Page 139 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] UNION OF INDIA v. JASMINE JAYANTILAL THADESHWAR 817

2020 (372) E.L.T. 817 (Bom.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. Shriram, J.
UNION OF INDIA
Versus
JASMINE JAYANTILAL THADESHWAR
Criminal Appeal No. 1048 of 2002, decided on 8-1-2020
Prosecution (Customs) - Gold smuggling, lack of evidence - Illegal
search - Acquittal of accused, sustainability - No evidence adduced by Reve-
nue to establish that accused was in any way instrumental in illegal import of
gold or had knowledge that gold recovered from his possession/residence was
liable for confiscation - Seizure itself was illegal having not been carried out
in terms of statutory provision of Section 102 of Customs Act, 1962 inasmuch
as accused was never asked as to whether he wished to be taken before a Mag-
istrate or a Gazetted Officer of Customs for causing his search in their pres-
ence - Settled in catena of decisions under aforesaid provision and under simi-
lar provision of Section 50 of Narcotic Drugs and Psychotropic Substances Act,
1985 that it is right of accused to be asked of this question and if accused is not
informed of his right, search itself gets vitiated - Even if search is taken in
presence of Gazetted Officer of Customs, still this question has to be asked
because accused may have more confidence in Magistrate rather than Customs
officer - Thus illegality of search itself is sufficient to acquit accused - Not-
withstanding, evidence adduced by Revenue is also not sufficient to convict
accused - There is no evidence that recovered gold was manufactured from
imported gold as there was no marking on said gold, panch witnesses to search
were not produced for examination - Mere confessional statement without any
corroborative evidence is of no help to Revenue - Mint report submitted is also
not reliable as there is no co-relation of report with seized gold - Similarly
there are many lacunas in prosecution case of recovery of gold from residence
of accused e.g. non-production of copy of Search Warrant, non-examination of
officer issuing search warrant, witness of house search becoming hostile and
Revenue failing to establish ownership of house solely with accused - In view
of above, no illegality or impropriety in Trial Court’s order acquitting accused
- Impugned order sustainable - Section 135 of Customs Act, 1962. [paras 9, 11,
14, 15, 16, 17, 18, 19, 20, 23]
Search of persons under Customs Act - Scope of - In case of search of
persons under Sections 100 and 101 of Customs Act, 1962, accused has a right
to be asked as to whether he wishes to be searched in presence of Gazetted
Officer of Customs or wishes to be taken before nearest Magistrate for such
search - Denial of this right would make the search illegal - Section 102 of Cus-
toms Act, 1962. [paras 9, 11]
Prosecution - Presumption in favour of accused - Settled principle of
criminal jurisprudence that every person shall be presumed to be innocent
unless they are proved guilty by competent Court of law - In this case, having
secured acquittal from Trial Court, this presumption is reinforced and
strengthened in accused’s favour in appellate Court. [paras 20, 21, 22]
Appeal dismissed
EXCISE LAW TIMES  15th June 2020  139