2020 (1) TMI 767 - HC - Customs

Smuggling - sale proceeds from sale of Gold Bars - Indian Currency - acquittal of accused - offence punishable under Section 135 (1) (A) and (B) read with Section 135 (1) (i) of the Customs Act, 1962 - compliance with the provisions of Section 102 of the said Act or not - reliability of statements - HELD THAT - Admittedly the formalities to be followed under the provisions of Section 102 of the said Act have not been followed. Mr. Natarajan, in fairness, true to his role as an Officer of the Court, admitted that the requirements of Section 102 of the said Act have not been complied with and compliance with those requirements is mandatory - For proving the offence under Section 135 of the said Act, prosecution must prima facie establish the case of legal seizure. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of respondent no.1 on 8th January 1991 was legal. The only difference between Section 102 of the said Act Act and Section 50 of the Narcotic Drugs and Psychotropic Substances ACT, 1985, (NDPS Act) is under Section 50 of NDPS Act the person has to be searched either in the presence of a nearest Gazetted Officer of any of the departments mentioned in Section 42 of NDPS Act or a Magistrate, but under the provisions of Customs Act, accused has to be taken without unnecessary delay to the nearest gazetted officer of customs or magistrate. The provisions of Section 102 of the said Act 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. The expression if such person so requires in Section 102 necessarily implies that to enable him to exercise his legal rights under Section 102, he should be made aware of such rights - Section 102(3) provides that once the suspect is taken either before the Gazetted Officer or the magistrate, whichever the case may be, such Gazetted Officer or magistrate is empowered to forthwith discharge the person if he sees no reasonable ground for search, or otherwise direct that the search be made. In my opinion, the suspect will be denied of this additional degree of protection / opportunity if a Gazetted Officer himself takes search and does not apprise the suspect of his rights under Section 102 thereby the procedural requirements of Section 102(3) not being complied with. Reliability on statements and evidences - HELD THAT - The value of the gold was told by the Officers and PW-4 cannot give the particulars of denomination of currency notes recovered by the Officers. PW-4 says he also had no occasion to count the currency notes but the Officers told him about the total amount but did not tell him about the denomination of currency notes. Therefore, the evidence of PW-4 and the contents of panchnama (Exhibit P-2) is unreliable - Also, there is no record of the fact which shows that an attempt was made by respondent no.1 to write the statement and the attempt was given up for reasons mentioned by PW-2. There is no independent or distinct corroboration to the facts stated in the statement at Exhibit P-5 - also, in the cross examination, PW-4 says that he has met PW-1 earlier and due to the nature of his work, he was required to visit Customs Office again and again. PW-4 also says he did say no initially to PW-1 when he was called to be the panch witness but then he was told by PW-1 that as he was working as Customs Agent he was expected to do the work and so he consented to act as panch witness. This also indicates that PW-4 was a pliable witness. There is an acquittal and therefore, there is double presumption in favour of accused - Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court 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 cannot be interfered with - appeal dismissed.

Summary

Issues Involved:
1. Legality of the search and seizure under Section 102 of the Customs Act, 1962.
2. Compliance with procedural safeguards during the search and seizure.
3. Reliability of evidence and testimonies presented by the prosecution.
4. Double presumption of innocence in favor of the accused upon acquittal.

Issue-wise Detailed Analysis:

1. Legality of the Search and Seizure under Section 102 of the Customs Act, 1962:
The prosecution must establish the legality of the seizure to prove the offense under Section 135 of the Customs Act. Section 102 mandates that if a person requires, they must be taken without unnecessary delay to the nearest gazetted officer of customs or magistrate before being searched. The court noted that the formalities under Section 102 were not followed, making the search and seizure suspect. The accused must be made aware of their right to be searched in the presence of a gazetted officer or a magistrate. Failure to inform the accused of this right renders the search illegal, as supported by precedents from the Apex Court and other High Courts under similar provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. Compliance with Procedural Safeguards during the Search and Seizure:
The court emphasized the mandatory nature of Section 102, which provides necessary safeguards against false involvement. The prosecution admitted that the requirements of Section 102 were not complied with, which is mandatory. The court highlighted that the communication of this right must be clear and unambiguous. The failure to comply with these procedural safeguards, such as not appraising the accused of their rights under Section 102, would render the search and seizure illegal. The court cited several judgments, including State of Rajasthan v. Parmanand and Anr., and Yusuf Suleman v. V. M. Doshi, to support this view.

3. Reliability of Evidence and Testimonies Presented by the Prosecution:
The court scrutinized the evidence and testimonies presented by the prosecution, particularly the contradictions and inconsistencies in the testimonies of the witnesses. The panch witnesses, especially PW-4, admitted that they were not present during the entire search and that the panchnama was already prepared when they arrived. This raised doubts about the authenticity of the evidence. The court also noted that the accused's statement under Section 108 of the Customs Act was not recorded in his handwriting, despite his ability to write in Hindi, further questioning the reliability of the evidence.

4. Double Presumption of Innocence in Favor of the Accused upon Acquittal:
The court reiterated the principle of double presumption of innocence in favor of the accused upon acquittal. Firstly, the presumption of innocence is a fundamental principle of criminal jurisprudence. Secondly, the acquittal by the trial court further reinforces this presumption. The appellate court must bear in mind that if two reasonable conclusions are possible based on the evidence, the finding of acquittal should not be disturbed. The court found that the trial court's decision to acquit the accused was based on the prosecution's failure to prove its case beyond a reasonable doubt.

Conclusion:
The court dismissed the appeal, agreeing with the Sessions Court's decision to acquit the accused. The search and seizure were deemed illegal due to non-compliance with Section 102 of the Customs Act. The evidence presented by the prosecution was found to be unreliable, and the principle of double presumption of innocence favored the accused. The court concluded that the trial court's judgment was neither illegal nor improper, and thus, the order of acquittal could not be interfered with.