9911796707
TMI Blog2024 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 'the Customs Act'); under Section 8 (1) read with Section 85 (1) (2) of the Gold (Control) Act, 1968. By order dated 20.08.2019, Mr. Chaudhari, learned Advocate and Counsel practising at the Bar was appointed by this Court to represent and espouse the cause of the Applicant. Accused shall be referred to as Applicant for convenience. Though there are two concurrent orders of conviction, the present Revision raises an important issue of law pertaining to the power of the enforcement agency in conducting search and seizure under the Customs Act. 3. The relevant facts necessary for adjudication of the present Revision are as under:- 3.1. Briefly stated prosecution case is that on 10.11.1989 on some information / tip received by the Custom Officers, a secret watch was kept near the bus stop at For as Road in Mumbai where they noticed the arrival of Applicant on motorcycle. He parked his motorcycle and went into a shop and returned back thereafter when he was apprehended for possession of gold bars and taken to the Customs Office situated at Marine Lines, Mumbai for recording panchnama. On personal search of accused, he was found in possession of one packet containing 4 gold bars o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he can forthwith discharge the said person or in the alternate direct the search to be made. Next he would submit that sub Section (4) of Section 102 of the Customs Act enable and empower the Gazetted Officer of Customs or Magistrate to call upon two or more independent witnesses to attend and witness the search and seizure of contraband and most importantly the search would have to be made in front of two or more witnesses and list of all things seized in the course of such search is to be prepared by such Officer or authorised person and signed by such witnesses (emphasis supplied). He would submit that the above procedure is mandatory in nature to enable the prosecution to seize the contraband, arrest the person and launch prosecution under Section 108 of the Customs Act. Further under Section 108 of the Customs Act, there is a power to the Gazetted Officer of Customs to summon any person whose attendance he considers necessary either to give evidence or produce the documents or any other thing in any inquiry which such Officer is making under this Act. He would submit that all such inquiry as contemplated under the provisions of Section 102 read with Section 108 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any conviction based on such an illegal search and seizure is liable to be set aside and conviction and sentence awarded to Applicant is liable to be quashed and set aside. 5. Mr. Surpande, learned Advocate for Respondent Nos. 1 and 2 would contend that in the facts of the case, since Applicant did not give adequate and satisfactory explanation for possession of the gold bars and seized it. He would draw my attention to "Exhibit P-1" panchanama recorded in the Customs Office and the confessional statement of Applicant recorded after search and seizure of the gold bars from him and would contend that this documentary evidence conforms to the prescribed procedure envisaged under Section 102 read with Section 108 of the Customs Act for enabling the prosecution to apprehend Applicant and seize the contraband. In addition thereto, he would submit that though record does not bear it out, since sanction for prosecution was received in the year 1994 i.e. five years after the date of seizure of the gold bars, during the interregnum, prosecution followed the prescribed procedure for enabling it to prosecute the Applicant. He would submit that at this time three out of four gold bars which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant; Mr. Surpande, learned Advocate for Respondent Nos. 1 and 2 - the Directorate for Revenue Intelligence and Ms. Krishnaiyer, learned APP for Respondent No. 3-State. Perused the record of the case with their able assistance. Submissions made by them have received due consideration of the Court. 8. At the outset, it is seen that it is admitted position that prescribed procedure under Section 102 of the Customs Act has not been adopted and followed by the prosecution. This is what is heavily argued by the Advocate for Applicant. Hence let us see the procedure envisaged under Section 102 of the Customs Act which is required to be followed in the case of search and seizure of any contraband. Section 102 of the Customs Act reads thus:- "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 of customs shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of customs or magistrate. (2) If such requisition is made, the officer of customs may detain the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, rather the 'paper label' attached to the said gold bar was produced alongwith a different gold bar. 10. What is significantly shocking in the present case is that prosecution relied merely upon the "paper label" which was affixed to the gold bar when confiscated before it was sent to the Government of India Mint in order to establish the prosecution case, which has been accepted by Trial Court. What is seen is that, while marking the alleged gold bar while taking it on record in evidence below Exhibit-P4, the Trial Court has specifically marked the same for identification. This is because prosecution failed to prove that it was the same seized gold bar which was confiscated during search. Prosecution failed to record the seizure before any independent witness with the sanction of the Statutory Authorities thus violating the prescribed procedure envisage under Section 108 of the Customs Act which would have enabled the prosecution to launch prosecution against Applicant. Nonfollowing of the statutory procedure is fatal to the prosecution case. Both Courts below failed to consider the vital aspect before convicting the Applicant. Not only this, learned Trial Court went one s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such a finding in the facts of the present case calls for immediate intervention of the Court under Section 397 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') as the judgment of the conviction suffers from perversity. Learned Appellate Court while upholding the decision of the Trial Court has deliberately commented upon the material and evidence on record in paragraph No.4 while appreciating the evidence of PW-5. What is significant to be noted is the fact that both the Courts below has accepted the deposition of independent witnesses for seizure and confiscation of the gold bars without prosecution having followed the prescribed procedure under Section 102 of the Customs Act. Hence the judgement of the Trial Court and failure of the Appellate Court to consider this issue renders them unsustainable. 13. That apart, the very panchas who recorded the panchnama on the basis of which summons were issued to Applicant and further prosecution was launched after five years of the occurrence of the incident and were not examined by the prosecution during trial at all. When such a case was before the Trial Court, it was the duty of the prosecution to prove its case beyond all re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
