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TMI Blog2020 (1) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... hotropic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dabholkar, APP for State respondent no.2. Mr. Sourabh Parashar, IO/R I present. ORAL JUDGMENT : 1. This is a case where the Customs Authorities are impugning an order of acquittal dated 6th March 2003 passed by the Additional Sessions Judge, Greater Mumbai, acquitting respondent no.1 of offence punishable under Section 135 (1) (A) and (B) read with Section 135 (1) (i) of the Customs Act, 1962 (the said Act). 2. Prosecution s case is, on 8th January 1991, on receipt of specific information, the premises of respondent no.1 situated at Pandurang Bhavan, M.G. Acharya Marg, Chembur, Mumbai 400 071 (the said premises) was raided. Alongwith respondent no.1, there was one more person, Vinodkumar Bafna, who was found holding a plastic bag in his hand. The personal search of respondent no.1 resulted in the recovery of five gold bars of 10 tolas each and the search of the plastic bag carried by Vinodkumar Bafna, contained Indian currency of ₹ 2,75,000/-. It is prosecution s case that on interrogation, respondent no.1 admitted that he had just purchased those five gold bars from Vinodkumar Bafna and handed over ₹ 2,00,000/- cash to Vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no.1. 5. Prosecution to prove the charge, led evidence of four witnesses, viz., Ravindranath Singh (PW-1), Rajnarayan Vikramaditya Pathak (PW-2), Jagdish Prasad Chaurasiya (PW-3) and Mukesh Thakurdas Hemdar, the panch witness as PW-4. PW-1 to PW-3 are Customs/DRI employees. The defence on behalf of respondent no.1 led evidence of two witnesses, viz., Hemraj Arjunlal Mehta (DW-1) and Ramchandra Mandovara (DW-2). After considering the evidence and the records and proceedings, the Trial Court, i.e., Chief Metropolitan Magistrate, Esplanade, Mumbai, by an order and judgment dated 14th August 2001, was pleased to convict respondent no.1 for offence punishable under Section 135 (1) (i) of the said Act. Under Section 135 (1) (a) (i) of the said Act. Respondent no.1 was sentenced to suffer imprisonment for two years and to pay a fine of ₹ 15,000/- and in default, to undergo simple imprisonment for three months. No separate sentence was passed under Section 135 (1) (b) (i) of the said Act. The gold, which was seized, had already been disposed. 6. Against the order of the Trial Court, respondent no.1 - Oghadmal Hiralal Jain filed an appeal in the Courts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Before making a search under the provisions of section 100 or section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses. (5) No female shall be searched by any one excepting a female. 10. Search, seizure and arrest of respondent under the provisions of Customs Act without appraising his right under Section 102 of the said 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 of the said Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Customs Act the accused has to be taken without unnecessary delay to the nearest Gazetted Officer of Customs or Magistrate. As stated earlier in respect of the similar provisions of the N.D.P.S. Act the Apex Court has held that the accused has to be apprised of his right and asked whether he wants his search to be taken in the presence of a Gazetted Officer or a Magistrate and the search, seizure and arrest of the accused without appraisal of his right to the accused becomes suspect and his conviction is liable to be set aside. On the same analogy, the search, seizure and arrest of the appellant under the provisions of the Customs Act without 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. 11. Apex Court in State of Punjab V/s. 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 empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of protection to the suspect. 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. 13. The Hon ble Supreme Court has, in Vijaysinh Chandubha Jadeja V/s. 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 bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the raid. Para 24 of Mohammad Bagour (supra) reads as under: 24. The Trial Judge has recorded that notice Ex PW5/B served upon the respondents/accused was not in compliance of provisions of Section 50 of NDPS Act, as it was partial notice and as the respondents/accused had offered to be searched in the presence of a Gazetted Officer of a custom besides a Magistrate. The purpose behind Section 50(1) NDPS Act, is to avoid criticism of arbitrary and high handed action against authorised officer. It has to be borne in mind that a Gazetted officer belonging to the department which is effecting a seizure may have bias 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. 15. None of the witnesses PW-1 to PW-4 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 seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs House to sign the panchnama. It is also recorded that Shashidan was in the Baggage Centre when the Officers came to call him to act as a panch. The Collector of Customs (Appeals) Bombay also recorded that PW-4 has admitted that he was called from UB Centre by Customs Officers and thereby indicated that he was not a spot witness. 18. Moreover, the case of prosecution is based on the evidence of PW-1 and PW-4. PW-4 was summoned by the adjudicating authority and respondent no.1 was permitted to cross examine PW-4 in the adjudicating proceedings. The adjudicating authority had recorded evidence of PW-4 in the adjudicating proceedings. Prosecution produced before the Trial Court the evidence dated 16th November 1992 of PW-4 recorded by the adjudicating authority. In the evidence before the adjudicating authority, PW- 4 says that on 8th January 1991 at 5.30 p.m. he was called from the UB Centre by the Customs Officers to the Customs House and when he reached there, he was shown some packets containing gold bars. PW-4 says he only saw the gold bars and panchnama was drawn in his presence at 6.00 p.m. But the panchnama, which is on record in the Trial Court at Exhibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 21. I have to also note that 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. 22. The Apex Court in Chandrappa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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