Judgment This is an appeal by the Union of India represented by the Director of Enforcement, Enforcement Directorate, New Delhi, under Section 377(2) of the Code of Criminal Procedure against the judgment dated 17.11.1979 on the file of the Court of the learned Chief Metropolitan Magistrate, Egmore, Madras, inter alia Contending that the trial Court ought not to have shows lenience in awarding the sentence since the offence under the Foreign Exchange Regulation Act is an economic offence. 2. The Director of Enforcement, Enforcement Directorate, New Delhi, has given the complaint against the accused (1) K.R.Abdul Majeed and (2) S.M.Amir Ali, the respondents herein under Section 120-B of the Indian Penal Code, read with section 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act, 1947, stating that A.1 Abdul Majeed doing textile business at No.213/5l, Tode Street, Saigon, is an Indian National and A.2 Amir Ali is a native of Koothanallur in Tanjore District, that an information A.1 was arriving at Meenambakkam Airport from Singapore by Air India Flight on 7.2.1970 and A.2 would also be present at the Airport to receive A.1, the Officers of the Enforcement Directorate, waited at the Airport to apprehend the accused on 8.2.1970. A.1 was stopped at the Airport and was accosted by T.V.Sadagopan and his person was searched under Section 19-A of the Foreign Exchange Regulation Act, 1947. Incriminating documents like chits, carbon copies of manuscript letters written by A.1 addressed to A.2 at Koothanallur containing code words instructing A.2 to make payments of money to various person in India were seized under Section 19-A of the Foreign Exchange Regulation Act. A.1 gave a voluntary statement before T.V.Sadagopan on 8.2.1970 admitting that he used to write letters to A.2 using code words instructing him to make illegal payments to persons in India. Sheet No.14, of the documents seized from A.1 which was a carbon copy of a letter dated 31.1.1970 written by A.1 to A.2 contained the particulars of the names and addresses of various persons in India and the amounts to be paid to each one of them and according to the admission by A.1 Amir Ali used to present the chit containing the code message for receipt of payment of Indian currency to a person at No.25/2, Pycrofts Road, Triplicane, and would receive from that person the amounts and distribute the amounts to various persons mentioned in the letters. These transactions were going on for a long time as a result of the conspiracy entered into between the accused. The payment were made by order or on behalf of A.1 resident outside India, in contravention of Section 15(1)(aa) and 5(1)(c) and Section 23(1)(b) of the Foreign Exchange Regulation Act, 1947. On 8.2.1970 A.2 had come to receive A.1 at the Airport and was apprehended by Sri Subramaniam, Assistant Enforcement Officer, Madras, at the Meenambakkam Airport and A.2 voluntarily gave a statement corroborating the statement given by A.1. The statement was recorded by Sri Subramaniam and A-2 admitted having received the original of sheet No. 14 dated 30.1.1970, seized from A.2. 3. On 9.2.1970, the Enforcement Officers searched the house of A.2 at No.10, Chinnappali Street, Koothanallur, in the presence of two independent witnesses, Mohamed Basheer and R.C.Vasudevan and seized under a mahazar, five items of documents marked A, B, C, D and E. A.2 further gave a statement after the seizure of the documents admitting the entries in those documents having been made by him and the entries relate to the payments received by him under instructions, sent by A.1 from Saigon, for payments to be made to various persons named in the letters. The payments have been made in execution and in furtherence of the conspiracy between them. The documents showed that between 1969 and 1970, A.2 had received 29 payments amounting to Rs.50lakhs from a local person in India, by order or on behalf of A.1 and made 332 separate payments to persons named in India, in Indian Currency amounting to Rs. 48,63,850/- by order or on behalf of A.1, 15 persons whose names were found in the documents C & F to whom payments were made in India, by A.2 were contacted and all of them gave voluntary statements, admitting receipt of the payments from A.2. 4. The following are the persons: 1. Sri M.Ponnalagappa Chettiar, s/o Murugappa Chettiar, 2631, Manojiappa Street, Thanjavur. 2. Sri R.M.Subbiah Chettiar, Kadivastralaya, East Main Road, Pudukkottai. 3. Sri S.Veerappa Chettiar S.V.R. Cycle Mart, Kallakattu, Karaikudi. 4. Sri R.Veerappan, 56, Nachiar Koil West Street, Worriyur, Trichy. 5. Sri K.R.R.M.Ramanathan Chettiar, Ramanilayam, I-C/A, Kutcheri Road, Mayuram. 6. Sri S.Abdul Gafoor, 102, Perumal Koil Street, Karaikal. 7. Sri Haji K.M.Abdul Razack, Pallivasal Street, Ayappadi Village, Mayuram Taluk. 8. Sri N.K.Krishnappa Chettiar, N.22, Banakkara Street, Mannargudi. 9. 3. Sri S.Veerappa Chettiar S.V.R. Cycle Mart, Kallakattu, Karaikudi. 4. Sri R.Veerappan, 56, Nachiar Koil West Street, Worriyur, Trichy. 5. Sri K.R.R.M.Ramanathan Chettiar, Ramanilayam, I-C/A, Kutcheri Road, Mayuram. 6. Sri S.Abdul Gafoor, 102, Perumal Koil Street, Karaikal. 7. Sri Haji K.M.Abdul Razack, Pallivasal Street, Ayappadi Village, Mayuram Taluk. 8. Sri N.K.Krishnappa Chettiar, N.22, Banakkara Street, Mannargudi. 9. Sri S.Jayaraman, s/o V.Ditaraman, No.50-A, Agraharam, Tiruvanaikoil, Trichy-5. 10. Sri S.Valliappan, 232, A/1, South Market Street, Madurai. 11. Sri M.Raman, s/o Muthu Karuppan, 1-A, Kizhavadempokki Street, Madurai. 12. Sri S.E.Lourduswamy, s/o Erudayasami, St. James Building, Thanjavur Main Road, Thiruvarembur, Trichy-5. 5. A.2 was served with two separate show cause notices dated 9.12.1970 by the Director of Enforcement, under Section 5(1)(aa) and Section 5(1)(c) of the Foreign Exchange Regulation Act, 1947, for having received Rs.50 lakhs by order or on behalf of A.1 in 29 payments and for having made 332 payments amounting to Rs.48,63,850/-. A.2 appeared at the time of personal hearing and pleaded guilty to the charges under Section 5 (1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act, 1947. In view of the gravity of the offences, the adjudication authority found the penalty he has empowered to impose would not be adequate, ordered prosecution for the offences under Section 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act and the sanction of the Government under Section 196-A of the Criminal Procedure Code, was obtained. Hence the complaint was before the lower Court. 6. The prosecution examined initially eight witnesses, P.W.1 T.V.Sadagopan, Chief Enforcement Officer, P.W.2 B.Edward, Superintendent of Central Excise, P.W.3 S.Subramaniam, Inspector of Central Excise, P.W.4 Krishnaswami, Assistant Director of Enforcement, P.W.5 R.M.Murugappan, Enforcement Officer, P.W.6 K.Thiruvadinathan, Superintendent. Central Excise at Madurai, P.W.7 M.N.Baat, Chief Enforcement Officer at Bangalore and P.W.8 R.Chandran, Sales Promotion Officer in Air India, Madras. 7. With respect to the evidence coforled through the above eight witnesses, the accused were charged by the lower Court. With regard to the incriminating circumstances in the evidence of P.Ws.1 to 8. they have denied their versions. A.1 stated that the statement was given by him at the Custom House only and it was not given voluntarily. A.2 has admitted that he gave voluntarily. But A.2 has admitted making payment to P.Ws.5, but has denied knowledge to other persons. With regard to the incriminating circumstances in the evidence of P.Ws.1 to 8. they have denied their versions. A.1 stated that the statement was given by him at the Custom House only and it was not given voluntarily. A.2 has admitted that he gave voluntarily. But A.2 has admitted making payment to P.Ws.5, but has denied knowledge to other persons. To the charges framed under Section 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act, 1947, read with Section 120(3) of the Indian Penal Code against A.1 and A.2 and under Sections 5(1)(aa) and 5(1) (c) against A.1 both the accused pleaded not guilty. The accused have also further cross examined P.Ws.1 to 8. 8. The prosecution examined four more persons, P.W.9 R.M.Subbiah, P.W.10 Pon Alagappa Chettiar, P.W.11 KR.RM.Ramanathan Chetiar and P.W.12 N.K.Krishnappa Chettiar. Ex.P-1 to P-55were marked on behalf of the prosecution. M.O.1 series Indian Currency to the tune of Rs.3,100/-were also marked as material object on behalf of the prosecution, before the lower Court. On behalf of the defence, Ex.D-1 to D-3 were marked. 9. On the point whether the prosecution has established the charge against the accused beyond reasonable doubt, the trial Court held that the prosecution has clearly established the charges against the accused, and found then guilty of the charges framed against them. A.1 and A.2 were each sentenced by the trial Court to undergo rigorous imprisonment for six months and in addition A.1 was sentenced to pay a fine of Rs.3,000/-in default to suffer rigorous imprisonment for three months and A.2 was sentenced to pay a fine of Rs.2,000/-in default to suffer rigorous imprisonment for one month, in respect of the first charge under Sections 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act read with Section 120-B of the Indian Penal Code. In respect of the second charge under Sections 5(1)(aa) and 5(1)(c) read with Section 23(1)(b) of the Foreign Exchange Regulation Act, against A.2, A.2 was sentenced to undergo rigorous imprisonment for six months and the sentences under both the charges were ordered to run concurrently. 10. This appeal has been filed for enhancing the sentence imposed on the respondents herein by the lower Court. 11. The point for consideration is, whether the appeal filed by the appellant-Union of India represented by the Director of Enforcement, Enforcement Directorate, New Delhi, is maintainable under Section 377(2) of the Criminal Procedure Code. 12. 10. This appeal has been filed for enhancing the sentence imposed on the respondents herein by the lower Court. 11. The point for consideration is, whether the appeal filed by the appellant-Union of India represented by the Director of Enforcement, Enforcement Directorate, New Delhi, is maintainable under Section 377(2) of the Criminal Procedure Code. 12. Section 377 of the Criminal Procedure Code read as follows: "Appeal by the State Government against sentence; (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High. Court against the sentence on the ground of its inadequacy. 2. If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. 3. When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence". 13. The present appeal has been filed by the Director of Enforcement, Enforcement Directorate, New Delhi. It is not an offence investigated by the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act or the Criminal Procedure Code. Though the Counsel for the Central Government may appear in this appeal, yet it is relevant to note that the appeal has been presented only by the Enforcement Director, Directorate of Enforcement, New Delhi. In the instant case, the complainant himself is Director of Enforcement, Enforcement Directorate, New Delhi. So the appeal has been preferred by him before this Court. The point is whether such an appeal preferred by the Director of Enforcement, Enforcement Directorate, New Delhi, can come under the purview of Section 377(2) of the Code of Criminal Procedure. In the instant case, the complainant himself is Director of Enforcement, Enforcement Directorate, New Delhi. So the appeal has been preferred by him before this Court. The point is whether such an appeal preferred by the Director of Enforcement, Enforcement Directorate, New Delhi, can come under the purview of Section 377(2) of the Code of Criminal Procedure. The investigation in this case had been done by the Enforcement Directorate, Madras. In similar circumstances, it was held in The Assistant Collector of Central Excise (Preventive), Madras v. V.Krishnamurthy, (1983) Crl.L.J. 1880: (1983) L.W. (Crl.) 196 that an appeal preferred by the Assistant Collector of Central Excise under Section 377(2) of the Criminal Procedure Code, through his Counsel, as the ground of inadequacy of the sentence awarded, is not competent, and is liable to be dismissed for that reason. It is observed by the Bench of our High Court in the said decision as follows: "54. The Supreme Court in Eknath’scase, (1977) 2 S.C.J. 117: (1977) M.L.J. (Crl.) 421: (1977) Crl.L.J. 964: (1977) 3 S.C.C. 75: (1977) 3 S.C.R. 513 : A.I.R. 1977 S.C. 1177 after having observed that if, in a Central Act not being the Criminal Procedure Code, provision is made empowering a particular agency to make investigation of offences under that Act, then the Central Government alone will be the competent authority to prefer an appeal under Section 377(2), Criminal Procedure Code, held that the true test, therefore, under Section 377(2), Criminal Procedure Code, is whether, the offence is investigated by any other agency empowered to make investigation under the Central Act other than the Criminal Procedure Code. In other words, there may be an express provision in the Central Act empowering the making of investigation under that Act. 55. Now, bearing in mind the principles laid down in all the above cited cases, when the question involved in this case is examined, we are of the view that the Customs Officer and the Officer under the Gold (Control) Act, is not empowered to make investigation in the strict legal sense of the terms as used in Section 377(2), Criminal Procedure Code for the following reasons: 1. There is no express provision found in the Customs Act or under the Gold (Control) Act nor has any such provision been brought to the notice of this Court by the Counsel for the appellant-just like Section 3 of the Delhi Special Police Establishment Act, empowering the agency under the Customs Act or under the Gold (Control) Act to make investigation under the relevant Act. 2. There is no provision in these Acts similar to Section 173, Criminal Procedure Code, for the filing of a final report on completion of investigation. 3. The initiation of prosecution under the Customs Act is made only on the filing of a complaint in writing, that too with the previous sanction of the Collector of Customs. Similarly, under the Gold (Control) Act, the prosecution is launched only on a complaint in writing made by the Officer specified in the said Act. 4. The cognisance of an offence under these Acts is taken by the Court only under Section 190(1)(a) on receipt of complaint of facts constituting such an offence, unlike cases where cognisance is taken by a Court under Section 190 (1)(b) on receipt of a report filed under Section 173, Criminal Procedure Code. 56. Therefore, from the mere fact that the formation of opinion as to whether or not there is a case to place the offender on trial rests on the officer of Customs, it cannot be said that there is ‘investigation’ within the meaning of the said term in Section 377(2), Criminal Procedure Code, as viewed by Maheswaran, J. Further we feel that Maheswaraj, J. has distinguished Eknath’s case, (1977) 2 S.C.J. 117: (1977) M.L.J. (Crl.) 421: (1977) Crl.L.J. 964: (1977) 3 S.C.C. 25 : (1977) 3 S.C.R. 513 : A.I.R. 1977 S.C. 1177 on the ground that the powers of the Food Inspector are very different from the powers of the Customs Officials. Similarly, that decision cannot be distinguished, as contended by Mr. C.Krishnan, on the ground that the agency under the Prevention of Food Adulteration Act is a machinery belonging to the State Government. Similarly, that decision cannot be distinguished, as contended by Mr. C.Krishnan, on the ground that the agency under the Prevention of Food Adulteration Act is a machinery belonging to the State Government. But the true test laid down by the Supreme Court in Eknath’s case, (1977) 2 S.C.J. 117: (1977) M.L.J. (Crl.) 421: (1977) Crl.L.J. 964: (1977) 3 S.C.C. 25 : (1977) 3 S.C.R. 513 : A.I.R. 1977 S.C. 1177 for the application of Section 377(2), Criminal Procedure Code, is to find out whether there is a specific provision in the Central Act concerned empowering any agency’ to make investigation into the offence under that Act, thereby meaning that in the absence of any such provision there is no ‘investigation’ within the meaning of Section 377(2). Therefore, even though in Eknath’s case, (1977) 2 S.C.J. 117: (1977) M.L.J. (Crl.) 421: (1977) Crl.L.J. 964: (1977) 3 S.C.C. 25 : (1977) 3 S.C.R. 513 : A.I.R. 1977 S.C. 1177 the fact related to an offence under the Prevention of Food Adulteration Act, the principle laid down was clearly applicable to all the Central Acts. Hence, in view of all the discussions made above, we are in agreement with the view taken by Suryamurthy, J., holding that the Customs Officer is not an agency empowered to make ‘investigation’ within the meaning of that expression as used in Section 377(2), Criminal Procedure Code. 57. On the analogy of the above principles, we hold that the Assistant Collector of Central Excise under the Gold Control Act is also not an agency empowered to make investigation within the meaning of Section 377(2), Criminal Procedure Code. 58. In the result, we conclude that the appeals preferred by the learned Counsel on behalf of the appellants under Section 377(2), Criminal Procedure Code, are not competent and accordingly, all the appeals are dismissed." 14. Applying the ratio decidendi in the above Bench decision of our High Court, I find that the present appeal Preferred by Union of India represented by the Director of Enforcement, Enforcement Directorate, New Delhi, is not maintainable. Hence this appeal is dismissed as not maintainable.