2024 (12) TMI 99 - HC - Customs

Challenge to procedure adopted by prosecution for search and seizure - Adequacy of evidence presented by the prosecution - Conviction of Applicant for offences committed under Section 135 (1) (b) read with Section 13 (1) (i) of the Customs Act, 1962 under Section 8 (1) read with Section 85 (1) (2) of the Gold (Control) Act, 1968 - HELD THAT - At the outset, it is seen that it is admitted position that prescribed procedure under Section 102 of the Customs Act has not been adopted and followed by the prosecution. This is what is heavily argued by the Advocate for Applicant. In the present case, it is seen that after apprehending the Applicant, instead of producing the Applicant before the nearest available Gazetted Officer of Customs or Magistrate, rather the Applicant was taken from Grant Road to the Customs Office at Marine Lines, Mumbai where he was frisked and subjected to search in the Customs Office by the Customs Officers. Though panchanama was prepared and confessional statement of Applicant was recorded regarding seizure of four gold bars from him, the details given by him regarding the origin of the gold bars, and the person to whom the delivery was to be made was prominently recorded in the panchanama but, the prosecution in the course of five years of investigation before according the sanction did not take any steps to unearth and investigate the matter - Record in this case clearly shows that the seized gold bar which were confiscated and duly signed by the Customs Officer at the time of confiscation on 10.11.1989 was not produced in trial by PW-1 before the Trial Court, rather the paper label attached to the said gold bar was produced alongwith a different gold bar. The learned Trial Court has further held that the case of prosecution is corroborated by circumstances on record and that the available evidence of seizure is required to be accepted under Section 108 of the Customs Act - Learned Appellate Court while upholding the decision of the Trial Court has deliberately commented upon the material and evidence on record in paragraph No.4 while appreciating the evidence of PW-5. What is significant to be noted is the fact that both the Courts below has accepted the deposition of independent witnesses for seizure and confiscation of the gold bars without prosecution having followed the prescribed procedure under Section 102 of the Customs Act. Hence the judgement of the Trial Court and failure of the Appellate Court to consider this issue renders them unsustainable. The judgment of Trial Court dated 27.09.2001 also suffers from substantial legal defects as observed above for indictment, conviction and sentencing of the Applicant under the Customs Act read with the Gold (Control) Act, 1968. The prosecution having not proved its case beyond all reasonable doubts, both the twin judgments are unsustainable in law and are therefore quashed and set aside. The bail bond of Applicant stands cancelled - Criminal Revision Application stands allowed.

Summary

Issues Involved:

1. Compliance with statutory procedure for search and seizure under the Customs Act.
2. Adequacy of evidence presented by the prosecution.
3. Validity of the conviction based on procedural lapses and lack of evidence.

Detailed Analysis:

1. Compliance with statutory procedure for search and seizure under the Customs Act:

The primary issue raised in the Revision Application was whether the prosecution complied with the statutory procedure for search and seizure as mandated under Section 102 of the Customs Act. The Applicant argued that the mandatory provisions were not followed, which included producing the person before a Gazetted Officer of Customs or Magistrate without unnecessary delay. The prosecution failed to comply with these requirements, as the Applicant was not taken to a Gazetted Officer or Magistrate, but instead to the Customs Office, where the search and seizure were conducted. The Court found that this procedural lapse was significant and undermined the legality of the prosecution's case.

2. Adequacy of evidence presented by the prosecution:

The prosecution's case was also challenged on the grounds of inadequate evidence. The Applicant contended that the seized gold bar was not produced during the trial, and the prosecution relied merely on a "paper label" to establish its case. The Court noted that the prosecution failed to present the actual gold bar seized, which was crucial evidence. Additionally, the prosecution did not examine the panchas who recorded the panchnama, further weakening the evidence. The Court emphasized that the prosecution must prove its case beyond reasonable doubt, which it failed to do due to the lack of concrete evidence.

3. Validity of the conviction based on procedural lapses and lack of evidence:

The judgment highlighted that both the Trial Court and the Appellate Court did not adequately consider the procedural lapses and the lack of evidence. The Trial Court accepted the prosecution's case despite these deficiencies, and the Appellate Court upheld the conviction without addressing the procedural violations and evidentiary shortcomings. The Court found that the conviction was based on a flawed process and insufficient evidence, rendering it unsustainable in law. Consequently, the judgment of conviction and sentence was quashed and set aside.

Conclusion:

The Court concluded that the prosecution did not follow the mandatory statutory procedure for search and seizure, and failed to present adequate evidence to support the conviction. The procedural lapses and lack of evidence were fatal to the prosecution's case, leading to the quashing of the conviction and sentence. The Criminal Revision Application was allowed, and the Applicant's bail bond was canceled. The Court also acknowledged the assistance provided by the Applicant's legal aid counsel and directed payment of his professional fee as per the rules.