9911796707
TMI Blog2023 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... onsistency, the later special law will prevail over the earlier general law. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this Special Act would amount to depriving an accused of his statutory right. The examination under Section 313 of the Code of Criminal Procedure does have the nexus with the defence, which the accused may decide to bring if necessary. It is the mandatory obligation of the Court to hold a fair trial. Lack of opportunity to explain h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man who alighted from one Maxi-taxi and took him to Sujapur Police camp. The said person confessed that he had in his possession five gold biscuits and brought out five gold biscuits from his rectum. Officer-in-charge P.K. Dutta seized those gold biscuits in presence of witnesses under a seizure list and came back to police station, lodged G.D. Entry being Kaliachak Police Station General Diary No. 765 dated 28th September, 1996 and the gold biscuits were examined by a goldsmith. On 7th October, 1996, S.I. D.K. Jha handed over the gold biscuits to the Customs Authority in presence of the learned A.C.J.M. Malda and those biscuits were seized by the Customs Authority. After obtaining sanction from the appropriate authority a written complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police authority can be said to have the power to seize the gold biscuits, it did not have the power to retain the same. Police ought to have given the same to the Customs Authority which in this case had not been done. On 28th September, 1996 alleged seizure was made by police and it was handed over to Customs Authority on 7th October, 1996. Ms. Mukherjee strenuously argued that according to the case of prosecution, the gold bars were seized from the possession of the accused person. But there is no explanation as to why the police took 10 days time to hand over the so called gold biscuits to the customs authority. No Malkhana register was produced to show that the gold biscuits were kept in the Malkhana of the police station during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate.- (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of the customs shall, if such person so requires take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. (2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate. (3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. 7. Section 123, upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in my humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter. 8. It goes without saying that Generalia specialibus non derogant is a maxim used for interpretation of statute which means general laws do not prevail over special law. When two provisions of law one b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfraction was caused to statutory provision. 10. That apart, it is rightly argued by Ms. Mukherjee that the incriminating evidence, which was used against the accused person, was not put forth during his examination under Section 313 of the Code of Criminal Procedure and thereby giving him an opportunity to explain such incriminating circumstances. This is a serious lacuna and it speaks of a lack of fair play as well. Examination of accused under Section 313 of Code of Criminal Procedure is not a mere formality. The intention of the legislature is to give an opportunity to the accused person to explain the incriminating circumstances appearing against him in the evidence adduced by the prosecution witnesses. The examination of an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
