1981 (1) TMI 79 - HC - Customs

Search - Seizure can be made by a police officer under Section 110 of the Customs Act - Smuggled gold - Confession made before an unauthorised Customs Officer - Validity

Summary

Issues Involved:
1. Legality of the search and seizure.
2. Authority of the police officer to conduct the search and seizure.
3. Validity of the seizure under the Customs Act.
4. Proof of the seized articles being gold.
5. Classification of the seized gold as primary gold.
6. Conviction under Section 85(ii) and (ix) of the Gold Control Act.
7. Conviction under Section 135(1)(b) of the Customs Act.
8. Admissibility of the appellant's statement recorded by the Excise Official.
9. Appropriateness of the sentence imposed by the trial court.

Detailed Analysis:

1. Legality of the Search and Seizure:
The search and seizure conducted by P.W. 2, the Sub-Inspector of Police, Narakkal, were challenged on the grounds that he was not authorized under Section 105 of the Customs Act. However, the court held that under the provisions of the Code of Criminal Procedure, P.W. 2 had the authority to conduct the search, making it lawful. The court cited the Supreme Court decision in State of Maharashtra v. Natwarlal (AIR 1980 S.C. 593), which stated that even if a search was illegal, it would not affect the validity of the seizure and subsequent trial.

2. Authority of the Police Officer:
The court examined whether P.W. 2 had the authority to seize the gold under Section 110 of the Customs Act. It was established that the Central Government, through a notification, had empowered police officers in Kerala, including those in Ernakulam District, to perform functions under Sections 100, 101, 102, 104, 106, and 110 of the Customs Act. Therefore, P.W. 2 was a "proper officer" authorized to seize the goods.

3. Validity of the Seizure:
The court confirmed that the seizure was lawful as P.W. 2 had reason to believe that the gold bars were liable for confiscation under Section 111 of the Customs Act. The court noted that the import of gold into India had been prohibited since 1947, and the gold bars bore foreign markings, indicating they were contraband.

4. Proof of the Seized Articles Being Gold:
The prosecution had to prove that the seized articles were indeed gold. The court relied on the testimony of P.W. 11, a competent Chemical Examiner, who confirmed the bars were gold with a purity of more than 99.5%. The court dismissed the argument that the specific procedures under the Gold Control Act for sampling and testing were the only valid methods, stating that the primary purpose of these procedures was to determine the quality of gold, not its identification.

5. Classification as Primary Gold:
The court agreed with the trial court that the gold bars fell under the definition of "primary gold" as per Section 2(r) of the Gold Control Act, which includes gold in any unfinished or semi-finished form such as bars.

6. Conviction under Section 85(ii) and (ix) of the Gold Control Act:
The court upheld the conviction under Section 85(ii) for possession of primary gold but found no evidence that the appellant was carrying on any business or transaction in gold as required under Section 85(ix). Therefore, the conviction under Section 85(ix) was set aside.

7. Conviction under Section 135(1)(b) of the Customs Act:
The court held that the prosecution had proven beyond reasonable doubt that the gold bars were contraband of foreign origin. The appellant failed to provide any lawful authority for possession. The court used Section 123 of the Customs Act to shift the burden of proof to the appellant, who did not discharge this burden. The foreign markings on the gold bars and the appellant's inability to explain their possession led to the conclusion that he knew or had reason to believe they were liable for confiscation.

8. Admissibility of the Appellant's Statement:
The trial Magistrate had relied on a statement recorded from the appellant by an Excise Official under Section 107 of the Customs Act. However, the court found no evidence that the officer was empowered under Section 107 or was a gazetted officer under Section 108 at the time, rendering the statement inadmissible.

9. Appropriateness of the Sentence:
The court noted that the trial Magistrate had been lenient, imposing only a fine under Section 135(1)(b) of the Customs Act and no separate sentence under the Gold Control Act. Although the Magistrate should have imposed a sentence under Section 85(2) of the Gold Control Act, the court chose not to interfere with the sentence due to the passage of time and other circumstances.

Conclusion:
The High Court confirmed the conviction and sentence imposed by the trial Magistrate, dismissing both the appeal and the revision petition.