Page 145 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] UNION OF INDIA v. JASMINE JAYANTILAL THADESHWAR 823

“32. We also feel that though Section 50 gives an option to the empowered
officer to take such person (suspect) either before the nearest gazetted of-
ficer or the Magistrate but in order to impart authenticity, transparency and
creditworthiness to the entire proceedings, in the first instance, an endeav-
our should be to produce the suspect before the nearest Magistrate, who en-
joys more confidence of the common man compared to any other officer. It
would not only add legitimacy to the search proceedings, it may verily
strengthen the prosecution as well.”
13. In Customs v. Mohammad Bagoui - Crl. L.P. No. 284/2011, dated 25-
11-2011 [2012 (275) E.L.T. 513 (Del.)], also it was held that, the compliance with
the procedural safeguards contained in Sec. 50 of NDPS Act, is intended to pro-
tect a person against false accusation and frivolous charges, as also to lend cred-
itability to the search and seizure conducted by the empowered officer. The
search before a Gazetted Officer or a Magistrate would impart much more au-
thenticity and credit worthiness to the search and seizure proceeding and it
would also strengthen the prosecution case. But if the search is carried out by the
Gazetted officer belonging to a department which is effecting a seizure, he may
have bias in favour of the department, whereas no bias can be attributed to a
Magistrate or a Gazetted Officer belonging to another department. Associating a
Gazetted Officer with the raiding party makes such officer impliedly interested
in the success of the raid. Para 24 of Mohammad Bagour (supra) reads as under :
“24. The Trial Judge has recorded that notice Ex PW5/B served upon the
respondents/accused was not in compliance of provisions of Section 50 of
NDPS Act, as it was partial notice and as the respondents/accused had of-
fered to be searched in the presence of a Gazetted Officer of a customs be-
sides a Magistrate. The purpose behind Section 50(1) NDPS Act, is to avoid
criticism of arbitrary and high handed action against authorised officer. It
has to be borne in mind that a Gazetted officer belonging to the department
which is effecting a seizure may have bias in favour of the department,
whereas no such bias can be attributed to a Magistrate or a Gazetted Officer
belonging to the other department. Thus, associating a Gazetted Officer
with the raiding party makes such officer impliedly interested in the suc-
cess of the raid. “
14. None of the witnesses P.W.-1 to P.W.-3 say anything about having
appraised accused of his right and asked whether he wanted to get his personal
search in the presence of a Gazetted Officer or a Magistrate. Therefore, on this
ground alone, the search of the person of accused or seizure of gold has to be
held as illegal.
15. From the evidence of P.W.-3 - Jayesh Shrisat, it appears that pan-
chnama of 9 pieces of gold weighing around 504 grams was prepared and the
panchnama is at Exhibit P-10. Panch witnesses have not been produced to testify.
The prosecution, therefore, relies on the evidence of PW.-3. In the cross-
examination of PW.-3 it appears that 9 pieces of gold recovered from accused
were not gold bars, but they were pieces of different sizes and there was no
marking on the pieces. Therefore, the onus is on the prosecution to prove that
what was seized from the possession of accused, was contraband gold. The pros-
ecution has not led any evidence to prove that the said 9 pieces of gold were pre-
pared or manufactured from smuggled foreign marked gold of foreign origin.
The prosecution relies upon the statement of accused recorded under Section 108
of the Customs Act. The prosecution also relies on the assay reports of analysis to
EXCISE LAW TIMES  15th June 2020  145