Page 142 - ELT_15th June 2020_VOL 372_Part 6th

820 EXCISE LAW TIMES [ Vol. 372

evasion of duty or he had been instrumental in the importation of the gold. Pros-
ecution has also failed to prove that accused knew or had reason to [believe] that
the gold found in his person are liable to confiscation. There is no evidence in
that regard because the gold seized admittedly did not have any foreign mark-
ing. For proving the offence under Section 135, prosecution must prima facie es-
tablish a case of legal seizure of contraband gold from the conscious possession
of accused. For that purpose, at the outset, prosecution must prove that the sei-
zure effected from the person of accused on 2-11-1990 at Panchayatwadi Road,
was legal. Before prosecution seizing any gold in person, there are certain for-
malities to be followed as mentioned in Section 102 of the Customs Act, 1962.
Section 102 reads as under :
102. Persons to be searched may require to be taken before gazetted of-
ficer 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 per-
son 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 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 witnesses.
(5) No female shall be searched by any one excepting a female.
Search, seizure and arrest of respondent under the provisions of Cus-
toms Act without appraising his right under Section 102 of the Customs Act,
would become suspect and if there is any conviction based on possession of such
search and seizure under the provisions of Customs Act, the same will have to be
set aside. This is because sub-section (1) of Section 102 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 un-
necessary 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 fol-
lowed. The communication of this right has to be clear, unambiguous and indi-
vidual. 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 provi-
sions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
and in particular State of Rajasthan v. Parmanand and Anr. [(2014) 85 ACC 662],
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