TMI Blog2020 (1) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... cause and to lend credence to the evidence derived from such search. The expression if such person so requires in Section 102 necessarily implies that to enable him to exercise his legal rights under Section 102, he should be made aware of such rights. 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 suspect will be denied of this additional degree of protection / opportunity if a Gazetted Officer himself takes search and does not apprise the suspect of his rights under Section 102 thereby the procedural requirements of Section 102(3) not being complied with. It is settled law that even though a statement recorded under Section 108 is admissible in evidence, it has no evidentiary value unless it is corroborated by independent witnesses. Moreover, in this case, respondent has retracted and in his retraction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to deliver it near a pan beedi shop at Abhinandan Market, Kalbadevi Road, Mumbai. The Officers of appellant alongwith the informant, reached the spot and kept a watch. When respondent no.1 reached the spot, as per the information received by the Officers, the Officers apprehended respondent no.1 as he could not give satisfactory answers to the questions put to him by the said Officers. Accordingly, the Officers of appellant searched respondent no.1 and found some hard substance in his right hand side pocket of his trouser. On further persistent enquiry from the said Officers, respondent no.1 admitted that he was carrying 5 foreign marked gold bars of 10 tolas each. As the said place was an open market place and the Officers felt it was not safe for detailed search as well as seizure panchnama of respondent no.1, the said Officers took him to the Office of the Gold Control and produced him before the Superintendent of Customs Madhukar Krishnarao Pansare (PW-1). Thereafter, panchas were called and search was made of the person of respondent no.1. Appellant found 5 foreign marked gold bars of 10 tolas each, totally weighing 582.500 gms. and the local market value at that time was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Gold (Control) Act, 1968 was filed against respondent no.1 on 19th April 1991. I have to note that the sanction to prosecute respondent no.1 has been granted only on 19th April 1991, more than 2 years after respondent no.1 was intercepted and produced before the Magistrate and remand obtained. 6. Charges were framed and respondent denied charges. Respondent s case, as per suggestion put in cross examination as well as statement recorded under Section 313 of the Code of Criminal Procedure, is that respondent is innocent and these 5 foreign marked gold bars were foisted upon him and he has been falsely implicated in this case. 7. Prosecution to prove its charge, led evidence of six witnesses, viz., Madhukar Krishnarao Pansare, the then Superintendent of Customs (Preventive) Mumbai as PW-1; Sukhbinder Singh, an Intelligence Officer, who was present at the time of intercepting accused, as PW-2; Ganpat Anappa Shanbag, Superintendent of Customs (Preventive) as PW-3; Devchandra Asha Baba as PW-4; Ashok Kumar Chunilal Jain, seizure panch witness as PW-5; and Kamlesh Hastimal Parmar, seizure panch witness as PW-6. PW-5 and PW-6 turned hostile. In their evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Customs Act without appraising his right under Section 102 of the Customs Act, would become suspect and if there is any conviction based on possession of such search and seizure under the provisions of Customs Act, the same will have to be set aside. This is because sub-Section 1 of Section 102 mandates that When any officer of customs is about to search any person under 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 Psycho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the appellant under the provisions of the Customs Act without appraisal of his right to the accused under Section 102 of the Customs Act would become suspect and the conviction based on such search and seizure is liable to be set aside. In these circumstances, the conviction and sentence recorded against the appellant even under the provisions of the Customs Act is liable to be quashed and set aside. 9. Apex Court in State of Punjab V/s. 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) not being complied with. 11. The Hon ble Supreme Court has, in Vijaysinh Chandubha Jadeja V/s. State of Gujarat (2011) 1 SCC 609 para 32, observed that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus, associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid. 13. None of the witnesses PW-1 to PW-6 say anything about having appraised accused of his right and asked whether he wanted to get his 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. 14. Therefore, the seizure itself would be illegal if at all there has been really a seizure. Prosecution is relying purely on the statement recorded under Section 108 of the Customs Act. The prime witness for this statement is PW-1 Madhukar Pansare. His evidence itself demolishes his case because PW-1 states as under : After that I recorded statement of Mr. Jain. He was interrogated in Hindi. He replied in Hindi. Statement was written down in Hindi by him. Statement bears my signature. His signature is there on the statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused person and the situation where a reasonable explanation is tendered and had observed that a retracted confession cannot form the basis of a conviction. The Court had dealt with a situation whereby the validity of the confession is questioned on the ground that it is not voluntary or that it has been obtained by bulling the accused or by holding out an inducement that he would secure advantages by making a particular admission and in these circumstances had pointed out the dangers in relying on such a statement. It is true that in the earlier decisions , Percy Rustumji Besta v. State of Maharashtra and , Rameshchandra v. State of West Bengal, the Supreme Court had occasion to deal with the aspect of the admissibility of such a statement and it is now well settled law that since a Customs Officer is not a Police Officer a statement made to such an authority is admissible in evidence. Mr. Kotwal, has not disputed the admissibility but he has seriously assailed the evidentiary value of this statement in relation to the facts of the present case and to that extent the submission canvassed is a very sound and a valid one. In the case of Haroom Haji Abdullah v. State of Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly to my mind, that there is virtually no distinction between admissions contained in the 108 statement and these admissions made by the accused that the parcels in question are the very ones which were despatched by him and he therefore submits that such material can never come under the head of independent corroboration. The learned counsel is fully justified and perfectly right in this submission in so far as the corroboration required for the purpose of basing a conviction on 108 statement alone must necessarily be independent which pre-supposes that it is distinct and separate from statements and admissions made by the accused. 17. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I also find support in State of Maharashtra V/s. Harshad Vaherbhai Patel Ors. 2012 (1) Bom.C.R.(Cri)500 and unreported judgment of this court in Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh s j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct cannot be considered as admissible. In Hasmukh Harvgoind Shah (Supra) the Court has referred to a judgment of a Division Bench of Andhra Pradesh High Court in the case of Krishnaprasad V/s. Directorate of Enforcement 1992 Cri LJ 1888. Andhra Pradesh High Court in Krishnaprasad (Supra) had occasion to deal with the aspect as to whether the Customs Officer while recording a statement under Section 108 of the Customs Act has to administer a caution or warning embodied under Section 164 (2) of Code of Criminal Procedure before recording a statement of confessional nature from the person summoned. The Court held, failure to do so would make the statement so recorded inadmissible in evidence for any purpose. In other words, Andhra Pradesh High Court held that the statements recorded by empowered authority under Section 108 of the Customs Act, were inadmissible in evidence and liable to be eschewed from consideration for any purpose, as no caution or warning embodied under Section 164(2) of CrPC was administered to the person from whom the statement was recorded. 20. Bombay High Court (Panaji Bench) in Suleman Yakub Ors. V/s. S. Reynolds, Superintendent of Customs (Preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). 10. In the case of Assistant Collector of Central Excise, Rajamundry vs. Duncan Agro Industries Ltd. Ors., 2000(7) SCC 53 , this Court held that the provision in section 164 of Criminal Procedure Code empowers a Judicial Magistrate to record any confession or statement made to him during the course of investigation. The power conferred by Section 164, Criminal Procedure Code to record confessions and statements can be exercised only by a Judicial Magistrate. Even a police officer on whom power of a Magistrate has been conferred is forbidden from recording a confession. Sub-sections (2) and (4) deal with procedure which such Magistrate has to follow while recording inculpatory statements made by persons. Referring to section 108 of the Customs Act, this Court observed : Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him. 12. Reference was made to the decision in Romesh Chandra Mehta vs. State of West Bengal ( 1969) 2 SCR 461) wherein it was held : When an inquiry is being conducted under Section 108 of the Customs Act, and a statement is given by a person against whom the inquiry is being held it is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person. Therefore, the Apex Court held that since the statement under Section 108 of the Customs Act is not recorded by a Judicial Magistrate but the power is exercised by the Gazetted Officer of the customs department, Section 164 of Code of Criminal Procedure is not applicable. Of course, the court has to specially scrutinize and consider whether the statement recorded under Section 108 of the Customs Act can be considered to be voluntary. If so, they may be received against the maker and in the same way as confession are received. 21. Therefore, to that extent, the finding of the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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