1984 (5) TMI 47 - HC - Customs

Convictions Overturned Due to Procedural Lapses in Customs Act Operations

UNION OF INDIA Versus ABDULKADAR ABDULGANI HASMANI

UNION OF INDIA Versus ABDULKADAR ABDULGANI HASMANI - 1991 (55) E.L.T. 497 (Guj.) Issues Involved:1. Voluntariness of the accused's statements.2. Authority of the officers conducting the search and seizure.3. Adequacy and reliability of evidence regarding the foreign origin of goods.4. Application of Section 123 of the Customs Act.5. Procedural compliance and legality of the search and seizure operations.Issue-wise Detailed Analysis:1. Voluntariness of the accused's statements:The accused argued that their statements were not voluntary, asserting that they were in the custody of Customs Officers from the time of the seizure on 26-2-1976 until their formal arrest on 1-3-1976. They claimed their statements were recorded under duress and retracted at the earliest opportunity. The Court noted that the accused had indeed raised these allegations in their bail application on 2-3-1976, and there was no rebuttal from the Customs Department. The Court found that the prolonged custody without formal arrest and the delay in recording the statements suggested that the statements might not be voluntary.2. Authority of the officers conducting the search and seizure:The Customs Inspector Vahidkhan and Superintendent Dhirajlal conducted the search and seizure. However, the Court found no evidence that either officer was authorized under the Customs Act to perform these functions. The search warrant was not produced, and there was no proof that the officers had the necessary authorization from the Board or the Collector of Customs. This lack of authorization meant that the seizure could not be considered valid under the Act.3. Adequacy and reliability of evidence regarding the foreign origin of goods:The prosecution failed to provide reliable evidence to prove that the goods were of foreign origin. The Customs officers' testimonies were based on their experience and the markings on the goods, but no expert was examined to confirm the foreign origin. The Court emphasized that mere markings could not be taken as proof of foreign origin without corroborative expert evidence. The goods were also not tested by any recognized laboratory like ATIRA.4. Application of Section 123 of the Customs Act:Section 123 shifts the burden of proof to the accused to show that the goods are not smuggled if they are seized under the Act. However, the Court concluded that the seizure in this case was not under the Act due to the lack of proper authorization of the officers. Consequently, the burden of proof did not shift to the accused, and the prosecution had to prove beyond reasonable doubt that the goods were smuggled, which they failed to do.5. Procedural compliance and legality of the search and seizure operations:The Court found several procedural lapses in the search and seizure operations. The search warrant was not produced, and there was no evidence that the officers were authorized to conduct the search and seizure. The goods were seized in February 1976 but were not sent to the godown until September 1976, with no record of their custody during this period. The samples taken from the goods were not properly documented, and the panchas were not examined. These procedural lapses further weakened the prosecution's case.Conclusion:The Court allowed the appeals of accused Nos. 2 and 3, setting aside their convictions and sentences. The appeals filed by the Union of India and the State of Gujarat against the acquittal of the remaining accused were dismissed. The Court emphasized the importance of proper authorization and adherence to procedural requirements in search and seizure operations under the Customs Act.