2023 (2) TMI 552 - HC - Customs

Smuggling - Gold Biscuits - yellow metals seized allegedly from the possession of the accused person were gold or not - burden to prove - Section 123 of the Customs Act - HELD THAT - Section 123 of Customs Act, 1962 upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in the humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter - When the later general law is repugnancy or inconsistency, the later special law will prevail over the earlier general law. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this Special Act would amount to depriving an accused of his statutory right. The examination under Section 313 of the Code of Criminal Procedure does have the nexus with the defence, which the accused may decide to bring if necessary. It is the mandatory obligation of the Court to hold a fair trial. Lack of opportunity to explain his position vis- -vis incriminating evidence, to be used against him is definitely prejudicial to the interest of accused person. Therefore, without giving an opportunity to the accused person to explain the incriminating evidence, Court could not have used the same against the accused person to record an order of conviction. The prosecution case cannot be said to have been proved beyond reasonable doubt. The impugned judgement passed by learned Appellate Court affirming the judgement passed by learned Chief Judicial Magistrate, Malda against the accused person suffers from infirmity and should be set aside - Appeal allowed.

Summary

Issues:
Challenge to judgment and order passed by Additional Sessions Judge affirming Chief Judicial Magistrate's order in a criminal case involving seizure of gold biscuits by police without following Customs Act provisions.

Analysis:
1. The criminal revision challenges the judgment affirming the conviction of the accused for possession of gold biscuits seized by police.
2. The accused's counsel argued that police exceeded their authority by seizing the gold biscuits without following Customs Act provisions.
3. The defense highlighted that police failed to inform the accused of his right to be searched before a gazetted officer as per Customs Act, and delayed handing over the seized items to Customs Authority.
4. The defense further contended that the prosecution failed to prove the seized items were gold, as there were discrepancies in the evidence presented, including issues with the chemical examination report.
5. The defense raised concerns about the lack of opportunity for cross-examination of the expert and the goldsmith, whose evidence was crucial in determining the nature of the seized items.
6. The judgment discussed the provisions of Sections 102 and 123 of the Customs Act, emphasizing the importance of following specific procedures laid down in special laws like the Customs Act.
7. The judgment highlighted the legal principle that special laws prevail over general legislation, emphasizing the need to adhere to the procedural requirements of special acts like the Customs Act in cases involving seizures.
8. The Court noted that the accused was deprived of his statutory rights during the search and seizure process, which amounted to a violation of procedural safeguards.
9. The defense also raised concerns about the lack of disclosure of incriminating evidence during the accused's examination under Section 313 of the Cr.P.C., which deprived the accused of a fair opportunity to explain the circumstances.
10. The Court emphasized the importance of a fair trial and the accused's right to explain incriminating evidence against them, highlighting the mandatory nature of the examination under Section 313 of the Cr.P.C.
11. Ultimately, the Court found that the prosecution failed to prove the case beyond a reasonable doubt, leading to the setting aside of the impugned judgment and the release of the accused.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved and the Court's reasoning in setting aside the conviction based on procedural irregularities and lack of evidence.