TaxTMI 
TaxTMI 
2020 (1) TMI 767
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....ersonal search of respondent no.1 resulted in the recovery of five gold bars of 10 tolas each and the search of the plastic bag carried by Vinodkumar Bafna, contained Indian currency of Rs. 2,75,000/-. It is prosecution's case that on interrogation, respondent no.1 admitted that he had just purchased those five gold bars from Vinodkumar Bafna and handed over Rs. 2,00,000/- cash to Vinodkumar Bafna. It is also prosecution's case that Vinodkumar Bafna also admitted the same. The five gold bars were weighing 583 gms. with a market value of Rs. 2,08,714/-. It is stated that those gold bars were seized in the reasonable belief that the same were smuggled into India and hence, liable to confiscation under the provisions of the said Act. The Indian currency amounting to Rs. 2,75,000/-, that was recovered from Vinodkumar Bafna, was also confiscated under Section 121 of the said Act as the same was believed to be sale proceeds of smuggled gold bars. Therefore, it is prosecution's case that respondent no.1 had purchased the five imported gold bars from Vinodkumar Bafna and Vinodkumar Bafna was carrying the sale proceeds of smuggled gold. 3. Statements of respondent no.1 and Vinodkumar Baf....
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.... a fine of Rs. 15,000/- and in default, to undergo simple imprisonment for three months. No separate sentence was passed under Section 135 (1) (b) (i) of the said Act. The gold, which was seized, had already been disposed. 6. Against the order of the Trial Court, respondent no.1 - Oghadmal Hiralal Jain filed an appeal in the Courts of Sessions at Greater Mumbai being Criminal Appeal No.230 of 2001. The Sessions Court re-appreciated the evidence and by an order and judgment dated 6th March 2003 was pleased to allow the appeal and thereby set aside the order and judgment dated 14th August 2001 passed by the Trial Court. The Sessions Court acquitted respondent no.1. Aggrieved by the said order and judgment of the Additional Sessions Judge, Greater Mumbai, appellant has filed the present appeal. 7. With the assistance of Mr. Natarajan, learned counsel for appellant and Mr. Jambaulikar, learned counsel for respondent no.1, I have perused the order and judgment of the Trial Court, the impugned order and judgment and the evidence. I am in agreement with the views expressed by the Sessions Court. 8. Before I go ahead dealing with the evidence and explain why I am in agreement with....
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.... said Act mandates that When any officer of customs is about to search any person under the provisions of Customs Act, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. These are necessary safeguards 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 V/s. Parmanand and Anr. (2014) 85 ACC 662. The only difference between Section 102 of the said Act 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 search....
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....lant even under the provisions of the Customs Act is liable to be quashed and set aside. 11. Apex Court in State of Punjab V/s. Baldev Singh 1999 (6) SCC 172, though that judgment was rendered under the provisions of NDPS Act, held that it is an obligation of the empowered officer and his duty before 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 (Supra) has held that the wording of Sub-section 1 of Section 102 of the said Act is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act which is held to be mandatory. 12. The provisions of Section 102 of 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 th....
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....gistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. It was submitted before constitutional Bench of Hon'ble Supreme Court as under: "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 ....
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....ng appraised accused of his right and asked whether he wanted to get his personal search in the presence of a Gazetted Officer or a Magistrate. Therefore, on this ground alone, the search of the person of accused or seizure of five bars of gold or cash of Rs. 2,75,000/- has to be held as illegal. If the seizure of the gold is illegal, the question of respondent no.1 being prosecuted does not and cannot arise. 16. In the adjudication proceedings, the Collector of Customs (Appeals) Bombay by an order dated 30th November 1993 has directed that the amount of Rs. 2,00,000/- be returned to respondent no.1 on the ground that there is no evidence that the amount of Rs. 2,00,000/- was sale proceeds of smuggled gold. This appeal was filed against an order dated 21st April 1993 passed by the Additional Collector of Customs (P) Bombay. Admittedly that amount has been returned to respondent no.1. Mr. Natarajan states and Mr. Jambaulikar admits that respondent no.1 has received the amount of Rs. 2,00,000/-. As noted earlier, it is prosecution's case that the gold was found on respondent no.1 and the sale proceeds was found on Vinodkumar Bafna. Whereas, it is the case of respondent no.1 that n....
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....g gold bars. PW-4 says he only saw the gold bars and panchnama was drawn in his presence at 6.00 p.m. But the panchnama, which is on record in the Trial Court at Exhibit P-2, shows that record of panchnama entered at 4.00 p.m. 19. The Trial Court noted the contradictions found in the deposition of PW-4 recorded before the adjudicating authority and before the Trial Court. The evidence of PW-4 shows that the contents of panchnama Exhibit P-2 were written by the Customs Officer - Ravindranath Singh (PW-1) on his own and the panchas had no talk with the Customs Officer. PW-4 in his cross examination, after charge says "the writing of the panchnama was going on for an hour. I was present on Acharya Marg, a road. I was passing by the side of the same building when the Officers called me. It was 2.15 p.m.". Therefore, it does indicate that the entire panchnama was not recorded in his presence. PW-4 says that before writing panchnama he and other panch had no talk with the Customs Officers in respect of showing of the search warrant. PW-4 also says that he did not dictate the contents of panchnama and the Customs Officers wrote the contents on their own. PW-4 says that there was a t....
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....late 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 Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, th....