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682 EXCISE LAW TIMES [ Vol. 372

witnesses particularly PW1 from where it would be evident that the said witness
in his official capacity led the DRI officials for conducting search and seizure at
the above mentioned said premises. No documents relating to search authoriza-
tion or movement register reflecting that the DRI officers on the basis of infor-
mation they received had been to the residence of the present petitioner, are
available. None of the other DRI officers (PW2 and PW3) ever represented in
their oral deposition that they were present at 16, Rotu Sarkar Lane, Kolkata-
700073 when the raid was conducted and search and seizure had taken place.
Further no information was given to the local police authorities prior to conduct-
ing any search at the said premises/residence of the present petitioner. This as-
sumes much importance in view of the fact that the Ld. Courts below has laid
much emphasis on the statement of the accused under Section 108 of the Cus-
toms Act.
26. The prosecution in order to prove its case was duty bound to con-
nect the materials which they claimed to have received from the DRI Authorities.
No document in evidence has been produced regarding the materials and/or the
documents being seized/reseized by the complainant of the instant case being
the Authorized Ranger attached to the office of the Conservator of Forest, Wild
Life Circle from the DRI Authorities. The connecting document and/or transfer
of document being absent failed to establish any official change of custody of the
seized articles which were the subject matter of the case. This Court took efforts
by adding the Customs/DRI Authorities as a party and provided them ample
opportunity for producing the office copy and come with an affidavit through an
appropriate officer of the said department, however, only a xerox copy was ten-
dered regarding the document referred to above but no one came forward on
behalf of the department to submit the said document on oath.
27. The statement under Section 108 of the Customs Act which has
been made the foundation for conviction by the Ld. Courts below, firstly is a
very weak piece of evidence, as no Court can rely upon a statement of the ac-
cused until and unless the same is corroborated by material particulars. More-
over, the said statement under Section 108 of the Customs Act were made before
the DRI Authorities which can be used in a prosecution under the Customs Act
and using the same as a foundation for an offence under the 1972 Act is against
the settled principles of law. To that extent the authorities cited by Mr. Moitro,
Ld. Senior Advocate for the petitioner are aptly applicable in the present case.
[Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; The State of Gujarat v.
Anwar Osman Sumbhaniya & Ors., MANU/SC/0286/2019].
28. Having due regard to the submission advanced by the State, I am
constrained to hold that on the evidence so relied upon by the prosecution it is
not a case of mere irregularity but raises a grave suspicion regarding the manner
and mode of search and seizure alleged to be conducted at the said premises and
it would not be fit and proper to arrive at a finding of guilt on the basis of the
search and seizure.
29. Accordingly, the judgment and order of conviction and sentence
passed by the Ld. Metropolitan Magistrate, 11th Court, Calcutta in case No. 718
of 1996 and affirmed by the Ld. Additional District & Sessions Judge, 9th Fast
Track Court, Bichar Bhavan, Calcutta in Criminal Appeal No. 31 of 2010 are set
aside.
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