JUDGMENT (ORAL) S.M. Daud, J. - This is a quashing petition under section 482 of the Criminal Procedure Code 1973 and Article 227 of the Constitution of India. 2. Taking the facts from the order of sanction for prosecution, the position emerging is thus: On 10.11.1985 Officers of the Sahar Airport Police Station acting on prior information intercepted a car bearing registration No. MMY 3484. Inside the car were three persons, viz. petitioner, Chitra Ladkani and Shrichand Sewlani. In the presence of panchas a thorough search of the car was carried out and the same resulted in the recovery of 22 gold bars of foreign origin weighing 1750 grams, Indian currency of Rs. 39,900/-and dutiable goods worth Rs. 23,633/-. These articles were concealed in four pairs of chappals, a leather pouch, and plastic bags. A search of the petitioner was taken and recovered from him was Indian currency of the face value of Rs. 2,400/-, a landing certificate standing in his name, an envelope of a photo studio of Singapore containing a negative and one photograph said to represent the likeness of Rajkumar - The statement to that effect being made by the petitioner himself - and one Alba make quartz wrist watch. Petitioner when questioned under section 108 of the Customs Act 1962 gave out that he had gone to Singapore on 7.11.1985 and had returned on 10.11.1985. While getting clearance through the customs he came across Rajkumar Nankani who was a co-traveller with him on a trip to Singapore and back and therefore, asked the said Rajkumar to give him a lift in his car. Rajkumar agreed to the request and both of them came with their luggage which was placed inside the car mentioned above. Rajkumar left asking him to wait on in the car and it was during Rajkumar's absence that the Police came on the scene and took a search of the car with the consequential recovery of gold bars etc. etc. Chitra admitted being acquainted with the petitioner who was said to have accompanied her on the trip to Singapore and had come back on 10.11.1985 on the same flight as herself. Sewlani gave out that he was working as a driver for Rajkumar and had come to pick up the said person on instructions given by the said person's wife. Accompanying him in the car was one Viju Ahuja. Sewlani gave out that he was working as a driver for Rajkumar and had come to pick up the said person on instructions given by the said person's wife. Accompanying him in the car was one Viju Ahuja. According to Sewlani, petitioner was a partner of his master and both of them had come together and had kept their baggage in the car prior to the arrival of the Police and the search and seizure there from. A Travel Agent Haresh Kumar Kalyani claimed to be acquainted with Rajkumar said that the tickets for the trip to Singapore for Rajkumar, Chitra and the petitioner had been booked and paid for by the first named person. A personal penalty of Rs. 500/- was imposed on the petitioner together with a penalty of Rs. 5,000/-. What exactly this represents is not clear and according to Mr. Kanuga representing the petitioner, the same was for articles brought in by the petitioner in excess of the permissible value visa-vis in-coming travellers. After having detailed the above, the sanction order spoke of petitioner, Chitra, Sewlani and Rajkumar having committed an offence punishable under sections 135(1 )(b) (i) of the Customs Act, 1962, r/w. 120-B and/or 34 of the I.P .C. 3. Learned Counsel for the petitioner contends that in the adjudication proceedings the Collector of Customs had exonerated the petitioner of the charge of being in any way responsible for the importation of the gold and other articles of foreign origin. That being the position, he could not have granted the sanction to prosecute. That sanction to prosecute the petitioner was granted was indicative of a non application of mind deserving of the prosecution based thereon against the petitioner, being quashed. Even otherwise according to Mr. Kanuga there was no material to warrant the grant of a sanction to prosecute the petitioner. This contention is disputed by the Public Prosecutor. He argues that the contention put forth on behalf of the petitioner is in the nature of a defence. The same will be required to be established by cross-examination of the complainant's witnesses or examination of the petitioner and/or his witnesses. In the absence of a further probe the petitioner was not en titled to the relief claimed. 4. The provisions of section 135 of the Customs Act referred to in the sanction order, to the extent relevant, read thus: "135(1). In the absence of a further probe the petitioner was not en titled to the relief claimed. 4. The provisions of section 135 of the Customs Act referred to in the sanction order, to the extent relevant, read thus: "135(1). Without prejudice to any action that may be taken under this Act, if any person (a) is in relation to any goods in anyway knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, he shall be punishable, I. in the case of an offence relating to any of the goods to which section123 applies” Now, from the several statements referred to in the sanction document no one seems to have ascribed the importation of the gold of foreign origin to the petitioner. The Public Prosecutor argues that the petitioner was found in the car in which there was a large quantity of gold of foreign origin as also other dutiable articles. Prima facie it can not be said that there was some nexus between the importation and the petitioner. The sanction document itself shows that the car in which the contraband was found belonged to Rajkumar. It had been sent to the Airport by Rajkumar's wife. True petitioner was found in the car, but so were Chitra and Sewlani. Sewlani spoke of petitioner as also Rajkumar having dumped their baggage into the car. The sanction order does not speak of the existence of any other evidence indicating that the contraband had been imported by the petitioner. Having regard to the other circumstances, it would be legitimate to hold that the contraband had been brought in by either Rajkumar or Chitra. The sanction order does not speak of the existence of any other evidence indicating that the contraband had been imported by the petitioner. Having regard to the other circumstances, it would be legitimate to hold that the contraband had been brought in by either Rajkumar or Chitra. In fact that was the view of the Collector in the adjudication proceedings and the relevant portion relied upon by the petitioner is reproduced in his petition and reads thus: "It is however not the case of the department that the petitioner had any complicity in the smuggling of the gold found concealed in the baggage goods cleared for Rajkumar or in the dutiable and restricted goods cleared for Rajkumar by Chitra. Unlike Chitra it is not alleged that he is a paid carrier of Rajkumar though he may be a business partner. In fact if he would have had any complicity in the illegal activities or even any knowledge about it, Mohan (petitioner) would not have been waiting in Rajkumar's car and sleeping happily in the process. In fact unlike Chitra, who was not coming out clearly about the arrival of Rajkumar, Mohan gave out the fact that Rajkumar travelled with him both ways. This cannot be the attitude of an inside of an involved man. The recovery of the small quantity of Indian currency and little excess baggage has therefore be decided on merits". This last sentence refers possibly to the penalty imposed on the petitioner. Be that as it may, what the passage reproduced above makes clear, is, the exoneration of the petitioner vis-a-vis the importation of gold and restricted goods. 5. The Public Prosecutor contends that having regard to section 123 of the Customs Act the burden to prove his not being connected with the smuggling, lies upon the petitioner and this can be established only at the trial. Reliance in support of this contention is placed upon section 123, which to the extent relevant reads as follows: “123( 1). 5. The Public Prosecutor contends that having regard to section 123 of the Customs Act the burden to prove his not being connected with the smuggling, lies upon the petitioner and this can be established only at the trial. Reliance in support of this contention is placed upon section 123, which to the extent relevant reads as follows: “123( 1). Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- (a) in a case where such seizure is made from the possession of any person (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods ,were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized." It is not the case of the sanctioning authority that the goods were seized from the possession of the petitioner. Neither is it their case that the petitioner claimed to be the owner of the smuggled goods. Therefore, the burden spoken of by the Public Prosecutor cannot be cast upon the petitioner. 6. To sum up, the incongruity of the Collector exonerating petitioner in the adjudication proceedings and his in the same breath granting sanction to prosecute the petitioner, as also the absence of any reasonable ground to warrant the grant of sanction to prosecute the petitioner, constrain an order to quash the sanction as inevitable. The sanction to the extent it directs prosecution against the petitioner is hereby quashed. Rule made absolute. Petition allowed.