JUDGMENT : P. Velmurugan, J. 1. A1 to A5 in C.C. No. 2 of 2013 on the file of the Additional Chief Judicial Magistrate, Madurai, are the respondents in Crl.A.No.58 of 2009 and the sole accused in C.C. No. 4 of 2014 on the file of the Additional Chief Judicial Magistrate, Madurai, is the respondent in Crl.A.No.59 of 2009. 2. The appellant registered a case in O.R. No. 2/1998 against the respondents/accused for the offences under Sections 132, 135(1)(A)(ii) r/w. 135(A) of the Customs Act and after investigation, filed a complaint before the learned Additional Chief Judicial Magistrate, Madurai. The learned Additional Chief Judicial Magistrate taken cognizance of the complaint filed in C.C. No. 2 of 2003 and after completing the formalities, framed charges against the respondents for the offences under Sections 132, 135(1)(A)(ii) r/w. 135(A) of the Customs Act. 3. During investigation, the respondent in Crl.A. No. 59 of 2009 was absconded and therefore, his case was split up in C.C. No. 4 of 2004. 4. After completing the formalities, on the side of the appellant, as many as 7 witnesses were examined as P.W. 1 to P.W. 7 and 13 documents were marked as Exs. P1 to P13, besides marking two Material Objects as M.Os.1 and 2 and one Court document as Ex. C1 and after completing the prosecution evidences, when incriminating circumstances culled out from the prosecution witnesses were put before the accused, they denied as false and no oral and documentary evidence was produced on the side of the defence. 5. After completing the trial and hearing the arguments on either side, the learned Additional Chief Judicial Magistrate, Madurai, by way of separate judgments, acquitted the accused/respondents in both the appeals on the ground that the appellant/prosecution has not proved its case beyond reasonable doubt against the accused/respondents. 6. Challenging the said judgments of the learned Additional Chief Judicial Magistrate in C.C. No. 2 of 2003 and C.C. No. 4 of 2004 dated 23.05.2008, the appellant filed present appeals. Since both the appeals are arising out of common O.R. No. 2/98 and all the respondents are allegedly involved in the same offences, both the appeals have been taken together and common judgment is pronounced. 7. Since both the appeals are arising out of common O.R. No. 2/98 and all the respondents are allegedly involved in the same offences, both the appeals have been taken together and common judgment is pronounced. 7. The learned counsel for the appellant/Customs would submit that the learned Additional Chief Judicial Magistrate failed to note that during the seizure proceedings, the respondent in Crl.A. No. 59 of 2009 Alexander was not available and so, his name was not mentioned in Ex. P12 and even, there is no contradictions between the statements of Rahman Sait, 5th respondent in Crl.A. No. 58 of 2009 and Ex. P6 inventory Mahazar as observed by the learned Additional Chief Judicial Magistrate and that the sanction of prosecution against the respondents were duly obtained and mere non-examination of the sanctioning authority will not vitiate the case and the person, who is well acquainted with the prosecution was examined as witness. The learned Additional Chief Judicial Magistrate failed to understand the case of the prosecution that the accused attempted to export sandal woods stating that they are exporting roofing tiles, which is amounting to offence under the Customs Act and further, the learned Magistrate failed to consider that the sandal woods are prohibited items under the EXIM policy and the respondents fraudulently declared the commodity as roofing tiles. The learned trial Judge also failed to appreciate the fact that the shipping bill was filed by the respondents in bogus name to escape from the clutches of law. Further, the learned counsel for the appellant would submit that once the shipping bill is filed, then the intention of the respondents/accused to export the commodity is established and the seized sandal woods are the prohibited items under the Foreign Trade Policy 1997-98. The trial Judge also failed to appreciate the legal position that Section 2(33) of the Customs Act defines the term "prohibited goods" as any goods, the import or export of which is subject to any prohibition under this Act or any other law for the time being in force. Since the sandal woods are declared as prohibited goods under Foreign Trade (Development and Regulation) Act, 1992, it should be also considered as prohibited item under Section 11 of the Customs Act. Since the sandal woods are declared as prohibited goods under Foreign Trade (Development and Regulation) Act, 1992, it should be also considered as prohibited item under Section 11 of the Customs Act. Further, he would submit that the learned Additional Chief Judicial Magistrate himself visited the customs godown and examined the sandal woods seized by the Department; since the commodity is huge in quantity, it was not produced before the Court; hence the non-production of the seized goods before the Court is not a ground for acquittal. The learned trial Judge also failed to appreciate that the voluntary statements given by the respondents/accused before the Customs Officers are admissible in evidence. 8. He would further submit the learned trial Judge acquitted the respondents mainly on the ground that the sanctioning authority was not examined and the sanctioned order was not proved before the Court and the seized sandal woods have not been produced before the Court and the confession statements given by the respondents/accused were subsequently retracted and further, there is no proof to show that they have attempted to export sandal woods in the name of roofing tiles and also the prosecution failed to prove misdeclaration when the bills were not produced. 9. He would further submit that when the confiscation proceedings was initiated against the respondents, the said order was challenged by the appellant herein. The competent authority has passed an order in favour of the appellant and initially the Commissioner of Customs admitted the appeal and passed penalty; and the respondents taken appeal before the Appellate Tribunal and the Appellate Tribunal allowed the appeal filed by the respondents herein and set aside the penalty imposed by the Commissioner of Customs. Challenging the said order, the appellant herein preferred CMA. No. 93 of 2009 before this Court and this Court set aside the order passed by the Appellate Tribunal and restored the order passed by the Commissioner of Customs. The respondents have not challenged the order passed by this Court in CMA. No. 93 of 2009 and therefore, that order is final, and now, the respondents cannot say that the appellant has not proved its case beyond reasonable doubt and also they have retracted the statements. The respondents have not challenged the order passed by this Court in CMA. No. 93 of 2009 and therefore, that order is final, and now, the respondents cannot say that the appellant has not proved its case beyond reasonable doubt and also they have retracted the statements. Therefore, the learned counsel for the appellant would submit that the present appeals to be allowed and the judgment of the learned Additional Chief Judicial Magistrate is liable to be set aside and he would also place reliance on the judgment of this Court in Commissioner of Customs, Tricky v. S. Janarthanan CMA No. 93 of 2009 dated 27.02.2015. Further, he would place reliance on the common judgment of this Court made in A.S. Constructions and Lighting Co., represented by its Partner M. Nandakumar and Others v. Additional Director of Revenue Intelligence, Chennai and Others W.P. Nos. 29743 to 29745 of 2014 dated 06.01.2015. 10. The learned counsel for the respondents would submit that in this case, the sanctioned proceedings is not established and the person, who has sanctioned the prosecution has not been examined to establish that he has applied his mind and accorded sanction. However he would submit that the seized articles and the sandal woods were not produced before the Court and the Material Objects were not identified. Further, he would submit that no independent witnesses were examined to establish that the godowns were searched and goods were seized. Further, he would submit that the statements made by the respondents were subsequently retracted and therefore, the retracted statements of the respondents/accused cannot be relied for convicting the respondents/accused and in the confiscating proceedings, the Customs Commissioner, though imposed penalty under Section 114 of the Customs Act, subsequently, the Appellate Authority set aside the order of the Customs; though this Court has set aside the order of the Appellate Tribunal, the order passed in the confiscating proceedings under Section 114 of the Customs Act is nothing to do with the criminal case; In the criminal case, the prosecution has to prove its case beyond reasonable doubt and they cannot solely relied on the decision passed by the quasi-judicial authority. Therefore, the learned trial Judge rightly appreciated the entire evidence of the prosecution and disbelieved the case of the prosecution and found that the respondents/accused are not found guilty and acquitted them and there is no merit in the appeals and the appeals are liable to be dismissed and in the appeal against acquittal, accused got double presumption of innocence, unless there is no compelled circumstances warrant, the Appellate Court will not interfere with the judgment of acquittal passed by the trial Court. Unless there is perversity in appreciation of evidence, merely because the other views are possible, normally the Appellate Court will not take a different view and substitute its unfair reason and reverse the judgment of acquittal. The learned counsel for the respondents placed reliance on the following judgments of this Court and the Hon'ble Apex Court:- (i) Commissioner of Customs (Imports) v. Sainul Abideen Neelam and Another, (2014) 300 ELT 342 : LNIND 2013 MAD 550; (ii) Ramesh Babulal Doshi v. State of Gujarat, AIR 1996 SC 2035 : (1996) 9 SCC 225 : LNIND 1996 SC 908 : (1997) 1 MLJ (Crl) 83; (iii) S. Janarthanan v. Commissioner of Customs, Chennai, 2006 (197) ELT 44 (Tri. -Chennai); and (iv) Sunil Kumar Sambhudayal Gupta (DR.) and Others v. State of Maharashtra, (2010) 13 SCC 657 : LNIND 2010 SC 1088 : (2011) 1 MLJ (Crl) 672. 11. Heard the rival submissions made on both sides and perused the materials available records. 12. The case of appellant/prosecution is that on 10.03.1998, the officers of the Customs, Preventive Division, Tuticorin, searched the godown at No. 111, Ettayapuram Road, Tuticorin and found rows of cartons stacked in the southern side of godown and three persons were also seen there. On enquiry, one person identified himself as Nathan of Trichy and stated that he had employed other two persons, viz., Selvaraj and Kalkan for packing the goods. The officers found 476 cartons in the godown. Out of which, 419 of them containing sandal wood and 57 containing roofing tiles, intended for export to Singapore. Sri R. Kalkan stated that as directed by Nathan, he along with one Selvaraj had come to the godown for packing the tiles and that he did not know anything about sandal woods. Sri Selvaraj also stated to the same effect. Out of which, 419 of them containing sandal wood and 57 containing roofing tiles, intended for export to Singapore. Sri R. Kalkan stated that as directed by Nathan, he along with one Selvaraj had come to the godown for packing the tiles and that he did not know anything about sandal woods. Sri Selvaraj also stated to the same effect. The sandal woods, the export of which was prohibited under the Customs Act, the Foreign Trade (Development and Regulation) Act, 1992 and the EXIM Policy 1997-2002, were seized by the officials. The roofing tiles, which appear to have been used for concealing the sandal woods were also seized by them. The officers also searched Room No. 212 of Chitra Lodge, Tuticorin on the same day and recovered documents including Visiting Card of one Sri. Rahman Sait. Sri. Nathan, who in his statement dated 11.03.1998 admitted that his real name was Rahman Sait and the above Visiting Card was that of him. He further stated that he had come to meet one Sri. Dhanapal, who had illicit dealing in sandal woods and made discussion with him for smuggling of sandal woods to foreign countries and in one such meeting, Dhanapal told him that he was going to discharge sandal woods illicitly through Tuticorin Port and wanted suitable persons for doing that job. Accordingly, Rahman Sait @ Nathan suggested the name of Alexander, who is the respondent in Crl.A. No. 59 of 2009, who was running M/s. Gilbert Overseas Shipping Company at Tuticorin and in December 1997, he met Dhanapal, who told him that 10 tons of sandal woods were to be smuggled to Singapore and that he contacted the said Alexander, who agreed to arrange it for illicit export and 200 bags of sandal woods were sent to Alexander, which were kept in godown. Since the said Alexander did not pursue the export in the manner as stated by him, the said Rahman Sait @ Nathan (R5), along with Dhanapal (R1), met one Mydeen (R2) of Mannadi, who was an exporter in Chennai and discussed the matter and it appears that the second respondent Mydeen told that he would arrange illicit export through one Janarthanam @ Janar (R3) in Crl.A. No.58 of 2009. Accordingly, he met R3-Janarthanam @ Janar on 02.03.1998 and requested for arranging a godown and the said Janarthanam @ Janar (R3) arranged a godown through his friend Hari Ganga Ram. 13. During investigation, it came to the knowledge of the appellant Department that Janarthanam @ Janar (R3) took export business under the panel "Janar Exports" and his relative Sri. Mohan introduced Mydeen (R2) of Chennai to him and the second respondent Mydeen asked the third respondent Janarthanam @ Janar to help him in exporting the goods, such as sandal woods through Tuticorin Port and on 02.03.1998, the second respondent Mydeen contacted him over phone and told him that he got one order for export of Mangalore Tiles to Singapore from one Nathan (R5) and requested for arranging a godown. On 06.03.1998, Mydeen (R2) sent documents by fax and asked Janarthanam @ Janar (R3) to file the shipping bill as roofing tiles. On 07.03.1998, Janarthanam @ Janar (R3) handed over the documents to Ramesh (R4) for filing shipping bill, who also filed the same through C & F Agent M/s. Ukkirapandian Pillai & Sons. On 09.03.1998, Rahman Sait @ Nathan (R5) came to the office of Janarthanam @ Janar (R3), to ascertain whether the shipping bill was filed and also informed 2 tons of sandal woods were also part of roofing tiles. It appears that there has been some altercation between R3 and R2 with regard to the nature of sandal woods in the guise of roofing tiles, but, however, the procedure of filing shipping bill proceeded through Ramesh (R4), who corroborated the statement of Janarthanam @ Janar (R3). Therefore, after investigation, they filed the case before the learned Additional Chief Judicial Magistrate and the learned Additional Chief Judicial Magistrate also taken cognizance of the complaint in C.C. Nos. 2 of 2003 and 4 of 2004. After trial, the learned Additional Chief Judicial Magistrate found that the prosecution has failed to prove its case, which warrants interference. 14. In this case, the trial Court found that the sanctioned authority has not been examined and therefore, the sanction of prosecution was not established and the goods were not produced before the Court and the statements given by all the accused have subsequently been retracted and therefore, the trial Court found that the prosecution has failed to establish its case beyond reasonable doubt. In this case, the prosecution has examined 7 witnesses and marked 13 documents and produced 2 M.Os. and one Ex. C1. Though the learned counsel for the respondents would submit that the witnesses have turned hostile and they have not supported the case of prosecution and the seized goods were also not established, since they were not produced before the Court, One Mr. Kalai Mani, who was examined as P.W. 2, has clearly stated about the sanction of prosecution. Though the officer, who sanctioned the prosecution was not examined in this case, the person who acquainted with the sanction of prosecution proceedings in this case, was examined as P.W. 2 and he has clearly spoken about the sanction of prosecution and also the sanctioned authority has applied his mind and accorded the sanction and so, mere non-examination of the officer, who has accorded the sanction, is not fatal to the case of the prosecution, when it was corroborated by other witnesses in this case. One Mr. Sriram, I.R.S., was examined as P.W. 3 and he has clearly deposed that on 10.03.1998, he received secret information about the smuggling of sandal woods and they went to the spot, viz., Tuticorin, Ettayapuram Road and searched the godown at Door No. 111 at about 11.30 hours and when he went to the place, the officers enquired the persons, those who were in the godown and recorded their statements and he has also seen the sandal woods and also the Mangalore roofing tiles in the godown and they also recovered Mangalore roofing tiles and also the sandal woods through Mahazars and he has also signed in the Mahazars. Therefore, searching of godown at No. 111, Ettayapuram Road, Tuticorin on 10.03.1998 was established. 15. One Sankaralingam was examined as P.W. 4, who had clearly deposed that when he was working as Customs Inspector during 1998 in Tuticorin, he received the information that in Tuticorin, Ettayapuram Road, some of them hided the sandal woods and he went to the place and one of the respondents Harigangaram has given statement, which is marked as Ex. P8 and one Sundarrajan was examined as P.W. 5. He has also stated that they searched the company at Chennai and nothing was recovered during the search. P.W. 6, one Mayilerumperumal was examined and he has spoken about the photographs taken on 17.11.2007 and the CD, which were marked as M.Os. P8 and one Sundarrajan was examined as P.W. 5. He has also stated that they searched the company at Chennai and nothing was recovered during the search. P.W. 6, one Mayilerumperumal was examined and he has spoken about the photographs taken on 17.11.2007 and the CD, which were marked as M.Os. 1 and 2 and one Balraj was examined as P.W. 7 and he has spoken that on 17.11.2007 at about 10' O clock, he went to the godown and where he recovered 2720 Mangalore roofing tiles and also recovered 57 cartons containing 2280 roofing tiles and at that time, they also taken photographs in their presence. During investigation, the statements were also recorded from the respondents and the statements recorded from Rahman Sait (R5) was marked as Ex. P3 and has clearly deposed about the overt act attributed in this case and the statement recorded from Janarthanam (R3) was marked as Ex. P4 and the statement recorded from Ramesh (R4) was marked as Ex. P5 and the statement recorded from Mydeen (R2) was marked as Ex. P6 and the Mahazar is marked as Ex. P7 and the statement recorded from one Harigangaram was marked as Ex. P8 and the identity card of Antony Rajan was marked as Ex. P9 and the Mahazar dated 10.03.1998 was marked as Ex. P10 and the statement of one Aiyarappapillai was marked as Ex. P11. Further, the show cause notices issued by the Commissioner of Customs No. 1, Williams Road, Cantonment, Trichy was marked as Ex. P12. From the evidences of P.W. 1, the sanction of prosecution was established and from the statements given by the respondents from Exs.P3 to Ex. P6, it is clear that all the respondents have involved in the offence. 16. Though Ramesh (R4) in Crl.A. No. 58 of 2009 is not directly involved in this case, even though after knowing fully well that the other respondents attempted to smuggle the sandal woods under the guise of roofing tiles, he has not informed to the Customs Authority and therefore, he is also abide the same to the other accused. 17. The prosecution has filed the case for the offence under Section 135(A) of the Customs Act, which is with regard to the offence for the preparation and also Section 135(1)(A)(ii) r/w. 135(A), which is relating to attempt to smuggle through Tuticorin Port to Singapore under the guise of roofing tiles. 17. The prosecution has filed the case for the offence under Section 135(A) of the Customs Act, which is with regard to the offence for the preparation and also Section 135(1)(A)(ii) r/w. 135(A), which is relating to attempt to smuggle through Tuticorin Port to Singapore under the guise of roofing tiles. Though they prepared the bills, but one or some reasons, they could not succeed in this. But the prosecution has filed this case against the respondents for preparation and also attempt to smuggle. On reading of the case of the prosecution and also a perusal of the prosecution witnesses and the statements recorded from the respondents, the prosecution has established the charges as levelled against the respondents. As already stated, mere non-examination of the sanctioning authority is not fatal to the case of the prosecution. 18. The cases cited by the learned counsel for the respondents are not applicable to the present case on hand. There is no quarrel with the propositions of law laid down by the Hon'ble Supreme Court and also the legal propositions followed by this Court, whereas in this case, it is a peculiar nature that the persons, who wanted to export the sandal woods, are not ready to declare the goods and pay the customs' duty and thereby, violated the EXIM Policy and Foreign Trade (Development and Regulation) Act, 1992 and they attempted to smuggle the goods under the guise of roofing tiles and contacted the persons from Chennai, and also contacted other persons in the way, but could not succeed, where all the respondents are involved in this case and the statements recorded from the respondents Exs. P3 to P6 have clearly established the involvement of the respondents in this case. Though the main defence taken by the respondents that the statements given by the respondents were subsequently retracted, but in this case, though they have retracted, but the fact remains that the prosecution has proved its case beyond reasonable doubt that they have attempted to smuggle the goods. 19. Though the main defence taken by the respondents that the statements given by the respondents were subsequently retracted, but in this case, though they have retracted, but the fact remains that the prosecution has proved its case beyond reasonable doubt that they have attempted to smuggle the goods. 19. Though the learned counsel for the respondents has stated that the goods were not seized within the customs area, but this case is not for the offences of misdeclaration and smuggled the goods, but in this case, the offences are only preparation and attempt, and in this case, the persons, who were not connected with Tuticorin, had taken the sandal woods from Chennai to Tuticorin and kept in godown. Though the learned counsel for the respondents would submit that the owners of the goods have not been established and the recovery of goods have not been established, but the evidence of the prosecution and the statements of the respondents clearly show that Dhanapal (R1) plays main role in this case, who wanted to smuggle the sandal woods and when he searched the person, he contacted R5, and in turn R5 contacted R2, but they could not do that job and therefore, R3 also turned into the picture and R4 for filing the shipping bill. Therefore, reading of the entire evidence and also the order of this Court in CMA No. 93 of 2009 dated 27.02.2015 clearly goes to show that all the respondents are involved in this case and also the prosecution has established its case through oral and documentary evidence and complicity of the respondents involved in the offences, but the respondents have not established that the statements given by them before the Customs Officers itself are under force or coercion or undue influence or any threat. But reading of the entire evidence would clearly shows that the statements were voluntary one. 20. Even though it was argued that Janarthanam @ Janar (R3) had retracted the statement and the same was not voluntary one, but others in whose statements he was implicated, had also retracted their statements. Janarthanam @ Janar (R3) was contacted Mydeen (R2) through Sri. But reading of the entire evidence would clearly shows that the statements were voluntary one. 20. Even though it was argued that Janarthanam @ Janar (R3) had retracted the statement and the same was not voluntary one, but others in whose statements he was implicated, had also retracted their statements. Janarthanam @ Janar (R3) was contacted Mydeen (R2) through Sri. Mohan, for export of onions, tiles, etc., After filing the shipping bill by Ramesh (R4), Rahman Sait (R5) informed about sandal woods being part of the consignment and he had immediately asked Ramesh (R4) to cancel the shipping bill, but on intervention by Mydeen (R2) that if he did so, he would involve him, he did not take any further action. But he informed the facts to Ramesh (R4). As he had no knowledge, he could not be charged under Customs Act. The sandal woods were in the process of being packed and there was no attempt made to export the same. On a perusal of the records, it is admitted fact that the said R3 was informed by Rahman Sait about the sandal woods being part of roofing tiles. Inspite of having knowledge, he did not inform the same to the Customs and he rather informed Sri. Mydeen (R2) for monitory consideration to do that. Therefore, R3 was also involved in this case. This Court already found in CMA that the Commissioner found that inspite of having knowledge of the sandal woods being part of the consignment of roofing tiles, they did not intimate the same to the Customs Authorities. Therefore, though the respondents have stated that no ownership is established and the goods also not produced before the Court, but the fact remains that all the respondents, in one way or other, knowing fully well that the sandal woods were kept in the godown and making attempt to smuggle the goods to Singapore in the name of roofing tiles, but they have not informed the same to the Customs officials at the moment when they came to know that the sandal woods are being part of the roofing tiles. 21. 21. Therefore, in the absence of the statements given by the respondents, obtained by the customs officials otherwise in the manner known to law, it is well settled law that any statement made before the Customs Officers is admissible in evidence and when the order of the Assistant Commissioner as confirmed by this Court in CMA No. 93 of 2003 and the penalty imposed by the Commissioner to the respondents were confirmed and none of the respondents have filed any appeal challenging the order of the Court, now, they cannot say that the statements given by them were subsequently retracted and the Court cannot rely on the retracted statements. It is well settled proposition of law that the customs officials are not the police officials and therefore, the statements given before the customs officers are admissible in evidence and therefore, from the evidences of prosecution, the prosecution has proved its case beyond reasonable doubt as the charges framed against the respondents are only preparation and attempt to smuggle. Though before the trial Judge, the photographs of the sandal woods were also taken and produced, the learned trial Judge also inspected the godown and also seen the materials that due to the larger quantity, it could not be produced before the Court trial during the trial and therefore, the non-production of sandal woods or roofing tiles before the trial Court during the trial cannot be fatal to the case of prosecution. 22. On reading of the entire evidences of the prosecution and the statements given by the respondents before the Customs officials and also the photographs which were produced before the Court as Material Objects it is seen that the penal proceedings were taken by the Department, which was confirmed by this Court and admittedly the respondents have not challenged the order of this Court regarding penalty proceedings. Therefore, in these circumstances, this Court comes to the conclusion that the prosecution has proved its case beyond reasonable doubt that the respondents made a preparation and attempt to smuggle the sandal woods in the name of roofing tiles and as per Foreign Trade (Development and Regulation) Act, 1992, EXIM Policy and Foreign Trade Policy 1997-98, the sandal woods are prohibited items for exporting. The learned trial Judge failed to consider the legal as well as factual position in this case and even though there is sufficient materials available to convict the respondents for the charged offences, he has not appreciated the evidence properly in right perspective to give effect to the Specific provisions of the Customs Act and this Court finds that the appellant has not proved its case and the respondents are not found guilty for the offence under Section 132 of Customs Act and all the respondents are acquitted for the said offence. The appellant/Customs Department has proved its case beyond reasonable doubt for the offence punishable under Sections, 135(1)(a)(ii) r/w. 135(A) of the Customs Act and therefore, they are convicted under Sections 135(1)(a)(ii) r/w. 135(a) of the Customs Act. Therefore, the judgment of the learned trial Judge is liable to be set aside and accordingly, set aside, in this regard. 23. Since it is a reversal judgment, before awarding sentence, the accused have to be given opportunity for being asking the question of sentence. 24. In the result, the Criminal Appeal stands allowed in part and the acquittal of respondents in both the appeals for the charges under Section 132 are confirmed and for the charges under Sections, 135(1)(a)(ii) r/w.135(a) of the Customs Act, by the learned Additional Chief Judicial Magistrate, Madurai, in C.C. Nos. 2 of 2003 and 4 of 2004 vide separate judgments dated 23.05.2008 are hereby set aside. The respondents in both the appeals are directed to appear before this Court on 23.11.2019 for being asking the question of sentence. Crl.A.(MD) No. 58 and 59 of 2009 When the matter is listed under the caption for 'Question of Sentence' today for the appearance of the parties, none appeared. 25. Learned counsel appearing for the Department submits that the accused have been absconded and they may be in North India. 26. Since the respondents have not availed the opportunity given by this Court and the matter is pending for more than 10 years, this Court, in the absence of availing the right of the parties, is inclined to pronounce the sentence. 27. Since the respondents/accused were acquitted for the offence under Section 132 of Customs Act and convicted for the offence under Section 135(1)(a)(ii) r/w 135(A), respondents/accused in Crl.A.(MD) No. 58 of 2009 shall undergo imprisonment of one year and pay fine for a sum of Rs. 27. Since the respondents/accused were acquitted for the offence under Section 132 of Customs Act and convicted for the offence under Section 135(1)(a)(ii) r/w 135(A), respondents/accused in Crl.A.(MD) No. 58 of 2009 shall undergo imprisonment of one year and pay fine for a sum of Rs. 50,000/- each, in default, to undergo six months rigorous imprisonment and respondent in Crl.A.(MD) No. 59 of 2009 shall undergo one year imprisonment and to pay a fine of Rs. 50,000/-, in default, to undergo six months rigorous imprisonment. 28. Department is directed to secure the respondents/accused to undergo the sentence of imprisonment imposed by this Court. 29. Mr. S. Jothimani, Legal Aid Counsel for the respondents in both the appeals is entitled for fee as per the Rules.