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TMI Blog2020 (1) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f offence under various provisions of Customs Act 1962 and Imports and Exports (Control) Act 1947. 2. At the outset, I have to note that since respondent no.1 is not represented, Ms Spenta Havewala, Advocate was appointed as Amicus Curaie. I have to note Ms Havewala was of immense assistance. 3. It is the prosecution s case that on 2-1-1990, on the basis of specific information that respondent no.1/accused, who was likely to carry contraband gold on his person, officers of appellant kept watch at Panchayatwadi Street, Mumbai. Pursuant thereto, the officers of appellant apprehended respondent no.1 and on his personal search, the officers recovered 9 pieces of gold weighing 504.900 gms approximately. Respondent no.1 admitted that the said 9 pieces of gold were made from smuggled foreign marked gold biscuits with the intention of removing foreign marking. Since respondent no.1 could not produce any receipt or document for possession of the said 9 pieces of gold, all those 9 pieces of gold were seized in the reasonable belief that the same were made of smuggled foreign marked biscuits and liable for confiscation under the provisions of Customs Act 1962. 4. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accused 9. Exhibit P-7:- Copy of summons 10.Exhibit P-8:- Sanction (with R P) 11.Exhibit P-9:- Complaint (with R P) 12.Exhibit P-10:- (Article A ) Panchanama Annexure 13.Exhibit P-11:- Panchnama 14. Article C :- Certificate issued by Goldsmith 15.Exhibit P-12:- Three bags containing gold (returned to the Dept. for safe custody) 16.Exhibit P-13:- (Article B ) Report dt. 18.02.91 . 8. Prosecution s case can be split into two parts. First one is seizure of alleged contraband gold from person of accused and the second part is house search of accused and seizure of 28 pieces of gold in the form of strips and corners from the house of accused. In both the parts, it is prosecution s case that gold allegedly found in possession of accused on his person and in his house, was prepared or made after removing foreign marking on them. According to prosecution, since the assay reports pointed out that the pieces of gold recovered from accused contained certain fineness, accused had smuggled or imported gold in India in contravention of the provisions of the Customs Act. 9. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 102 of the Customs Act, would become suspect and if there is any conviction based on possession of such search and seizure under the provisions of Customs Act, the same will have to be set aside. This is because sub-Section 1 of Section 102 mandates that When any officer of customs is about to search any person under the provisions of Customs Act, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. These are necessary safeguards available to an accused against the possibility of false involvement and therefore, the procedure prescribed has to be meticulously followed. The communication of this right has to be clear, unambiguous and individual. Accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. I find support for this view in many decisions rendered by the Apex Court and other High Courts under the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act 1985 and in particular State of Rajast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut appraisal of his right to the accused under Section 102 of the Customs Act would become suspect and the conviction based on such search and seizure is liable to be set aside. In these circumstances, the conviction and sentence recorded against the appellant even under the provisions of the Customs Act is liable to be quashed and set aside. 10. Apex Court in State of Punjab Vs. Baldev Singh 1999(6) SCC 172 , though that judgment was rendered under the provisions of NDPS Act, held that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. This court in Yusuf Suleman s case (Supra) has held that the wording of Sub-section 1 of Section 102 is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act which is held to be mandatory. 11. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court has, in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 para 32 , observed that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. It was submitted before constitutional Bench of Hon ble Supreme Court as under: 14.Adopting the same line of arguments, Mr. P.P. Malhotra, the learned Additional Solicitor General, appearing on behalf of the Government of NCT of Delhi maintained that it is clear from language of Sections 41(2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted officers differently, reposing higher degree of trust in them and, therefore, if a search of a person is conducted by a gazetted officer, he would not be required to comply with the rigours of Section 50(1) of the Act. It was argued that the view expressed by this Court in Ahmed (supra), is incorrect and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus, associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid. 14. None of the witnesses P.W.-1 to P.W.-3 say anything about having appraised accused of his right and asked whether he wanted to get his personal search in the presence of a Gazetted officer or a Magistrate. Therefore, on this ground alone, the search of the person of accused or seizure of gold has to be held as illegal. 15. From the evidence of P.W.-3 Jayesh Shrisat, it appears that panchnama of 9 pieces of gold weighing around 504 grams was prepared and the panchnama is at Exhibit P-10. Panch witnesses have not been produced to testify. The prosecution, therefore, relies on the evidence of P.W.-3. In the cross-examination of P.W.-3 it appears that 9 pieces of gold recovered from accused were not gold bars, but they were pieces of different sizes and there was no marking on the pieces. Therefore, the onus is on the prosecution to prove that what was seized from the possession of accused, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion. 17. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 19. 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. 20. A disconnect between gold seized and the gold assayed by P.W.- 6, also is evident. It seems certain samples that were sent to Mint were small in quantity and could not be assayed were sent to P.W.-6 (Goldsmith). P.W.-6 says that his report was prepared by his staff and he only signed the same. P.W.-6 also says he does not remember the contents of panchnama reduced into writing by the officers. In any event, that panch witness has not been examined. P.W.-6 says the gold was brought in sealed packet by the officer and it was opened in his presence. There is nothing to indicate that packet was the same packet which contained the same gold that was seized from the house of respondent. 21. The Apex Court in Chandrappa Ors. V/s. St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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