TMI Blog1996 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Officer risked his life to fight the mighty under-world of smugglers; unarmed and single-handedly. And see! he succeeded after hot chase on his motorcycle - smuggler being in a car. The result was smuggling of gold worth Rs. 8 crores was prevented. The reward? He has been made to face a prosecution under Section 302 of the IPC at the behest of the CBI, who is brought hurriedly and for undisclosed reasons to investigate, inasmuch as in the scuffle which had taken place between the appellant-official and the suspected smuggler, during the course of which a big-sized knife (dagger) carried by the run-away was used, the smuggler died, because of the injuries sustained at the hand of the appellant, who had as many as 22 injuries on his person. 2.The CBI says the injuries were self-inflicted. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) vessel; examine and search any goods in the aircraft, vehicle or(b) vessel or on the animal; break open the lock of any door or package for exercising(c) the powers conferred by clauses (a) and (b), if the keys are withheld. Where for the purposes of sub-section (1) -(2) it becomes necessary to stop any vessel or compel any(a) aircraft to land, it shall be lawful for any vessel or aircraft in the service of the Government while flying her proper flag and any authority authorised in this behalf by the Central Government to summon such vessel to stop or the aircraft to land, by means of an international signal, code or other recognised means, and thereupon such vessel shall forthwith stop or such aircraft shall forthwith land; and if it fails to do so, chase may be given thereto by any vessel 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .To boost up its case, the CBI has further stated that after the occurrence the appellant was not available for two days, i.e. he was absconding, which shows his guilty mind. It is true that the appellant had surrendered before the police on 18th, but that was because he became mortally afraid of his life after what had happened on 16th; and so, surrender before the police was to seek protection. Where is the guilty mind then? 9.Coming to the case of self-infliction wounds, the same is sought to be brought home by the Addl. Solicitor General by referring to the "Hurt Certificate", which has noted that on the appellant being examined on 18th May, 22 injuries were found on his person. The learned counsel refers us to column 5 of this certificate dealing with "Duration of each hurt" and submits that 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 woun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary in self-defence. 12.Addl. Solicitor General has another submission to make. The same is that being faced with an organised under-world of smugglers, the appellant should have remembered that "discretion is the best part of valour". If the appellant would have done so, he would have perhaps saved his skin, but could not have saved the larger interest of the society and nation, which does lie in preventing smuggling. The appellant showed valour not in taking to heels, but in fighting. We have all praise for such an officer and we would not allow him to be prosecuted, much though the smugglers would want it to be so. Indeed the appellant is being persecuted, not prosecuted, as the action smacks of revenge seeking to take his life because 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 Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity under Section 106 of the Customs Act to take recourse to such action for giving full effect to Section 106 of the Act. It will not be correct to contend that the Customs Officer's power under Section 106 of the Act is confined only to immobilisation of the conveyance and not of the driver or occupant of the conveyance even when without which immobilisation, stopping of the conveyance cannot be effected. Sub-section (2) of Section 106 of the Customs Act authorises a competent Officer to fire upon animal, vehicle or aircraft for forcibly stopping the same. It will be only hypertechnical to contend that although in an attempt to immobilise an aircraft or a vehicle, the same may be fired upon and by such process 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical report are likely to have been caused at the time when attempt to stop car was made. Such facts prima facie support the appellant's claim for the protection under Section 155 of the Customs Act. In the facts of the case, it will not be proper to disallow such protection under Section 155 of the Customs Act to the appellant but to subject him to a full-fledged trial on a charge of murder by pointing out that it would be open to the appellant to plead for right to private defence in such trial, like any other accused. 18.It may be indicated here that in the case of Bhappa Singh v. Ram Pal Singh and Others - [1981 (Supp.) SCC 12], the officials of the Customs and Excise Department raided a jewellery shop 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. 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