TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 552
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....1996 the Officer-in-charge of Kaliachak Police Station had been to Sujapur to work out a secret information, accompanied by S.I. D.K. Jha, Constable Hiren Sarkar, constable Murari Ram Mondal and one N.V.F. They intercepted one man who alighted from one Maxi-taxi and took him to Sujapur Police camp. The said person confessed that he had in his possession five gold biscuits and brought out five gold biscuits from his rectum. Officer-in-charge P.K. Dutta seized those gold biscuits in presence of witnesses under a seizure list and came back to police station, lodged G.D. Entry being Kaliachak Police Station General Diary No. 765 dated 28th September, 1996 and the gold biscuits were examined by a goldsmith. On 7th October, 1996, S.I. D.K. Jha ha....
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....officer of the Customs or before the Magistrate. But such right of the accused person was not disclosed to him by the police authority while conducting search and seizure under. Ms. Mukherjee further contended that even if the police authority can be said to have the power to seize the gold biscuits, it did not have the power to retain the same. Police ought to have given the same to the Customs Authority which in this case had not been done. On 28th September, 1996 alleged seizure was made by police and it was handed over to Customs Authority on 7th October, 1996. Ms. Mukherjee strenuously argued that according to the case of prosecution, the gold bars were seized from the possession of the accused person. But there is no explanation as to....
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....as expert, as to the character of the yellow coloured metal is of no consequence. These issues were never considered by learned Trial Court. 5. Section 102 of the Customs Act says:- "Section 102 in the Customs Act, 1962 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 the 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 custo....
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.... (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold 2[and manufactures thereof] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify." 7. Section 123, upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in my humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter. 8. It goes without saying that "Generalia s....
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....nder obligation to inform the accused about his statutory right to get searched before the gazetted officer, but accused was deprived of such right and infraction was caused to statutory provision. 10. That apart, it is rightly argued by Ms. Mukherjee that the incriminating evidence, which was used against the accused person, was not put forth during his examination under Section 313 of the Code of Criminal Procedure and thereby giving him an opportunity to explain such incriminating circumstances. This is a serious lacuna and it speaks of a lack of fair play as well. Examination of accused under Section 313 of Code of Criminal Procedure is not a mere formality. The intention of the legislature is to give an opportunity to the accused pers....