2020 (1) TMI 645 - HC - Customs

Smuggling - foreign marked gold bars - complaint not exhibited - sanction for prosecution - acquittal of accused - HELD THAT - There is a sanction dated 2-4-1993 in the records and proceedings, but the same is not brought on record as exhibit. It is settled law that a sanction for prosecution is not an idle formality. The sanction is a solemn and sacrosanct act, which has to be by due application of mind after satisfaction by perusal of the relevant materials. It was the duty of the prosecution to have the sanction exhibited - It is rather unfortunate that this sanction was also not proved through witnesses and consequently, the sanction is not exhibited. Therefore, one could safely state that the prosecution itself is vitiated - the complaint is not proved and exhibited and the sanction also is not proved and exhibited. On these grounds alone, the appeal has to be dismissed. 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. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of accused on 8-3-1991, was legal. Before prosecution seizing any gold in person, there are certain formalities to be followed as mentioned in Section 102 of the Customs Act, 1962. 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 choice, whether to be taken to the nearest Gazetted Officer of customs or a magistrate, lies with the suspect and in the event such choice is made known by him to the officer of customs, he shall be searched only in that manner. It is not up to the officer of customs to make this choice or elect before whom the accused is to be taken. Therefore, even assuming that the officer taking the search is a Gazetted Officer, it is still imperative for him to comply with his obligation to apprise the suspect of the legal rights available to him under Section 102. The seizure itself has not been proved and the alleged confession under Section 108 also has not been proved. It is for this reason, courts have repeatedly held that in the absence of corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation, could not be relied upon. 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 has 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.

Issues Involved:
1. Legality of the search and seizure under the Customs Act, 1962.
2. Validity of the sanction for prosecution.
3. Admissibility and reliability of the statements recorded under Section 108 of the Customs Act.
4. Compliance with procedural safeguards under Section 102 of the Customs Act.
5. Burden of proof and corroboration requirements for conviction under Section 135 of the Customs Act.

Issue-wise Detailed Analysis:

1. Legality of the Search and Seizure:
The prosecution's case was based on secret information leading to the interception and subsequent seizure of foreign marked gold bars from the respondents. However, the trial court noted significant procedural lapses. None of the panch witnesses were called to testify, and the seizure panchnama was not proved. This failure to produce independent witnesses and corroborate the seizure rendered the search and seizure process suspect and legally untenable.

2. Validity of the Sanction for Prosecution:
The trial court emphasized the importance of a valid sanction for prosecution, which must be a solemn act performed with due application of mind. The prosecution failed to prove and exhibit the sanction for prosecution. Without a valid sanction, the court held that the prosecution was vitiated, referencing the Division Bench’s decision in Union of India Vs. Ashok Sukhdeosing Chavan, which underscores the necessity of proving the sanction before the court can assume jurisdiction.

3. Admissibility and Reliability of Statements under Section 108:
The court scrutinized the statements recorded under Section 108 of the Customs Act. Only the statement of respondent no.3 was exhibited, but it was found to be unreliable. The statement, allegedly recorded in Hindi, was presented in English, raising doubts about its authenticity. Moreover, the court highlighted that a retracted confession without independent corroboration cannot sustain a conviction, as established in the case of Shri Malki Singh Vs. Suresh Kumar Himatlal Parmar.

4. Compliance with Procedural Safeguards under Section 102:
Section 102 of the Customs Act mandates that an accused must be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. The prosecution failed to prove that the respondents were apprised of this right. The court cited several precedents, including State of Rajasthan Vs. Parmanand and Anr. and Yusuf Suleman Vs. V. M. Doshi, which stress the mandatory nature of this provision. The failure to comply with Section 102 rendered the search and seizure illegal.

5. Burden of Proof and Corroboration Requirements:
The court reiterated that for a conviction under Section 135 of the Customs Act, the prosecution must establish a legal seizure of contraband from the conscious possession of the accused. The trial court found that the prosecution did not meet this burden. The absence of corroborative evidence and the failure to follow procedural safeguards led to the acquittal of the respondents.

Conclusion:
The trial court's judgment acquitting the respondents was based on multiple procedural lapses and the prosecution's failure to meet the burden of proof. The appellate court upheld the acquittal, emphasizing the double presumption of innocence in favor of the accused and the necessity of strict adherence to procedural safeguards. The appeal was dismissed, affirming the trial court's decision.

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