JUDGMENT N. Ananda, J.— The Respondent was arrayed as accused in C.C. No. 14/1989, on the file of I Addl. Chief Judicial Magistrate, Dakshina Kannada. He was tried and convicted for an offence punishable under Section 135 of the Customs Act, 1962 (for short, 'the Act') and also for an offence punishable under Section 85(2) of the Gold Control Act, 1968. The Respondent challenged the judgment of conviction in Criminal Appeal No. 149/1999. The learned Judge of I-appellate Court by judgment dated 12-3-2001 accepted the appeal and acquitted the accused of an offence punishable under Section 135 of the Act so also of an offence punishable under Section 85(2) of the Gold Control Act. Therefore, the Appellant namely Assistant Collector of Customs (Preventive), Mangalore, has filed this appeal. 2. I have heard Sri Y. Hariprasad, learned Senior Central Government Standing Counsel for Appellant and Sri P.V. Gunjal, learned Counsel for Respondent/accused. I have been taken through the evidence and findings of trial Court as also of I-appellate Court. 3. The trial Court accepting the evidence adduced by the complainant has held that on 19-5-1987 at about 3.10 a.m. at K.S.R.T.C. bus stand, Mangalore, the accused was in possession of 11 gold biscuits, one gold chain and one gold buckle, in all weighing 1,515.850 gms. The said articles were of gold metal and they were of foreign origin and the accused had reasonable belief that they are liable to be confiscated under Sections 111 & 113 of the Act. The aforestated quantity of gold was seized by the customs officials. The accused was in possession of smuggled goods and punishable under Section 85(1)(2) of the Gold Control Act, 1968. 4. The learned Judge of I-appellate court reversed the findings of trial Court by holding: (I) The complainant/prosecution has failed to prove aforestated quantity of contraband was of gold metal and CW. 9 & CW. 10 (goldsmiths), who had tested and issued certificates, were not examined before the trial Court. The sanction accorded to prosecute the accused is invalid in the eye of law. (II) The prosecution has failed to prove possession and recovery of aforestated quantity of gold articles from possession of the accused. 5. During pendency of the appeal, learned Senior Central Government Standing Counsel appearing for Appellant has made an application under Section 391 Code of Criminal Procedure, for examination of CW9-S anath. (II) The prosecution has failed to prove possession and recovery of aforestated quantity of gold articles from possession of the accused. 5. During pendency of the appeal, learned Senior Central Government Standing Counsel appearing for Appellant has made an application under Section 391 Code of Criminal Procedure, for examination of CW9-S anath. K and CW.10-K. Ramesh Acharya, who had tested samples of contraband and certified the samples of gold and purity of gold. 6. The learned Counsel for Respondent/accused has filed objections, inter alia contending that there are no grounds to entertain the application and valid reasons are not assigned for non-examination of CW9 & CW10 before the trial Court, at this stage after a period of 21 years, it would be an exercise in futility. 7. The learned Counsel for Respondent/accused has raised preliminary objections regarding maintainability of the instant appeal by making following submissions: The Customs Department is an agency empowered to make investigation under the Customs Act, 1962. In the circumstances, the instant appeal ought to have been filed by the public prosecutor on a direction issued by the Central Government. The learned Counsel for Respondent/accused has placed reliance on the following judgments: (I) Mansoor and Others Vs. State of Madhya Pradesh, AIR 1971 SC 1977 (II) State of Maharashtra Vs. Jethmal Himatmal Jain and another, (1994) 4 BomCR 103 (III) Khemraj Vs. State of Madhya Pradesh, AIR 1976 SC 173 8. As against this, the learned Senior Central Government Standing Counsel appearing for the Appellant has relied on the judgment of the Supreme Court, reported in Assistant Collector of Central Excise, Madras Vs. V. Krishnamoorthy and Others, AIR 1997 SC 1904 (in the case of Assistant Collector of Central Excise, Madras v. V. Krishnamoorthy and Ors.), wherein it is held: 3. The debate as to whether the Assistant Collector of Central Excise is empowered to make investigation within the scope and meaning of Section 377(2) of the Code of Criminal Procedure is academic and futile for the present purposes unless and until the appeals by themselves were competently filed by the proper designated person as given in the provision. As is evident and crystal clear it is the Public Prosecutor who under the directions of the Central Government is obliged to present an appeal to the High Court against the sentence on the ground of its inadequacy. Such power does not vest with the complainant. As is evident and crystal clear it is the Public Prosecutor who under the directions of the Central Government is obliged to present an appeal to the High Court against the sentence on the ground of its inadequacy. Such power does not vest with the complainant. Here the appeals have been preferred by the complainant though the counsel engaged by the complainant happens to be the Central Government Public Prosecutor. Plainly a fiduciary relationship of client and counsel appears to have been established. No such situation is permissible under Section 377(2) of the Code of Criminal Procedure. The reason is obvious because the law presumes that it is the Central Government, who through its Public Prosecutor can voice grievance before the High Court in relation to the inadequacy of sentence. The complainant has full say only in an appeal against acquittal under Section 378(4) of the Code of Criminal Procedure but has no locus standi to move under Section 377(2) of the Code of Criminal Procedure. The competency of the appeals having not been established we are not obliged to examine the correctness of the answer to the question whether an offence of the Customs Department would be such an agency as is empowered to make investigation into an offence under the provisions of the Indian Customs Act within the meaning of Section 377(2) of the Code of Criminal Procedure. That question remains as it is." (Underlining supplied by me) 9. At first instance, Appellant had filed Criminal Revision Petition No. 650/2001 under Section 397 Code of Criminal Procedure. This Court by order dated 2-4-2002 has held that criminal revision petition is not maintainable and it was converted into a criminal appeal. On 7-8-2002, learned Counsel for Appellant was heard and special leave to appeal was granted. 10. In a decision reported in Khemraj Vs. State of Madhya Pradesh, AIR 1976 SC 173 , the Supreme Court was dealing with an appeal under Section 417(2) Code of Criminal Procedure. In the circumstances, there was no occasion for the Supreme Court to look into the provisions of Section 378(4) Code of Criminal Procedure, 1973, which provides for entertaining an appeal against the judgment of acquittal in case of complaint instituted either under Section 200 Code of Criminal Procedure, or under any special enactment. In the circumstances, there was no occasion for the Supreme Court to look into the provisions of Section 378(4) Code of Criminal Procedure, 1973, which provides for entertaining an appeal against the judgment of acquittal in case of complaint instituted either under Section 200 Code of Criminal Procedure, or under any special enactment. In the case on hand, it cannot be disputed that the complaint was instituted under Section 200 Code of Criminal Procedure, by the Assistant Collector of Customs (Preventive), Mangalore and judgment of acquittal was made by the learned Sessions Judge. In the circumstances, this Court has no impediment to entertain the appeal filed under Section 378(4) Code of Criminal Procedure. 11. In the judgment reported in Assistant Collector of Central Excise, Madras Vs. V. Krishnamoorthy and Others, AIR 1997 SC 1904 (in the case of Assistant Collector of Central Excise, Madras v. V. Krishnamoorthy and Ors. AIR 1997 SC 1904 ), the Supreme Court has held that the complainant has full say only in an appeal against acquittal under Section 378(4) of the Code of Criminal Procedure but has no locus standi to move under Section 377(2) of the Code of Criminal Procedure. 12. Incidentally, it is necessary to say the judgment reported in Assistant Collector of Central Excise, Madras Vs. V. Krishnamoorthy and Others, AIR 1997 SC 1904 was with reference to the powers of Assistant Collector of Central Excise, Madras, wherein the Supreme Court has held that the complainant cannot maintain an appeal under Section 377(2) Code of Criminal Procedure, which is meant for enhancement of sentence. Further, the provisions of Section 378(4) Code of Criminal Procedure, are applicable to an appeal filed against the judgment of acquittal. The legal principles enunciated in the judgments relied by learned Counsel for the Respondent/accused are not applicable to the facts of the case. Therefore, the preliminary objection raised by learned Counsel for Respondent/accused cannot be sustained. 13. The law is fairly well settled that I-appellate Court while dealing with the judgment of conviction has to re-appreciate the entire evidence and material on record with reference to findings recorded by the learned trial Judge either to confirm or reverse the judgment of conviction. 14. Therefore, the preliminary objection raised by learned Counsel for Respondent/accused cannot be sustained. 13. The law is fairly well settled that I-appellate Court while dealing with the judgment of conviction has to re-appreciate the entire evidence and material on record with reference to findings recorded by the learned trial Judge either to confirm or reverse the judgment of conviction. 14. The learned Judge of I-appellate Court has acquitted by recording the following findings: (I) The prosecution has failed to prove that articles seized and recovered from possession of Respondent/accused were of gold metal and they were of foreign origin. (II) The sanction accorded is not in accordance with the provisions of Section 135 of the Act. (III) The evidence on record is discrepant and it is not sufficient to prove possession of aforestated quantity of gold articles by the accused and recovery of the same by the officials of Customs Department. 15. After going through the records of the trial Court, I find that on 9-7-1999, considering the application made by the accused for closure of prosecution evidence, the learned trial Judge following the judgment of the Supreme Court, reported in 1998 (4) Crimes 53 and in the case of Mahadevaiah Vs. State of Karnataka and others, (1996) CriLJ 2677 , closed the case of prosecution. Thus, during trial, the trial Court did not allow the prosecution to adduce evidence of CW9, CW10 and other witnesses. The learned trial Judge had not bestowed attention to the "Common Cause" judgment of the Supreme Court, reported in 1996 SCC 589 (in the case of "Common Cause" a Registered Society through its Director v. Union of India and Ors.), wherein it is held: 4. Directions (1) and (2) made hereinabove shall not apply to cases of offences involving (a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act, 1947 or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotrophic Substances Act, Acts dealing with environment or any other economic offences, (d) offences under the Arms Act. 1959, Explosive Substances Act, 1908, Terrorists and Disruptive Activities Act, 1987, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquillity, (g) offences relating to public servants, (h) offences relating to coins and government stamp, (i) offences relating to elections, 0) offences relating to giving false evidence and offences against public justice, (k) any other type of offences against the State, (1) offences under the taxing enactments and (m) offences of defamation as defined in Section 499 IPC. Direction No. 1 to quash the proceedings and direction No. 4 for unconditional release of the accused and dismissal of proceedings against persons accused of offences under Section 309 of the Indian Penal Code where the proceedings have been pending in any court for more than one year from the date of their institution are not applicable to the facts of the instant case which was pending trial for offences of smuggling. 16. In a decision reported in P. Ramachandra Rao Vs. State of Karnataka, AIR 2002 SC 1856 , the Supreme Court has overruled the earlier judgments of the Supreme Court, reported in Raj Deo Sharma Vs. The State of Bihar, (1998) 7 AD SC 401 (II-judgment); Raj Deo Sharma Vs. The State of Bihar, AIR 1999 SC 3524 (II-judgment) and also judgments rendered in AIR 1996 SC 1619 (Common Cause v. Union of India (I-judgment)) and Common Cause, A Registered Society Throough its Director Vs. Union of India and others, (1996) 8 AD SC 746 (II-judgment)). 17. The learned trial Judge by overlooking the judgment of the Supreme Court, reported in 1996 SCC 589 had closed the case of prosecution. 18. Thus, the trial Court by order dated 9-7-1999 had rejected request of complainant to examine CW. 9 & CW. 10. The trial Court by its order dated 9-7-1999 had misdirected the proceedings. Therefore, the complainant cannot be blamed for non-examination of CW9 & CW10. The I-appellate Court has not considered the circumstances under which the complainant had been disabled from examining CW9 & CW10 before the trial Court. Therefore, I am of the opinion that the application for examination of CW9 & CW10 has to be accepted. 19. The learned Judge of I-appellate Court has held that sanction accorded by the sanctioning authority is not in accordance with the provisions of Section 135 of the Act. Therefore, I am of the opinion that the application for examination of CW9 & CW10 has to be accepted. 19. The learned Judge of I-appellate Court has held that sanction accorded by the sanctioning authority is not in accordance with the provisions of Section 135 of the Act. It is seen from records, the Appellant had not raised any objections regarding validity of sanction order before the trial Court. Therefore, it was necessary for I-appellate Court to record a finding as to invalid sanction had occasioned failure of justice. 20. In a judgment reported in State of Orissa Vs. Mrutunjaya Panda, AIR 1998 SC 715 , it is held: 2. On perusal of the impugned judgment we find that the High Court's attention was not drawn to the provisions of Section 465 of the Code of Criminal Procedure which expressly lays down, inter alia, that any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate Court unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. The section further lays down that in determining whether any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage of the proceedings. In view of the above provisions the High Court was required to decide after recording a finding that there was some error or irregularity in the sanction, whether such error or irregularity occasioned a failure of justice and further whether such objection regarding the validity of the sanction was raised in the trial Court. Admittedly, the above point was not raised in the trial Court nor do we find anything on record from which it can be said that the error or irregularity in the sanction (even if we assume that the finding of the High Court in this regard is correct) did occasion any failure of justice. In that view of the matter it must be said that the High Court was not at all justified in acquitting the Respondent on the ground that there was no valid sanction to prosecute him. In that view of the matter it must be said that the High Court was not at all justified in acquitting the Respondent on the ground that there was no valid sanction to prosecute him. Since on facts, the concurrent findings of the Courts below are based on proper appreciation of evidence and supported by cogent reasons the judgment of the High Court has got to be reversed. 21. It is seen from the judgment of the trial Court and judgment of the I-appellate Court, the trial Court has made a cursory reference to the voluntary statement given by the accused under Section 108 of the Act The I-appellate Court has not at all considered the voluntary statement given by the accused under Section 108 of the Act. 22. The learned Counsel for Respondent/accused has cited several authorities regarding evidentiary value of statement of accused under Section 108 of the Act. The I-appellate Court has not at all considered the voluntary statement given by the accused under Section 108 of the Act. Therefore, it is not necessary for me to consider the submission of learned Counsel for Respondent/accused and also the various judgments cited on this aspect. 23. Having noticed the above legal infirmities, which would vitiate the judgment of I-appellate Court, the next point for consideration is: What is the course of action to be followed by this Court in an appeal under Section 378(4) Code of Criminal Procedure? 24. In a decision reported in Lakshmanan Sundaram Vs. State of Kerala, (1990) CriLJ 1800 a Division Bench of Kerala High Court has held that when the matter is remanded to consider an appeal under Section 386 Code of Criminal Procedure, it cannot be held that the appellate Court cannot order limited retrial. Even when partial retrial is held that amounts to accused being tried again and retrial could also mean continuation or completion of the original trial. Therefore, if I-appellate Court is directed to examine the witnesses cited in the application made under Section 391 Code of Criminal Procedure, that would also amount to retrial. In view of the aforestated serious errors committed by the I-appellate Court, I am of the opinion the matter requires reconsideration by the I-appellate Court. 25. In the result, I pass the following: ORDER 26. The appeal is accepted. The impugned judgment of acquittal is set aside. In view of the aforestated serious errors committed by the I-appellate Court, I am of the opinion the matter requires reconsideration by the I-appellate Court. 25. In the result, I pass the following: ORDER 26. The appeal is accepted. The impugned judgment of acquittal is set aside. The matter is remanded to I-appellate Court with the following directions: I. The I-appellate Court shall permit the complainant to examine CW9-Sanath. K & CW10-K. Ramesh Acharya, only for a limited purpose of proving the certificates issued by them. II. The I-appellate Court shall examine the accused under Section 313 Code of Criminal Procedure, with reference to evidence of CW9 & CW10 that may be adduced by the complainant/prosecution. III. The complainant/prosecution shall expedite examination of CW9 & CW10 with or without seeking for issuance of summons to CW9 to CW10 from the trial Court. IV. The I-appellate Court after completion of evidence of CW9 & CW10 and examination of accused under Section 313 Code of Criminal Procedure, shall hear learned Counsel for parties and decide the appeal on merits in the light of observations made in this judgment and in accordance with law, within a period of six months from the date of receipt of a copy of this judgment. V. During pendency of the appeal, the I-appellate Court shall extend the benefit of bail to the Respondent/accused. Office is directed to send back records of trial Court as also of I-appellate Court to I-appellate Court.