1998 (11) TMI 139 - HC - Customs

Summary

Issues:
Challenge to conviction under Section 135(1)(a)(i) of the Customs Act based on lack of valid sanction, contradiction in evidence, and failure to follow search provisions under Section 102(1) of the Customs Act.

Analysis:
1. Validity of Sanction: The petitioner challenged the conviction on the grounds of lack of valid sanction under Section 135 of the Customs Act. The Counsel argued that the sanction did not demonstrate that all documents were presented before the sanctioning authority. However, both lower courts found the sanction to be valid as all materials were placed before the authority. The Judge upheld this finding, stating that the factual aspects had been correctly decided by the lower courts.

2. Contradiction in Evidence: The petitioner raised a point regarding a contradiction between the evidence of two witnesses regarding the recovery of gold bars from the accused. The Judge noted that both lower courts had already addressed and resolved this issue, finding no contradiction between the testimonies of the witnesses. Consequently, the Judge did not delve further into this matter.

3. Compliance with Search Provisions: The central issue revolved around the compliance with the search provisions under Section 102(1) of the Customs Act. The Counsel argued that the search was not conducted in accordance with the requirements of informing the accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The Counsel relied on precedents related to the N.D.P.S. Act to support this argument. However, the Judge disagreed, stating that Section 102 of the Customs Act is not analogous to Section 50 of the N.D.P.S. Act. The Judge highlighted that the search was conducted based on suspicion, and there was clear evidence of the accused's suspicious behavior leading to the search. Therefore, the Judge concluded that the right to choose the officer under whose presence the search was conducted was not mandatory in this case.

In conclusion, the Judge dismissed the revision, upholding the conviction and sentence imposed on the petitioner by both lower courts. The Judge found no merit in the arguments presented by the petitioner's Counsel regarding the lack of valid sanction, contradiction in evidence, and failure to comply with search provisions under the Customs Act.