Sudershan Laxman Teddu v. Union of India and Ors.

1. Heard Mr. Chaudhari, learned Advocate for Applicant; Mr. Surpande, learned empanelled Counsel / Advocate for Respondent Nos.[1] and 2 – Union of India and Dr. Krishnaiyer, learned APP for Respondent No.3 – State of Maharashtra.

2. This Revision Application is challenging the order dated 01.10.2002 passed by the Sessions Judge in Criminal Appeal No.289 of 2001 upholding order of conviction of Applicant for offences committed under Section 135(1)(b) read with Section 13(1)(i) of the Customs Act, 1962 (for short ‘the Customs Act’); under Section 8(1) read with Section 85(1)(2) of the Gold (Control) Act, 1968. By order 1 of 16 dated 20.08.2019, Mr. Chaudhari, learned Advocate and Counsel practising at the Bar was appointed by this Court to represent and espouse the cause of the Applicant. Accused shall be referred to as Applicant for convenience. Though there are two concurrent orders of conviction, the present Revision raises an important issue of law pertaining to the power of the enforcement agency in conducting search and seizure under the Customs Act.

3. The relevant facts necessary for adjudication of the present Revision are as under:-

3.1. Briefly stated prosecution case is that on 10.11.1989 on some information / tip received by the Custom Officers, a secret watch was kept near the bus stop at Foras Road in Mumbai where they noticed the arrival of Applicant on motorcycle. He parked his motorcycle and went into a shop and returned back thereafter when he was apprehended for possession of gold bars and taken to the Customs Office situated at Marine Lines, Mumbai for recording panchnama. On personal search of accused, he was found in possession of one packet containing 4 gold bars of 10 tolas each collectively valued at Rs. 1,44,000/- at that time. Accused did not give a satisfactory explanation for possession of the gold bars, hence it was seized. Panchnama was recorded in the Customs Office along with statement of accused under Section 108 of the Customs Act. Undoubtedly this was a confessional 2 of 16 statement of accused which was recorded. It was defence of accused that the gold bars were given to him by one Mr. Rajesh at Grant Road for delivering the same to one Mr. Kirti who was to come near the bus stop, but the same was not investigated further by the prosecution or even considered by the Trial Court. Admittedly this gold bar below Exhibit-P[4] is not the gold bar which was seized from the Applicant as it did not bear the endorsement and signature of the panchas – witnesses on it. The seized gold bar is not produced by prosecution in trial. Hence whether the prosecution has proved its case beyond all reasonable doubts and adequately identified seized sample gold bar in the present case is argued by Mr. Chaudhari on behalf of Applicant to maintain challenge to the twin judgements. Apart from challenging the procedure adopted by prosecution for search and seizure, the aforesaid question is agitated and argued on behalf of Applicant.

4. Mr. Chaudhari draws my attention to the twin judgements of the Courts below and would at the outset submit that they suffer from deciding an inherent legal issue as to whether prosecution complied with the statutory procedure of search and seizure in the present case in accordance with law. He would submit that provisions of Section 102 of the Customs Act require the person to be searched and to be produced and taken before a Gazetted Officer of Customs or Magistrate when the Officer of Customs is about to search any such person under provisions of Section 100 or Section 101 of the Customs 3 of 16 Act, which is the fact in the present case. He would argue that such provisions are to be complied with on apprehending the person without any unnecessary delay and until then undoubtedly the said person before he is produced in front of the Gazetted Officer of Customs or Magistrate, he may be detained. He would next submit that if the Gazetted Officer of Customs or Magistrate finds no reason after deliberating with the person as to whether he is to be searched and seized, no reasonable ground for the search would arise and he can forthwith discharge the said person or in the alternate direct the search to be made. Next he would submit that sub Section (4) of Section 102 of the Customs Act enable and empower the Gazetted Officer of Customs or Magistrate to call upon two or more independent witnesses to attend and witness the search and seizure of contraband and most importantly the search would have to be made in front of two or more witnesses and list of all things seized in the course of such search is to be prepared by such Officer or authorised person and signed by such witnesses (emphasis supplied). He would submit that the above procedure is mandatory in nature to enable the prosecution to seize the contraband, arrest the person and launch prosecution under Section 108 of the Customs Act. Further under Section 108 of the Customs Act, there is a power to the Gazetted Officer of Customs to summon any person whose attendance he considers necessary either to give evidence or produce the documents or any other thing in any 4 of 16 inquiry which such Officer is making under this Act. He would submit that all such inquiry as contemplated under the provisions of Section 102 read with Section 108 of the Customs Act is deemed to be a judicial procedure under Section 103 of Customs Act read with Section 228 of the Indian Penal Code, 1860 (for short ‘IPC’). He has taken me through the above legal provisisions. After reading and analysing them, Mr. Chaudhari would submit that in the present case there is complete transgression of the aforesaid statutory and mandatory prescribed provisions by the prosecution right from the inception stage after apprehending the Applicant. He would draw my attention to the facts of the case which are delineated hereinabove and considered by both the Courts below and would submit that the mandatory provisions envisaged under Section 102 of the Customs Act are completely given go-by in the present case and therefore case of prosecution stands vitiated at the outset itself to enable it to give sanction and approval to prosecute the Applicant. Next he would submit that despite the prosecution not producing adequate cogent, reliable and direct evidence i.e. the seized sample gold bar which was confiscated on the date of incident from Applicant, both the Courts below have completely disregarded this vital aspect and have returned findings to convict Applicant, which are unsustainable in law. In the course of his submissions he has referred to and relied upon the twin decisions of Supreme Court in the case of Ritesh Chakarvarti Vs. State 5 of 16 of M.P.[1] and Union of India Vs. Narendra Ratanchand Jain Ors.[2] to contend that in order to impart authenticity, transparency and creditworthiness to the prosecution proceedings and the prosecution case to succeed in such a case, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate who enjoys more confidence of the common man compared to any other Officer which would add legitimacy to the search proceedings and strengthen the prosecution case as well. He has also referred to the judgement of Vijaysinh Chandubha Jadeja Vs. State of Gujarat[3], in support of his above proposition. He would submit that the aforesaid procedure has not been followed before initiating and launching prosecution against Applicant and in such circumstances, search, seizure and arrest of Applicant under the provisions of the Customs Act without appraisal of his right under Section 102 of the Customs Act he would become a suspect and any conviction based on such an illegal search and seizure is liable to be set aside and conviction and sentence awarded to Applicant is liable to be quashed and set aside.

5. Mr. Surpande, learned Advocate for Respondent Nos.[1] and 2 would contend that in the facts of the case, since Applicant did not give adequate and satisfactory explanation for possession of the gold bars and seized it. He would draw my attention to “Exhibit P-1”

6 of 16 panchanama recorded in the Customs Office and the confessional statement of Applicant recorded after search and seizure of the gold bars from him and would contend that this documentary evidence conforms to the prescribed procedure envisaged under Section 102 read with Section 108 of the Customs Act for enabling the prosecution to apprehend Applicant and seize the contraband. In addition thereto, he would submit that though record does not bear it out, since sanction for prosecution was received in the year 1994 i.e. five years after the date of seizure of the gold bars, during the interregnum, prosecution followed the prescribed procedure for enabling it to prosecute the Applicant. He would submit that at this time three out of four gold bars which were seized and were returned back to Applicant and one was retained and endorsed for trial. However he would fairly submit that there is no material placed on record before both the Courts below to substantiate this submission, nor he is in a position to place any material before this Court. Next he would submit that at the time of trial the retained gold bar produced by PW-1 in evidence was not the same gold bar which was seized and endorsed and it did not bear the signature of the panchas in the prescribed form. He would however submit that the aforesaid issues have been adequately considered by both the Courts below and they will not be fatal to the prosecution case as prosecution witnesses namely PW-1 alongwith PW-2 have deposed that the “paper label” which was affixed 7 of 16 to the seized gold bar seized before it was submitted to the Government of India Mint was produced by PW-1 in the Trial Court which has been accepted as evidence by the Trial Court. He would in his usual fairness submit that admittedly the seized gold bar to which the said “paper label” was affixed by prosecution pancha witnesses and endorsed at the time of seizure was not produced in trial. In addition he would draw my attention to the fact that prosecution did produce the seized gold bar which was taken on record by Trial Court below Exhibit-P[4] but subject to its identification. Mr. Surpande would submit that both the twin judgements give adequate reasons for convicting the Applicant and hence deserves to be upheld.

6. Ms. Krishnaiyer appearing for the State supports the submissions made by Mr. Surpande and would submit that it cannot be denied in the present case that Applicant was apprehended and found in possession of the unauthorised gold bars which were seized by Customs Officers and after seizure, panchanama and confessional statement of Applicant was recorded. She would submit that both Courts below have taken cognizance of the panchanama and statement of Applicant and accepted prosecution case under the statutory provisions of the Customs Act read with the Gold (Control) Act, 1968. She would therefore support the twin judgements indicting, convicting and sentencing Applicant for the offences committed. She would therefore persuade the Court to accept the submissions made by Mr. 8 of 16 Surpande and dismiss the Revision Application.

7. I have heard Mr. Chaudhari, learned Advocate for Applicant; Mr. Surpande, learned Advocate for Respondent Nos.[1] and 2 – the Directorate for Revenue Intelligence and Ms. Krishnaiyer, learned APP for Respondent No.3 - State. Perused the record of the case with their able assistance. Submissions made by them have received due consideration of the Court.

8. At the outset, it is seen that it is admitted position that prescribed procedure under Section 102 of the Customs Act has not been adopted and followed by the prosecution. This is what is heavily argued by the Advocate for Applicant. Hence let us see the procedure envisaged under Section 102 of the Customs Act which is required to be followed in the case of search and seizure of any contraband. Section 102 of the Customs Act reads thus:- “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 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 customs or the magistrate. (3) The Gazetted Officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) Before making a search under the provisions of section 100 or 9 of 16 section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witness. (5) No female shall be searched by any one excepting a female.”

9. It is argued by Mr. Chaudhari that following the aforementioned procedure before search and seizure as envisaged by the statute is a condition precedent for enabling the prosecution to lodge the case against the Applicant which has been not followed. In the present case, it is seen that after apprehending the Applicant, instead of producing the Applicant before the nearest available Gazetted Officer of Customs or Magistrate, rather the Applicant was taken from Grant Road to the Customs Office at Marine Lines, Mumbai where he was frisked and subjected to search in the Customs Office by the Customs Officers. Though panchanama was prepared and confessional statement of Applicant was recorded regarding seizure of four gold bars from him, the details given by him regarding the origin of the gold bars, and the person to whom the delivery was to be made was prominently recorded in the panchanama but, the prosecution in the course of five years of investigation before according the sanction did not take any steps to unearth and investigate the matter. Not only that the confessional statement of Applicant, his search and seizure was not recorded as per the provisions of Section 102 of Customs Act before the statutory Authority and independent panch witnesses. 10 of 16 Prosecution has to prove its case on the basis of cogent and material evidence. Record in this case clearly shows that the seized gold bar which were confiscated and duly signed by the Customs Officer at the time of confiscation on 10.11.1989 was not produced in trial by PW-1 before the Trial Court, rather the ‘paper label’ attached to the said gold bar was produced alongwith a different gold bar.

10. What is significantly shocking in the present case is that prosecution relied merely upon the “paper label” which was affixed to the gold bar when confiscated before it was sent to the Government of India Mint in order to establish the prosecution case, which has been accepted by Trial Court. What is seen is that, while marking the alleged gold bar while taking it on record in evidence below Exhibit- P[4], the Trial Court has specifically marked the same for identification. This is because prosecution failed to prove that it was the same seized gold bar which was confiscated during search. Prosecution failed to record the seizure before any independent witness with the sanction of the Statutory Authorities thus violating the prescribed procedure envisage under Section 108 of the Customs Act which would have enabled the prosecution to launch prosecution against Applicant. Nonfollowing of the statutory procedure is fatal to the prosecution case. Both Courts below failed to consider the vital aspect before convicting the Applicant. Not only this, learned Trial Court went one step further by accepting the alleged seized gold bar which was produced by PW-1 11 of 16 as the same seized gold bar which admittedly did not bear the seal and signature of the panchas nor there was any identification mark on the cloth bag containing the same, when the prosecution failed to prove Exhibit-P[4] which was marked for identification. This discrepancy on the face of record in trial could not have proved the prosecution case beyond all reasonable doubts.

11. Needless to state that confessional statement of Applicant recorded under Section 108 of the Customs Act was retracted by Applicant and therefore it was duty of the prosecution to prove its case beyond reasonable doubts and establish that it followed the statutory provisions for search, seizure and recording of witness statement before the statutory officer. This is admittedly not been done by the prosecution. This is not a case where Respondent No.2 before the Trial Court who is Applicant before me is required to prove or defend his case by leading evidence in rebuttal but a case where prosecution has to prove its case beyond all reasonable doubts. The judgement of the Trial Court dated 27.09.2001 appended at page No.20 of the Revision Application whereas the decision of the Sessions Court is appended at page No.33 of the Revision Application suffer from non-consideration of the above stated statutory provisions by the prosecution. Merely because value of the gold bar confiscated by prosecution is beyond Rs.1,00,000/-, cannot be considered as an adequate reason stated by the Trial Court to indict, convict and sentence the Applicant unless the 12 of 16 prescribed statutory procedure is followed for apprehending, search and seizure of the gold bars to hold the Applicant guilty of any offence committed under the Customs Act or the Gold (Control) Act, 1968 for being in possession of gold without authorisation. This is notwithstanding the fact that the seized gold bar was produced by prosecution during trial.

12. The learned Trial Court has further held that the case of prosecution is corroborated by circumstances on record and that the available evidence of seizure is required to be accepted under Section 108 of the Customs Act. This finding recorded by the learned Trial Court in paragraph No.11 of its impugned judgment is on the face of record erroneous considering the evidence and material discussed hereinabove. Such a finding in the facts of the present case calls for immediate intervention of the Court under Section 397 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) as the judgment of the conviction suffers from perversity. Learned Appellate Court while upholding the decision of the Trial Court has deliberately commented upon the material and evidence on record in paragraph No.4 while appreciating the evidence of PW-5. What is significant to be noted is the fact that both the Courts below has accepted the deposition of independent witnesses for seizure and confiscation of the gold bars without prosecution having followed the prescribed procedure under Section 102 of the Customs Act. Hence the judgement of the Trial 13 of 16 Court and failure of the Appellate Court to consider this issue renders them unsustainable.

13. That apart, the very panchas who recorded the panchnama on the basis of which summons were issued to Applicant and further prosecution was launched after five years of the occurrence of the incident and were not examined by the prosecution during trial at all. When such a case was before the Trial Court, it was the duty of the prosecution to prove its case beyond all reasonable doubts. Reading of the twin judgement of both the Courts below, it is clearly seen that the Prosecution failed in its endeavour to convict the Applicant beyond all reasonable doubts. To add impetus to this finding, attention is drawn to paragraph No.7 to the impugned judgement of the Appellate Court dated 01.10.2002. The learned Appellate Court itself records the finding that it is true that panchanama was not itself proved by examining all the panchas, but in the same breath it holds that such panchanama has to be left out of consideration. In the same paragraph under reference while referring to provisions of Section 108 of the Customs Act, the Appellate Court holds that leaving aside the panchanama or its proof, there is no fault on the part of Trial Court in accepting prosecution’s case and convicting Applicant as he was found in possession of the contraband and therefore there was a reason to believe unless proved to the contrary that he was liable for conviction. Criminal liability will have to be fixed on the basis of concrete evidence 14 of 16 and not belief of the Court. This cryptic finding in the paragraph under reference clearly shows total non-application of mind by the learned Appellate Court on the basis of the material available on record. Admittedly the seized gold bar is not produced by prosecution during trial. Hence the finding of the Appellate Court convicting the Applicant calls for immediate interference. The impugned judgement dated 01.10.2002 is therefore clearly unsustainable in law and is therefore quashed and set aside.