TMI Blog2002 (7) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, was on duty at the Dabolim Airport on 13th May, 1987. The applicant/accused had arrived at the Dabolim Airport by domestic flight from Bombay. P.W. 2 Shridaran noticed that the accused was moving in a suspicious manner. The applicant/accused was therefore, intercepted while he was proceeding to the exit gate with his baggage. The personal search of the accused, which was taken in the presence of the panch witness P.W. 4 S. Royan and another person, yielded the recovery of 4 gold biscuits of 10 tolas each wrapped with an adhesive tape on the sole of the left foot. Four gold biscuits of 10 tolas each and one gold biscuit of 50 gms., was found similarly taped by an adhesive tape on the right sole. It was found that all the gold biscuits were of foreign origin having a total weight of 850 grams and valued at Rs. 2,78,730/-. It appears that the applicant was unable to produce any documents to prove the legal import of the said gold. The contraband gold was, therefore, seized under a panchnama dated 13th May, 1987. The panchnama is at Exhibit P.W. 2/A. The complaint, therefore, came to be filed against the present applicant before the trial court, the trial court framed a charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the prosecution, and (2) Section 102 of the Customs Act, 1962, is a provision which is pari materia with Section 50 of the N.D.P.S. Act. The compliance of Section 102, therefore, is mandatory and in the absence of any evidence on record to suggest that the applicant/accused had been apprised of his right to be searched in the presence of either a Gazetted officer or a Magistrate, the search and seizure is rendered illegal and no conviction could be based on such search and seizure. 5.Section 123 of the Customs Act, reads as under :- "123. Burden of proof in certain cases. - (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 goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ridaran. Curiously P.W. 2 Shridaran is the seizing officer and he speaks about seizure of only 8 gold biscuits of 10 tolas each. Mr. Bhobde invited my attention to the following answer given by P.W. 2 Shridaran in response to a question in the cross-examination : "I say that the biscuits are of pure gold because we have tested them. The Department had got the biscuit tested from the goldsmith. I was not present at that time when it was tested nor do I know the name of the goldsmith. One of the officer had taken the biscuits for testing but I do not know his name. It is the concerned officer who had informed me. Whose names I do not know. His name will be on record." 9.Mr. Bhobde has urged on the basis of the above quoted admission of P.W. 2 Shridaran that this fact is not stated in the panchnama at Exhibit P.W. 2/A. According to the learned counsel for the applicant P.W. 2 Shridaran has also not clarified as to when the gold biscuits were taken out for testing. Obviously, according to the learned counsel, the gold biscuits must have been taken to the goldsmith prior to sealing. There is no evidence, as per the submission of the learned counsel, that the gold biscuits were in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention that either the biscuits had been sent to the goldsmith or that the goldsmith had come to the scene of offence. This vital aspect of the prosecution case is completely shrouded in mystery and despite the examination of 8 witnesses the prosecution has not been able to clear the clouds of doubt, which hover over the prosecution. For shifting of burden under Section 123 and for eventual conviction under Section 135 of the Customs Act, it is sine quo non that the prosecution should establish that what was seized from the possession of the accused was contraband article within the meaning of Section 123. Section 135 prescribes certain minimum punishments and also prescribes an enhanced punishment in case the value exceeds Rs. 1 lakh. The Customs officers have, therefore, to be all the more vigilant in adducing evidence before a court of law to substantiate the allegations which are made by them in the complaint. In the present case there is absolutely no evidence whatsoever that what was seized from the possession of the accused were gold biscuits. 13.Mr. Bhobde, the learned counsel for the applicant has relied on the judgment of the learned Single Judge of the Karnataka Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Section 50 of the N.D.P.S. Act. The said judgment of the learned Single judge is binding on me and it is preferred to the judgment of the learned Single Judge of the Madras High Court. 16.I have perused the evidence of the prosecution witnesses, the complaint and the panchnama and it appears that the right available to the accused under Section 102 of the Customs Act of being searched in the presence of either a Gazetted Officer or a Magistrate has not been informed to the accused. There are no averments in the evidence, in the complaint or in the panchnama that the accused was apprised of his right under Section 102 of the Customs Act. Section 102 of the Customs Act provides that in case the search and seizure is made in pursuance to the powers thereof conferred under Sections 100 and 101, the accused, if he so desires, may be produced before a Gazetted Officer or a Magistrate. The rigour of Section 102 and of Section 50 is identical. Admittedly, in this case P.W. 2 Shridaran was exercising his powers of search and seizure under Section 101 of the Customs Act. The mandatory requirement of apprising the applicant/accused of his right under Section 102 has not been complied w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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