme Court in Assistant Collector of

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CentralExcise,MadrasVersusV.

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Krishnamoorthy, reported at 1997(3) SCC 100
and the Court held that no such appeal could

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be filed. In view of this, Appeal would have
to be dismissed as incompetent.

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3.The learned Counsel for Respondent No.

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4 Cri.Appeal 408-1994

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1 also pointed out that Article 115(b) of the
Limitation Act provided for limitation of only
60 days for appeal from any other sentence or
order, not being an order of acquittal. In
this case, even according to the learned
Spl.P.P. for Union of India, who drafted an
Appeal, a copy of Judgment became available on
7th April, 1994, however, Appeal was filed on
22nd June, 1994 that is beyond a period of 60
days which is described under Article 115(b)
of the Limitation Act even on this count
Appeal is barred.

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4.In view of this, Criminal Appeal is

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dismissed.

Shri R.B. Tiwari, Assistant Collector Customs v. Rajesh Kallaji Choudhari and Another.

Case brief

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What did the court decide?

Shri R.B. Tiwari, Assistant Collector Customs v. Rajesh Kallaji Choudhari and Another.

Case brief

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What did the court decide?

What the court decided

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