2020 (1) TMI 644 - HC - Customs

Smuggling - contraband item - foreign marked gold biscuits - evidences before charge were not cross-examined, but after framing of charges they were cross-examined - acquittal of accused. HELD THAT - The prosecution has totally failed to prove that accused was responsible or in any way responsible for fraudulent evasion of duty or he had been instrumental in the importation of the gold. Prosecution has also failed to prove that accused knew or had reason to belief that the gold found in his person are liable to confiscation. There is no evidence in that regard because the gold seized admittedly did not have any foreign marking. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. The provisions of Section 102 of The Customs Act, 1962 accord a protection to the suspect prior to a search being taken under section 100 or 101 of the said Act. Such protection is with the view to ensure that such search is taken with good cause and to lend credence to the evidence derived from such search - It is the obligation of the officer of customs to apprise the suspect of the rights available to him under Section 102, viz. to be taken to the nearest Gazetted Officer of customs or magistrate. This is a necessary sequence to be complied with for enabling the suspect exercise his rights; and the failure to do so will render such valuable rights conferred to the suspect under Section 102 illusory and a mere farce. The prosecution has merely tendered on record the Mint report which does not contain any detail to co-relate with the assay carried out by the Mint is of the gold that was actually seized from respondent. This is provided that the gold seized has been legally seized. The prosecution has not established on record by bringing original extracts from the register containing entries of sample seized by P.W.-3 on examination of contents of Exhibit P-10 Panchnama - There is no evidence to show as to in whose custody the gold was until it was sent for assay. There are various other omissions mentioned in the impugned judgment, which for sake of brevity, I am not reproducing. In the absence of proper identification of samples, co-relation with the Mint report and lack of any expert opinion about the strips or corners found in possession of accused and recovered from him, the seized gold cannot be held to be gold imported illegally and respondent cannot be convicted of the charges under Section 135 of the Customs Act. Seizure of gold from the house search - HELD THAT - Admittedly, accused was not present when the search was effected. When the search effected, there were two persons present, a lady by name Tejal, who was wife of the brother of accused and another person Pramod, who was the brother of accused. Both these persons have not been called to testify - Further, prosecution has not produced any evidence to prove that the house premises exclusively belonged to the ownership of respondent and it was under his exclusive control and possession. The documents relied upon by prosecution indicate that the house was shared by the brother, father and mother of respondent. Consequently, the evidence brought out by prosecution in respect of house search, cannot be accepted. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Trial Court rightly observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal need not be interfered with - Appeal dismissed.

Summary

Issues Involved:
1. Legality of the seizure of gold from the accused.
2. Compliance with procedural safeguards under Section 102 of the Customs Act.
3. Admissibility and corroboration of statements recorded under Section 108 of the Customs Act.
4. Legality of the seizure of gold from the accused's residence.
5. Appellate court's power to interfere with an acquittal.

Issue-wise Detailed Analysis:

1. Legality of the Seizure of Gold from the Accused:
The prosecution's case involved the seizure of 9 pieces of gold from the accused, which were believed to be made from smuggled foreign-marked gold biscuits. However, the court found that the prosecution failed to prove that the accused was responsible for the fraudulent evasion of duty or that he had imported the gold. The gold seized did not have any foreign marking, and the prosecution did not establish a legal seizure from the conscious possession of the accused.

2. Compliance with Procedural Safeguards under Section 102 of the Customs Act:
The court emphasized the importance of compliance with Section 102, which mandates that an accused must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The prosecution failed to prove that the accused was apprised of this right, rendering the search and seizure illegal. The court cited various judgments, including those under the NDPS Act, to support the view that informing the accused of this right is mandatory and failure to do so makes the search suspect.

3. Admissibility and Corroboration of Statements Recorded under Section 108 of the Customs Act:
The court noted that statements recorded under Section 108 of the Customs Act cannot be used as substantive evidence against the accused unless corroborated by independent and reliable witnesses. The prosecution relied on the accused's statement and assay reports, but there was no corroboration by independent witnesses. The court referenced previous judgments to highlight that a retracted confession without corroboration cannot sustain a conviction.

4. Legality of the Seizure of Gold from the Accused's Residence:
The search of the accused's residence and the seizure of 28 pieces of gold were also scrutinized. The court found that the accused was not present during the search, and the witnesses present were not called to testify. The prosecution failed to produce a copy of the search warrant or prove that the house was under the exclusive control of the accused. The court concluded that the evidence regarding the house search was insufficient to support the prosecution's case.

5. Appellate Court's Power to Interfere with an Acquittal:
The court reiterated the principles regarding the appellate court's power to interfere with an acquittal, emphasizing the double presumption of innocence in favor of the accused. The court must bear in mind that the trial court's acquittal further reinforces the presumption of innocence. The court found that the trial court's decision to acquit the accused was based on the prosecution's failure to prove its case and did not find any reason to interfere with the acquittal.

Conclusion:
The court dismissed the appeal, upholding the trial court's acquittal of the accused. The prosecution failed to comply with procedural safeguards, did not provide sufficient corroboration for the accused's statements, and lacked evidence to prove the legality of the seizures. The appellate court found no compelling reason to overturn the trial court's judgment.