COSTAO FERNANDES Vs. STATE AT THE INSTANCE OF DEPUTY SUPERINTENDENT OF POLICE CENTRAL BUREAU OF INVESTIGATION BOMBAY

JUDGEMENT

(1.) While respectfully agreeing with the judgment of any learned brother, I intend to add as follows :

(2.) In my view, such contention should not be accepted. The very purpose of Section 106 of the Customs Act in stopping the conveyance and searching the same when it was reasonably believed by a Customs Officer that such conveyance was or going to be involved in carrying out smuggling activities, will be frustrated if the Customs Officers, in the bonafide exercise of his powers and consequential duties as enjoined under Section 106 of the Customs Act is not permitted to take all consequential actions necessary for stopping the conveyance and conducting the search of such conveyance. If in course of a consequential action, it becomes necessary to immobilise the driver or occupant of a vehicle when without recourse of such action it was not possible to stop the vehicle, I fail to see any reason why the Customs Officer will not possess power and authority under Section 106 of the Act. It will not be correct to contend that the Customs Officer's power under Section 106 of the Act is confined only to immobilisation of the conveyance even when without which immobilisation, stopping of the conveyance cannot be effected. Sub-section (2) of Section 106 of he Customs Act authorises a competent Officer to fire upon animal, vehicle or aircraft for forcibly stopping the same. It will be only hypertechnical to contend that although in an attempt to immobilise an aircraft or a vehicle, the same may be fired upon and by such process serious damage to the air craft or the vehicle may be caused which may lead to loss of life of the pilot or driver together with occupants of the concerned conveyance, an action in injuring the driver or the occupant of the vehicle in an attempt to immobilise the vehicle is beyond the scope and ambit of Section 106.

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