Page 143 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] UNION OF INDIA v. JASMINE JAYANTILAL THADESHWAR 821

The only difference between Section 102 of the Customs Act and Section 50 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is under Sec-
tion 50 of NDPS Act the person has to be searched either in the presence of a
nearest Gazetted Officer of any of the departments mentioned in Section 42 of
NDPS Act or a Magistrate, but under the provisions of Customs Act, accused has
to be taken without unnecessary delay to the nearest gazetted officer of customs
or magistrate. I find support for this view in the judgment of Learned Single
Judge of this Court in Yusuf Suleman v. V.M. Doshi [2001 (4) Mh. L.J. 76] Para-
graphs 15 and 16 of the said judgment read as under :
15. Lastly, it was contended by Ms. Kaushik that Section 102 of the Cus-
toms Act was not complied with and, therefore, the conviction and sentence
recorded against the appellant even under the provisions of Customs Act is
liable to be quashed and set aside.
16. Sub-section (1) of Section 102 of the Customs Act mandates that when
any officer of customs is about to search any person under the provisions of
the Customs Act, the officer of customs shall, if such person so requires,
take him without unnecessary delay to the nearest Gazetted Officer of Cus-
toms or Magistrate. The wording of sub-section (1) of Section 102 is manda-
tory in nature and is on par with Section 50 of the N.D.P.S. Act which is
held to be mandatory. The only difference is that whereas under Section 50
of the N.D.P.S. Act if the accused so requires he has to be searched either in
the presence of a nearest Gazetted Officer of any of the departments men-
tioned in Section 42 of the Act or a Magistrate but under the provisions of
Customs Act the accused has to be taken without unnecessary delay to the
nearest Gazetted Officer of Customs or Magistrate. As stated earlier in re-
spect of the similar provisions of the N.D.P.S. Act the Apex Court has held
that the accused has to be apprised of his right and asked whether he wants
his search to be taken in the presence of a Gazetted Officer or a Magistrate
and the search, seizure and arrest of the accused without appraisal of his
right to the accused becomes suspect and his conviction is liable to be set
aside. On the same analogy, the search, seizure and arrest of the appellant
under the provisions of the Customs Act without appraisal of his right to
the accused under Section 102 of the Customs Act would become suspect
and the conviction based on such search and seizure is liable to be set aside.
In these circumstances, the conviction and sentence recorded against the
appellant even under the provisions of the Customs Act is liable to be
quashed and set aside.
10. Apex Court in State of Punjab v. Baldev Singh [1999 (6) SCC 172]
though that judgment was rendered under the provisions of NDPS Act, held that
it is an obligation of the empowered officer and his duty before conducting the
search of the person of a suspect, on the basis of prior information, to inform the
suspect that he has the right to require his search being conducted in the pres-
ence of a Gazetted Officer or a Magistrate and that the failure to so inform the
suspect of his right, would render the search illegal because the suspect would
not be able to avail of the protection which is inbuilt in Section 50. This Court in
Yusuf Suleman’s case (supra) has held that the wording of sub-section (1) of Sec-
tion 102 is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act
which is held to be mandatory.
11. The provisions of Section 102 of the Customs Act, 1962 (“the said
Act”) accord a protection to the suspect prior to a search being taken under Sec-
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