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TMI Blog1996 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. The CBI has taken this stand because, according to it, the appellant had an ulterior motive in killing the deceased, which was to share reward relating to recovery of smuggled gold worth Rs. 28 lacs. The reward had, however, become due in 1984 and the present occurrence had taken place on 16-5-1991. How far-fetched is the imputed motive? The High Court itself has disbelieved this and has really criticised the CBI for suggesting the same. This is, however not all. As the further case of the CBI is that no records were placed before it to show that the appellant had prior information of smuggling, following which the smuggler was chased. Another material used against the appellant is, his so-called abscondence. 3.None of the aforesaid has legs to stand, as would appear from what is being stated later. A biased investigation of the type at hand from the CBI has indeed pained us, because people of this country have still high hopes from it, which would get dashed if bias creeps in its investigation. But then, the deceased was no ordinary mortal, as he was a brother of one time Chief Minister of Goa; and the occurrence had taken place in Goa. 4.What finds the appellant before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssel or aircraft as aforesaid and if after a gun is fired as a signal the vessel fails to stop or the aircraft fails to land, it may be fired upon; it becomes necessary to stop any vehicle or animal, the(b) proper officer may use all lawful means for stopping it, and where such means fail, the vehicle or animal may be fired upon." 6.Let it be seen why the protection of Section 155 has been denied and why CBI insists that this section has no operation. The first premise of denial is that there is no material to show if the appellant was really engaged in any official work inasmuch as there is no writing showing prior information relating to attempted smuggling. This, however, is an obvious untenable stand inasmuch as from the impugned order it is clear that on the day of occurrence itself it was told within a few hours to the local police, which had come at the scene around 2 p.m. while the occurrence was around 12.30 p.m., that the appellant had been working "on some tip-off about smuggling of gold". In this connection Shri Bobde appearing for the appellant, has drawn our attention to a complaint filed in the Court of Chief Judicial Magistrate, Margo, being subject matter of Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as the duration was of 24 hours, the same would show that the injuries were received on 17th, and not on 16th. This establishes a case of self-infliction of injuries, contends the counsel. He however, missed the mark " > " put before 24 hours, which shows that the time was more than 24 hours. So, this part of CBI's case also falls to the ground. 10.Faced with the position that the wounds were not self inflicted and the killing could have been, indeed was, in self-defence, the submission is that protection of Section 155, nonetheless, is not available because killing of a smuggler is not a part of the official duty, which alone is protected by this section. It is laboured hard to impress that the official duty, in the present case, was confined to stop the movement of the vehicle and no farther. After the vehicle was got stopped, the submission is, that the act in performance of official duty was over and the appellant could not have scuffled with the deceased leading to the latter's death. We cannot agree inasmuch as on 16th itself it was stated at the spot by some watchers to the police officer who came there that the appellant was "trying to grab the ignition key" of the vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se he has taken the life of a smuggler; of course, one close to political high ups of Goa. Let this not be coun- tenanced. Let this head-hunting be not permitted. 13. The prosecution against the appellant is, therefore, quashed. The appeal stands allowed accordingly. 14.[Judgment per : G.N. Ray, J.]. - While respectfully agreeing with the judgment of my learned brother, I intend to add as follows :- 15.Mr. Altaf Ahmed, learned Additional Solicitor General appearing for the respondent has very strongly contended that even if in the facts of the case, it becomes apparent that the appellant, a Preventive Officer of the Customs Department, on the basis of source information, was keeping a vigil on the apprehended smuggling activities and having located the deceased speeding away with smuggled goods in a contessa car had chased him in his motor cycle and attempted to stop the vehicle but he was resisted by the deceased driving the said car, the appellant is not entitled to claim protection against initiation of a criminal trial for causing death of the driver of the vehicle under Section 155 of the Customs Act because under Section 106 of the Customs Act, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess serious damage to the aircraft or the vehicle may be caused which may lead to loss of life of the pilot or driver together with occupants of the concerned conveyance, an action in injuring the driver or the occupant of the vehicle in an attempt to immobilise the vehicle is beyond the scope and ambit of Section 106. 17.It is, however, necessary to indicate a note of caution in the matter of consideration of protection against criminal liability if sought for under Section 155 of the Customs Act at the threshold of the Criminal trial. Since such immunity is claimed at the threshold, the Court should carefully scrutinise the relevant facts and materials placed before it for the purpose of finding (a) that the concerned Officer was authorised to act for prevention of smuggling activity and in fact had bona fide acted in exercise of his duties and functions in preventing the smuggling activities being carried or about to be carried (b) there are prima facie materials to indicate that such officer had honestly attempted to stop the conveyance for effecting search of the same (c) that such an attempt to stop the vehicle was sought to be frustrated either by not stopping the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of the complainant and being attacked, the said raiding party fired shots. The complainant lodged a complaint that the members of the raiding party had come to commit dacoity in the jewellery shop. Indicating the circumstances, this Court held that the raiding party had not gone to commit the dacoity but they had to open fire thereby injuring some person in the shop when they were resisted in the carrying of the raid peacefully and men of the raiding party were manhandled. The impugned order quashing the complaint against the raiding party was upheld by this Court on the basis of general prima facie impression even by noticing that perhaps the matter may have required further evidence before quashing. It will be appropriate to refer paragraph 7 hereunder : "Even though what we have just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present, it may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of this type are allowed to be pursued to their logical con ..... 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