TMI Blog2002 (2) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... id not disclose that he was carrying gold with him. However, on account of the aforesaid information the petitioner was taken to the x-ray machine room. There also he did not initially admit that he was carrying gold with him. However, on further interrogation, he admitted that he had hidden four golden biscuits in his rectum. Thereafter, he was taken inside the room and he demanded water After consuming some water, he extracted four golden biscuits from his rectum. Thereafter search was carried out with respect of his bag and it was noticed that there was a golden ring in the said bag. These articles were seized and statement of the petitioner under Section 108 of the Customs Act, 1962 (for short 'the said Act') was also recorded. After following necessary procedure, a complaint was filed before the learned Additional Chief Metropolitan Magistrate Ahmedabad. It was registered there as Criminal Case No. 40/96. The learned Magistrate recorded the evidence and ultimately found that the present petitioner was guilty for the offence punishable under Section 135 of the said Act. Therefore, he convicted him for the said offence and sentenced him to suffer R.I. for four years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the search would also be vitiated. It is, therefore, his argument that once the search and seizure stand vitiated then the entire case of the complainant falls to the ground and there would be no incriminating material against the petitioner for convicting him for the offence punishable under Section 135 of the said Act. 5. On the other hand, the learned Advocate for respondent No. 1 has argued at length that there are two sets of provisions made in Section 102 as well as in Section 103 of the said Act. It is his argument that if the provisions of Section 103 of the said Act are applicable then in that event, provisions made in Section 102 of the said Act would not come into play. 6. In order to appreciate the aforesaid arguments advanced by the learned Counsels for the parties, it would be necessary to refer the provisions made in Sections 102 and 103 of the said Act and, therefore, they are reproduced for ready reference as follows: Section 102. Persons to be searched may require to be taken before Gazetted Officer of Customs or Magistrate.--(1) When any officer of customs is about to search any person under the provisions of Section 100 or Section 101, the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er screening or X-raying the body of such person, forward his report, together with any X-ray picture taken by him, to the Magistrate without unnecessary delay. (6) Where on receipt of a report from a radiologist under Sub-section (5) or otherwise, the Magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction: Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner. (7) Where any person is brought before a Magistrate under this section, such Magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct. (8) Nothing in this section shall apply to any person referred to in Sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 102 and 103 of the said Act operate in separate fields. Section 102 would apply only when personal search of the body of the suspected person is required to be carried out. On other hand Section 103 of the said Act will apply when the body of the suspected person is required to be x-rayed. In the present case, the customs officers have opted to go for x-ray examination of the body of the petitioner, and, therefore, they had to follow the procedure laid down in Section 103 of the said Act. In that view of the matter, Section 103 of the said Act would prevail over Section 102 of the said Act. Therefore, it cannot be said that the entire proceedings stand vitiated for having not observed the provisions made in Section 102 of the said Act. It has also been argued that even at the stage of Section 103 of the said Act, the complainant was required to follow the provisions made in Sub-sections (2), (3), (4) etc., of Section 103 of the said Act. It is also his argument that these provisions have not been followed by the customs officers and, therefore, also the entire proceedings would stand vitiated and consequently the entire criminal proceedings before the Court had also vitiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (1) to (7) of Section 103 of the said Act. Therefore, merely because the said procedure has not been followed, it cannot be said that the proceedings undertaken by the complainant would stand vitiated. The two Courts below have recorded findings of fact that the statement of the petitioner recorded by the concerned Officer of the Customs department and produced before the trial Court at Exh. 43 is genuine, voluntary and the same has not been made under fraud, coercion or undue inducement and, therefore, it can be relied upon. In view of the aforesaid finding of fact recorded by the two Courts below there is no reason for this Court to differ from the view adopted by the two Courts below, on the aforesaid findings of fact. This is after all revisional jurisdiction and the powers, function and jurisdiction of this Court exercising revisional jurisdiction are very limited and restricted. Even when the Court hears the appeal then also the Court would naturally give due weightage to the finding of fact recorded by the trial Court. The reason is that the trial Court had every opportunity to witness the witnesses giving evidence from the witness box. The trial Court will have the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without issuance of summons as per Sub-sections (1) and (2) of Section 108 of the said Act. In the present case, it is not much in dispute that the statement of the petitioner was recorded without issuing summons under Sections 108(1) or 108(2) of the said Act. However, the petitioner was already present before the officer concerned and the officer who recorded the statement Exh. 43 of the petitioner was competent to record the statement. In that view of the matter, the statement recorded under Section 108 of the said Act can be relied upon if it is found to have been voluntarily made. On this aspect, as said above, there are concurrent findings of fact recorded by the two Courts below that the statement of the petitioner is voluntary in nature and, therefore, it is admissible in evidence. As said above are the concurrent findings of fact and there is no reason to differ from the view adopted by the two Courts below. 15. It has also been argued that before recording the confessional statement under Section 108 of the said Act, the said officer was required to follow the procedure laid down in Section 164 of the said Code. Now it is very clear that Section 164 of the said Code pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence between the operation of Section 108 of the said Act and Section 164 of the said Code. Therefore, the provisions made in Section 164 of the said Code cannot be read or protected in Section 108 of the said Act. The Court has to follow the procedure laid down in/and under which the Court is functioning. Therefore, non-observation of the provisions made in Section 164 of the said Code, while recording the statement under Section 108 of the said Act, cannot vitiate such a statement recorded under Section 108 of the said Act and the conviction recorded in the said proceedings before the two Courts below on a consideration to the said statement under Section 108 of the said Act cannot be termed as illegal on this aspect of the case. 17. The learned Advocate for the petitioner has relied upon a decision of Babu v. State of Kerala : MANU/SC/0683/1999MANU/SC/0683/1999 : AIR 1999 SC 3861 : 1999 (66) ECC 294 (SC). There it was observed that in Section 50 of the NDPS Act, 1985 provisions have been made for search and seizure. The Hon'ble Supreme Court also found that the brown sugar was recovered from the person of accused and when the accused was not informed by Police Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our gold biscuits in his rectum. He also showed his readiness to take them out. He called for water and took out those 4 gold biscuits from his rectum. A golden ring was also found from his bag. So, this undisclosed gold was found out from him. He had not paid duty on the same. He had not declared his possession in respect of the gold till he was finally questioned. Thus he committed an offence punishable under Section 135 of the Act. Looking to the evidence as aforesaid, there is no room to doubt the evidence. The two Courts have properly appreciated this evidence. The witnesses have stood the test of cross-examination and their evidence has not at all been shaken during the course of cross-examination. The two Courts below have thus not committed any illegality in relying upon the said evidence on record and in finding that the aforesaid gold was found in person of the petitioner for which he neither made any disclosure nor did pay customs duty and thus committed offence punishable under Section 135 of the said Act, 20. It has also been argued that independent witness namely Faruque Mohmad was not examined. Now the witness who is shown to be an independent witness is found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. At this stage it has to be taken into account that the provision made in Section 135 of the said Act provides for the punishment of the offence in question which shows that in case of offence related to any of the goods to which Section 103 applies and the market price whereof exceeds one lakh of rupees, the accused would be punishable with imprisonment for a term which may extend to seven years and with fine. The law further shows that in the absence of adequate reasons to the contrary to be recorded in the Judgment of the Court such imprisonment would not be for less than three years. Here the value of gold in question is above Rs. one Lakh. The petitioner has been sentenced to suffer R.I. for four years. When the law itself shows that punishment cannot be less than three years, the punishment of four years cannot be said to be too harsh. Here we have to consider the manner in which the offence has been committed. The petitioner had hidden gold biscuits in his rectum and extracted them out only when he was almost compelled to do so by taking him to x-ray machine room. At that time he must have been sure that the gold biscuits in his rectum would be displayed on the screen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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