Mandatory search safeguard under Customs law breached, making the search illegal and the acquittal stand.

Failure to apprise an of the mandatory right under Section 102 of the Customs Act, 1962 to be taken before the nearest gazetted officer of customs or a magistrate rendered the personal search illegal. The Bombay HC treated the safeguard as mandatory and comparable in protective purpose to the NDPS framework, and found no reliable record that the accused had been informed of that right. It also noted weaknesses in the panch witness evidence and panchnama, and that the related adjudication had returned the alleged sale proceeds for lack of proof of smuggled-gold proceeds. Applying the double presumption of innocence in an appeal against acquittal, the Court upheld the acquittal and the prosecution appeal failed.

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Issues: Whether non-compliance with the mandatory safeguard under Section 102 of the Customs Act, 1962 vitiated the search and seizure and entitled the accused to acquittal.

Analysis: The right under Section 102 had to be communicated clearly and before the personal search, so that the person searched could require production before the nearest gazetted officer of customs or a magistrate. The safeguard was treated as mandatory and comparable in its protective purpose to the corresponding protection under the NDPS framework. The record did not show that the accused had been apprised of this right. The evidence of the panch witness and the contents of the panchnama were found unreliable, and the adjudication proceedings had also resulted in return of the alleged sale proceeds for want of proof that they were proceeds of smuggled gold. In an appeal against acquittal, the double presumption of innocence also operated in favour of the accused.

Conclusion: The search and seizure were held illegal for non-compliance with Section 102, the acquittal was upheld, and the prosecution appeal failed.

Final Conclusion: The conviction could not be sustained because the foundational search was not lawfully conducted and the acquittal remained undisturbed.

Ratio Decidendi: Failure to apprise a person of the mandatory right under Section 102 of the Customs Act, 1962 to be taken before the nearest gazetted officer of customs or a magistrate renders the search illegal and any conviction founded on such search unsustainable.

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