Page 315 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SUBJECT INDEX 961
Prosecution (Contd.)
respondent’s business interests also being jeopardized, as a result of his
continued stay in India - Chief Metropolitan Magistrate permitted the
respondent to travel abroad, subject to certain conditions - Details of
address of respondent, during his stay in Dubai, as well as details of his
authorized Counsel in India already provided by him in accordance with
the directions - Respondent not required any more for the purpose of
investigation, and requisite examination of the respondent already
conducted - Resultantly, respondent permitted to travel abroad for a
period of two months - However, respondent directed to register his
presence in the Indian Embassy at Dubai every 10 days — Directorate of
Revenue Intelligence v. Mohammed Nashruddin (Del.) .................... 364
— Gold smuggling, lack of evidence - Illegal search - Acquittal of accused,
sustainability - No evidence adduced by Revenue 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 Magistrate or a Gazetted Officer of Customs for causing
his search in their presence - Settled in catena of decisions under
aforesaid provision and under similar 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 -
Notwithstanding, 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
— Union of India v. Jasmine Jayantilal Thadeshwar (Bom.) ................. 817
— of offence under Money Laundering Act, scope of investigations and trial
- See under PREVENTION OF MONEY LAUNDERING ACT, 2002
(PMLA) ....................................... 209
— Offence - Export obligation not fulfilled, whether an offence -
Contravention of condition of imprest licence - Charges framed not
containing any charge of forgery but only that respondents failed to fulfil
export obligations under licence issued - Accused contending that failure
to comply with export obligation due to certain unavoidable
circumstances and export obligations fulfilled within extension of time
granted - Acquittal on the ground that prosecution had failed to prove its
case - Conclusion of Trial Court not illegal or improper or contrary to law
and in terms with weight of evidence - Order not interfered with -
Section 5 of Imports and Exports (Control) Act, 1947 — Union of India v.
Hukmichand Jain (Bom.) ................................. 524
EXCISE LAW TIMES  15th June 2020  315