TaxTMI 
TaxTMI 
2020 (1) TMI 644
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....aband gold on his person, officers of appellant kept watch at Panchayatwadi Street, Mumbai. Pursuant thereto, the officers of appellant apprehended respondent no.1 and on his personal search, the officers recovered 9 pieces of gold weighing 504.900 gms approximately. Respondent no.1 admitted that the said 9 pieces of gold were made from smuggled foreign marked gold biscuits with the intention of removing foreign marking. Since respondent no.1 could not produce any receipt or document for possession of the said 9 pieces of gold, all those 9 pieces of gold were seized in the reasonable belief that the same were made of smuggled foreign marked biscuits and liable for confiscation under the provisions of Customs Act 1962. 4. During the course of investigation, residential premises of respondent no.1 at 302, Madhupuri Building, Baptista Road, Vile Parle (W), (residence) was searched and strips and corners of contraband gold of different shapes and sizes numbering 25 pieces weighing 60.350 gms were seized in the reasonable belief that the same were converted from smuggled foreign marked gold biscuits. During further investigation, statement of respondent no.1 was recorded, when he ....
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....it into two parts. First one is seizure of alleged contraband gold from person of accused and the second part is house search of accused and seizure of 28 pieces of gold in the form of strips and corners from the house of accused. In both the parts, it is prosecution's case that gold allegedly found in possession of accused on his person and in his house, was prepared or made after removing foreign marking on them. According to prosecution, since the assay reports pointed out that the pieces of gold recovered from accused contained certain fineness, accused had smuggled or imported gold in India in contravention of the provisions of the Customs Act. 9. At the outset, I have to note that prosecution has totally failed to prove that accused was responsible or in any way responsible for fraudulent evasion of duty or he had been instrumental in the importation of the gold. Prosecution has also failed to prove that accused knew or had reason to belief that the gold found in his person are liable to confiscation. There is no evidence in that regard because the gold seized admittedly did not have any foreign marking. For proving the offence under Section 135, prosecution must prima fac....
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....available to an accused against the possibility of false involvement and therefore, the procedure prescribed has to be meticulously followed. The communication of this right has to be clear, unambiguous and individual. Accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. I find support for this view in many decisions rendered by the Apex Court and other High Courts under the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act 1985 and in particular State of Rajasthan Vs. Parmanand and Anr. (2014) 85 ACC 662. The only difference between Section 102 of the Customs Act and Section 50 of the Narcotic Drugs and Psychotropic 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. I find suppor....
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....ore conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. This court in Yusuf Suleman's case (Supra) has held that the wording of Sub-section 1 of Section 102 is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act which is held to be mandatory. 11. The provisions of Section 102 of The Customs Act, 1962 ("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. It is the obligation of the officer of customs to apprise ....
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.... "14.Adopting the same line of arguments, Mr. P.P. Malhotra, the learned Additional Solicitor General, appearing on behalf of the Government of NCT of Delhi maintained that it is clear from language of Sections 41(2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted officers differently, reposing higher degree of trust in them and, therefore, if a search of a person is conducted by a gazetted officer, he would not be required to comply with the rigours of Section 50(1) of the Act. It was argued that the view expressed by this Court in Ahmed (supra), is incorrect and, therefore, deserves to be reversed." But the Hon'ble Supreme Court has considered who will be a more appropriate authority between a Gazetted Officer and a Magistrate. In paragraph 32 Supreme Court stated as under : "32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but 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, w....
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....dence of P.W.-3 - Jayesh Shrisat, it appears that panchnama of 9 pieces of gold weighing around 504 grams was prepared and the panchnama is at Exhibit P-10. Panch witnesses have not been produced to testify. The prosecution, therefore, relies on the evidence of P.W.-3. In the cross-examination of P.W.-3 it appears that 9 pieces of gold recovered from accused were not gold bars, but they were pieces of different sizes and there was no marking on the pieces. Therefore, the onus is on the prosecution to prove that what was seized from the possession of accused, was contraband gold. The prosecution has not led any evidence to prove that the said 9 pieces of gold were prepared or manufactured from smuggled foreign marked gold of foreign origin. The prosecution relies upon the statement of accused recorded under Section 108 of the Customs Act. The prosecution also relies on the assay reports of analysis to submit that purity of gold or fineness of gold was 97%. Ms Mane Learned Special PP relied on Apex Court's judgment in Ramesh Chandra Vs. State of West Bengal AIR 1970 Supreme Court 940 to submit that because the arrest is made only after recording of statement under Section 108 of the ....
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....tatement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion." 17. The prosecution has merely tendered on record the Mint report which does not contain any detail to co-relate with the assay carried out by the Mint is of the gold that was actually seized from respondent. This is provided that the gold seized has been legally seized. The prosecution has not established on record by bringing original extracts from the register containing entries of sample seized by P.W.-3 on examination of contents of Exhibit P-10 Panchnama. It is clear that no specific identification number or any other information has been given to the gold samples. There is no evidence to show as to in whose custody the gold was until it was sent for assay. There are various other omissions mentioned in the impugned judgment, which for sake of brevity, I am not reproducing. We have to keep in mind that what was seized is only strips and few small gold corners without foreign marking. It was for prosecution to bring evidence to the effect that only foreign gold can contain this level of purity. I also do not find any inventory of samples as required under Section ....
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....s prepared by his staff and he only signed the same. P.W.-6 also says he does not remember the contents of panchnama reduced into writing by the officers. In any event, that panch witness has not been examined. P.W.-6 says the gold was brought in sealed packet by the officer and it was opened in his presence. There is nothing to indicate that packet was the same packet which contained the same gold that was seized from the house of respondent. 21. 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 review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Co....