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COSTAO FERNANDES Versus STATE AT THE INSTANCE OF DSP., CBI, BOMBAY

1996 (2) TMI 137 - SUPREME COURT OF INDIA

Whether prosecution against valiant and dutiful Customs Officer who risked his life to fight the mighty under-world of smugglers; unarmed and single-handedly and he succeeded after hot chase on his motorcycle - smuggler being in a car. The result was smuggling of gold worth ₹ 8 crores was prevented be allowed? - Held that:- 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 .....

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hty 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 t .....

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4 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 .....

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e by Section 155 of the Customs Act, 1962 (the Act). The section has provided : Section 155. Protection of action under the Act. - No suit, prosecution or other legal proceedings shall lie against the(1) Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations. (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of .....

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reading as below : Section 106. Power to stop and search conveyances. - (1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and - rummage and search any p .....

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thority 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 .....

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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, .....

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eceived information regarding some movement sufficient to suspect landing of gold and whereupon he immediately rushed to the site. 7.Addl. Solicitor General, Shri Altaf Ahmad, submits that this is the stand of Union of India through its Customs Department in some other case, whereas in the present case the CBI could not be satisfied during investigation about any such prior information. The mildest observation we would make in this context is that the CBI has exposed inasmuch as the Department s .....

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ter of Goa) has been murdered. This shows that the Customs Department had not cooked up this story subsequently. 8.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 see .....

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ved 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 smug .....

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watchers to the police officer who came there that the appellant was trying to grab the ignition key of the vehicle which was being driven by the deceased. This shows that the appellant was trying to prevent the mobility of the vehicle. If while engaged in such an act, the appellant was assaulted, and 22 times at that, with an instrument like knife causing bruises, abrasions, incised wounds on various parts of body like cheek, chest, back, shoulder, arm, leg and thigh, he could not have allowed .....

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ided jewellery shop causing gun shot wounds to the son of the appellant, which had been done as three persons of the custom party had received head injuries caused by blunt weapon. The learned counsel submits that the same view merits to be taken in this case. Addl. Solicitor General, however, urges that the observation made by the Court in paragraph 7 shows that it did not fully approve the quashing of the complaint by the High Court by giving the benefit of Section 108. But, the relevance and .....

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s 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 cl .....

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t 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 .....

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efence and by that process, the driver or the occupant had suffered bodily injuries which had caused death, the concerned officer cannot claim protection at the threshold in stopping the criminal trial under Section 155 of the Customs Act. He has to face the criminal trial where the question of the right of private defence, if raised, is to be considered in the light of the evidences to be adduced in the case. 16.In my view, such contention should not be accepted. The very purpose of Section 106 .....

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. If in course of a consequential action, it becomes necessary to immobilise the driver or occupant of a vehicle when without recourse of such action it was not possible to stop the vehicle, I fail to see any reason why the Customs Officer will not possess power and authority 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 confi .....

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us 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 .....

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r 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 vehicle or by attempting to forcibly taking away the vehicle despite attempt by the concerned officer to stop the vehicle and (d) that recourse to use of force on the driver or occupant of the vehicle was apparently necessary to immobilise the vehicle or to save himself from imminent danger of personal risk. If on con .....

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ection 155 of the Customs Act by dropping the criminal case initiated against the concerned Officer. The facts already on record, some of which have been indicated in the judgment of my learned brother, indicate that the appellant was non official duty as Preventive Officer to look out for smuggling activities at the relevant time and in discharge of his official duties he had chased a speeding contessa car driven by the deceased in an attempt to stop the car for searching the same. As a matter .....

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nt 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.) .....

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