2020 (1) TMI 768 - HC - Customs

Smuggling - foreign marked gold bars - acquittal of accused - offence punishable under Section 135 (1) (b) read with Section 135 (1) (i) of the Customs Act, 1962 and under Section 8 (1) of Gold Control Act punishable under Section 85 (1) (ii) of the Gold (Control) Act, 1968 - cross-examination of witnesses. HELD THAT - There is nothing on record to indicate that respondent no.1 was apprised of his rights under Section 102 and consequences thereof. 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 25th March 1985 at Kalbadevi Road, was legal. 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. 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. 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 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. It is settled law that even though a statement recorded under Section 108 is admissible in evidence, it has no evidentiary value unless it is corroborated by independent witnesses. Moreover, in this case, respondent has retracted and in his retraction alleged that he was mercilessly beaten by the Customs Officers. The Magistrate was also pleased to direct the Superintendent of Jail to send respondent no.1 for medical examination and the Medical Officer of the Jail has certified that accused had injuries. That indicates, torture and makes me conclude that the confession could not be said to be voluntary. 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.

Issues Involved:
1. Legality of the search and seizure.
2. Admissibility and voluntariness of the statement recorded under Section 108 of the Customs Act.
3. Compliance with procedural safeguards under Section 102 of the Customs Act.
4. Corroboration of the statement recorded under Section 108.
5. Double presumption of innocence in case of acquittal.

Issue-wise Detailed Analysis:

1. Legality of the search and seizure:
The court scrutinized whether the seizure of gold from the respondent was conducted legally. The prosecution failed to provide evidence that the respondent was informed of his rights under Section 102 of the Customs Act, which mandates that the accused must be taken to the nearest gazetted officer or magistrate before a search. The court emphasized that this procedural safeguard is crucial to prevent false involvement and ensure the legality of the seizure. The failure to follow this mandatory procedure rendered the search and seizure illegal.

2. Admissibility and voluntariness of the statement recorded under Section 108 of the Customs Act:
The respondent's statement recorded under Section 108 was retracted, claiming it was obtained under duress and coercion. The court noted that the statement was not voluntary, as corroborated by the medical report indicating physical trauma. The court held that a statement recorded under Section 108, though admissible, has no evidentiary value unless corroborated by independent witnesses. The prosecution's reliance solely on this statement without independent corroboration was insufficient for conviction.

3. Compliance with procedural safeguards under Section 102 of the Customs Act:
The court highlighted the importance of compliance with Section 102, which protects suspects by ensuring searches are conducted with good cause and in the presence of a gazetted officer or magistrate. None of the prosecution witnesses testified that the respondent was informed of his rights under Section 102. The court reiterated that failure to apprise the suspect of these rights renders the search and seizure suspect and the evidence derived therefrom inadmissible.

4. Corroboration of the statement recorded under Section 108:
The court underscored that corroboration of a statement recorded under Section 108 must come from independent and reliable witnesses. In this case, the panch witnesses turned hostile, and there was no independent evidence to support the prosecution's case. The court referred to previous judgments emphasizing the necessity of independent corroboration for statements recorded under Section 108 to sustain a conviction.

5. Double presumption of innocence in case of acquittal:
The court reiterated the principle that an appellate court must bear in mind the double presumption of innocence in favor of the accused in cases of acquittal. Firstly, the fundamental principle of criminal jurisprudence presumes innocence unless proven guilty. Secondly, the acquittal by the trial court further reinforces this presumption. The court found that the trial court's judgment of acquittal was based on the prosecution's failure to prove its case beyond a reasonable doubt and upheld the acquittal.

Conclusion:
The court dismissed the appeal, upholding the trial court's judgment of acquittal. The prosecution's failure to comply with mandatory procedural safeguards, lack of independent corroboration for the statement recorded under Section 108, and the double presumption of innocence in favor of the accused were pivotal in the court's decision. The court emphasized the importance of adhering to legal procedures to ensure the credibility and legality of evidence in criminal proceedings.

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