TMI Blog2020 (1) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure of contraband gold from the conscious possession of accused. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of accused on 8-3-1991, was legal. Before prosecution seizing any gold in person, there are certain formalities to be followed as mentioned in Section 102 of the Customs Act, 1962. It is the obligation of the officer of customs to apprise the suspect of the rights available to him under Section 102, viz. to be taken to the nearest Gazetted Officer of customs or magistrate. This is a necessary sequence to be complied with for enabling the suspect exercise his rights; and the failure to do so will render such valuable rights conferred to the suspect under Section 102 illusory and a mere farce. The choice, whether to be taken to the nearest Gazetted Officer of customs or a magistrate, lies with the suspect and in the event such choice is made known by him to the officer of customs, he shall be searched only in that manner. It is not up to the officer of customs to make this choice or elect before whom the accused is to be taken. Therefore, even assuming that the officer taking the search is a Gazetted Officer, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to Yusuf Meher Road and Mohammed Ali road between 15.30 hrs and 16.00 hrs and would receive from one person about 10 foreign marked gold bars. Accordingly, the officers of DRI kept surveillance at the place indicated and intercepted respondent no.1 as per the description received by them. On inquiry, respondent no.1 admitted that he was carrying 10 foreign marked gold bars in his pant pocket. Considering the location as unsafe to conduct further inquiry and recover the gold bars, respondent no.1 was taken to the office of customs department at Construction House, Ballard Estate, for further inquiry and in the presence of panchas, 10 foreign marked gold bars were recovered from the person of respondent no.1 under seizure panchnama. During interrogation, it was found that respondent no.1 was carrying on his business at Room Nos.19/20, 4th floor, Cothol Chakala Lane, Borabazar, Fort, Bombay (the said premises), through his servant Narayn Singh, who is respondent no.2 (original accused no.3). Respondent no.1 further revealed that on that day at about 17.30 hrs., respondent no.2 would be carrying / receiving some gold bars as well as cash at the said premises from one Manoj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are officers of appellant. None of the panch witnesses, as noticed in few other cases heard and disposed by me, have been produced to testify. I have to also note that only the statement under Section 108 recorded by the prosecution of respondent no.3 has been exhibited. Other statements are not even produced. Even the sanction to prosecute has not been produced. I should add that, even the complaint has not been proved and exhibited. The following are the list of exhibits : 1. Exhibit P-1 Panchnama 2. Exhibit P-2 Search authorisation 3. Exhibit P-3 Forwarding letter to the Mint and 4 assay report (colly marked) 4. Exhibit P-4 - (colly marked) Letter to RBI dated 11-3-1991 5. Exhibit P-5 letter received from RBI dated 11-4-1991 and 4-5-1991 (colly marked) 6. Exhibit P-6 3 deposits memo (colly marked) Article A - 2 telephone bills and one photograph 7. Exhibit P-7 Summons 8. Exhibit P-8 Statement of Madanlal 9. Exhibit P-9 Panchnama (2 pages) 7. Trial court has very rightly recorded the shoddy manner in which appellant has prosecuted this matter. Even to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials placed before it by the prosecution. That can be had in two ways. First is by production and proof of the original sanction which itself contains the facts constituting the offence as well as the grounds of satisfaction. Second is by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it. In the case before us Exh. 14 itself shows that the sanction was accorded after considering the material on records and being satisfied of the facts constituting the offence. Application of the mind is clear from the order itself. Further evidence in that respect is, therefore, not necessary. Such evidence is necessary only in cases where the order of sanction is not self evident. 9. It is rather unfortunate that this sanction was also not proved through witnesses and consequently, the sanction is not exhibited. Therefore, one could safely state that the prosecution itself is vitiated. 10. Therefore, the complaint is not proved and exhibited and the sanction also is not proved and exhibited. On these grounds alone, the appeal has to be dismissed. 11. As noted earlier, none of the panch witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of Customs Act, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. These are necessary safeguards available to an accused against the possibility of false involvement and therefore, the procedure prescribed has to be meticulously followed. The communication of this right has to be clear, unambiguous and individual. Accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. I find support for this view in many decisions rendered by the Apex Court and other High Courts under the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act 1985 and in particular State of Rajasthan Vs. Parmanand and Anr. (2014) 85 ACC 662. The only difference between Section 102 of the Customs Act and Section 50 of the Narcotic Drugs and Psychotropic Substances ACT, 1985, (NDPS Act) is under Section 50 of NDPS Act the person has to be searched either in the presence of a nearest Gazetted Officer of any of the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside. 13. Apex Court in State of Punjab Vs. Baldev Singh 1999(6) SCC 172, though that judgment was rendered under the provisions of NDPS Act, held that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. This court in Yusuf Suleman s case (Supra) has held that the wording of Sub-section 1 of Section 102 is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act which is held to be mandatory. 14. The provisions of Section 102 of The Customs Act, 1962 ( the said Act ) accord a protection to the suspect prior to a search being taken under section 100 or 101 of the said Act. Such protection is with the view to ensure that such search is taken with good cause and to lend credence to the evidence derived from such search. The expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. It was submitted before constitutional Bench of Hon ble Supreme Court read as under: 14.Adopting the same line of arguments, Mr. P.P. Malhotra, the learned Additional Solicitor General, appearing on behalf of the Government of NCT of Delhi maintained that it is clear from language of Sections 41(2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted officers differently, reposing higher degree of trust in them and, therefore, if a search of a person is conducted by a gazetted officer, he would not be required to comply with the rigours of Section 50(1) of the Act. It was argued that the view expressed by this Court in Ahmed (supra), is incorrect and, therefore, deserves to be reversed. But the Hon ble Supreme Court has considered who will be a more appropriate authority between a Gazetted Officer and a Magistrate. In paragraph 32 Supreme Court stated as under : 32. We also feel that though Section 50 gives an option to the empowered officer to take such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g about having appraised accused of their right and asked whether they wanted to get their personal search in the presence of a Gazetted officer or a Magistrate. Therefore, on this ground alone, the search of the person of accused or seizure of gold has to be held as illegal. 18. As stated earlier, only the statement of respondent no.3 is exhibited. Though respondent no.3 is supposed to have confessed his involvement in the offence, I would still not consider the same as valid confession. This is because, P.W-2 A.V. Redekar, in his evidence says that Madanlal Mali, respondent no.3 appeared before Shri Shidhore. Shri Shidhore interrogated Madanlal in Hindi and Madanlal gave replies in Hindi. P.W.-2 says that statement of respondent no.3 was reduced into writing in Hindi and P.W.-2 himself scribed the statement. But the statement which is at Exhibit 8 is in English. Moreover, in his cross-examination, P.W.-2 says that it is not true to say that he scribed the statement in English and asked accused to sign it. It is for anyone to see that the statement is in English but at the end of the statement, there is an endorsement in Hindi, allegedly made by respondent no.3 that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion. 20. The Apex Court in Chandrappa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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