9911796707
TMI Blog2024 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision are as under:- 3.1. Briefly stated prosecution case is that on 10.11.1989 on some information / tip received by the Custom Officers, a secret watch was kept near the bus stop at For as Road in Mumbai where they noticed the arrival of Applicant on motorcycle. He parked his motorcycle and went into a shop and returned back thereafter when he was apprehended for possession of gold bars and taken to the Customs Office situated at Marine Lines, Mumbai for recording panchnama. On personal search of accused, he was found in possession of one packet containing 4 gold bars of 10 tolas each collectively valued at Rs. 1,44,000/- at that time. Accused did not give a satisfactory explanation for possession of the gold bars, hence it was seized. Panchnama was recorded in the Customs Office along with statement of accused under Section 108 of the Customs Act. Undoubtedly this was a confessional statement of accused which was recorded. It was defence of accused that the gold bars were given to him by one Mr. Rajesh at Grant Road for delivering the same to one Mr. Kirti who was to come near the bus stop, but the same was not investigated further by the prosecution or even considered by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve procedure is mandatory in nature to enable the prosecution to seize the contraband, arrest the person and launch prosecution under Section 108 of the Customs Act. Further under Section 108 of the Customs Act, there is a power to the Gazetted Officer of Customs to summon any person whose attendance he considers necessary either to give evidence or produce the documents or any other thing in any inquiry which such Officer is making under this Act. He would submit that all such inquiry as contemplated under the provisions of Section 102 read with Section 108 of the Customs Act is deemed to be a judicial procedure under Section 103 of Customs Act read with Section 228 of the Indian Penal Code, 1860 (for short IPC ). He has taken me through the above legal provisions. After reading and analysing them, Mr. Chaudhari would submit that in the present case there is complete transgression of the aforesaid statutory and mandatory prescribed provisions by the prosecution right from the inception stage after apprehending the Applicant. He would draw my attention to the facts of the case which are delineated hereinabove and considered by both the Courts below and would submit that the mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence conforms to the prescribed procedure envisaged under Section 102 read with Section 108 of the Customs Act for enabling the prosecution to apprehend Applicant and seize the contraband. In addition thereto, he would submit that though record does not bear it out, since sanction for prosecution was received in the year 1994 i.e. five years after the date of seizure of the gold bars, during the interregnum, prosecution followed the prescribed procedure for enabling it to prosecute the Applicant. He would submit that at this time three out of four gold bars which were seized and were returned back to Applicant and one was retained and endorsed for trial. However he would fairly submit that there is no material placed on record before both the Courts below to substantiate this submission, nor he is in a position to place any material before this Court. Next he would submit that at the time of trial the retained gold bar produced by PW-1 in evidence was not the same gold bar which was seized and endorsed and it did not bear the signature of the panchas in the prescribed form. He would however submit that the aforesaid issues have been adequately considered by both the Courts below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed in the case of search and seizure of any contraband. Section 102 of the Customs Act reads thus:- 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 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 but otherwise shall direct that search be made. (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 seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar which was confiscated during search. Prosecution failed to record the seizure before any independent witness with the sanction of the Statutory Authorities thus violating the prescribed procedure envisage under Section 108 of the Customs Act which would have enabled the prosecution to launch prosecution against Applicant. Nonfollowing of the statutory procedure is fatal to the prosecution case. Both Courts below failed to consider the vital aspect before convicting the Applicant. Not only this, learned Trial Court went one step further by accepting the alleged seized gold bar which was produced by PW-1 as the same seized gold bar which admittedly did not bear the seal and signature of the panchas nor there was any identification mark on the cloth bag containing the same, when the prosecution failed to prove Exhibit-P4 which was marked for identification. This discrepancy on the face of record in trial could not have proved the prosecution case beyond all reasonable doubts. 11. Needless to state that confessional statement of Applicant recorded under Section 108 of the Customs Act was retracted by Applicant and therefore it was duty of the prosecution to prove its case beyond re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 13. That apart, the very panchas who recorded the panchnama on the basis of which summons were issued to Applicant and further prosecution was launched after five years of the occurrence of the incident and were not examined by the prosecution during trial at all. When such a case was before the Trial Court, it was the duty of the prosecution to prove its case beyond all reasonable doubts. Reading of the twin judgement of both the Courts below, it is clearly seen that the Prosecution failed in its endeavour to convict the Applicant beyond all reasonable doubts. To add impetus to this finding, attention is drawn to paragraph No.7 to the impugned judgement of the Appellate Court dated 01.10.2002. The learned Appellate Court itself records the finding that it is true that panchanama was not itself proved by examining all the panchas, but in the same breath it holds that such panchanama has to be left out of consideration. In the same paragraph under reference while referring to provisions of Section 108 of the Customs Act, the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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