UNION OF INDIA Vs. DASANG BHUTIA

JUDGEMENT

(1.) The Court of the Learned Chief Judicial Magistrate (hereinafter, "CJM"), East and North Sikkim, at Gangtok, vide its impugned Order dtd. 9/10/2019, in Prosecution Report Case No.01/2017, discharged the Respondent/Accused, Dasang Bhutia, (hereinafter, "Respondent") of the offences under Sec. 135(1) (a) and (b) of the Customs Act, 1962 (for short, "Customs Act") on consideration of the facts, provisions of law and the evidence brought forth, concluding that no case was made out against the Respondent to warrant his conviction for the offences under the aforementioned provisions of the Customs Act. Aggrieved thereof, the Petitioner/Complainant (hereinafter "Petitioner") is before this Court urging that the Learned Trial Court erred in its conclusion and erroneously discharged the Respondent.

(2.) (i). To appreciate the matter in its correct perspective it is essential to briefly lay down the facts of the case. The Petitioner lodged a Complaint before the Court of Learned CJM in Prosecution Report Case No.01/2017 under Sec. 135(1) (a) and (b) and Sec. 137(1) of the Customs Act, stating that the Petitioner, (Superintendent of Customs, Sherathang Land Customs Station, Gangtok under Siliguri Commissionerate), on receipt of information from the Sikkim Police on 17/11/2015, accompanied by Customs Officers of Gangtok Customs and two witnesses went to the Sadar Police Station, Gangtok at about 14.00 hours. At the Police Station (P.S.) they learned that as per GD Entry No.34, dtd. 16/11/2015, the team of Police Personnel posted at Sherathang P.S. with the assistance of the Indo Tibetan Border Police (ITBP) stationed at Nathula, acting on a tip off, conducted a body search of traders and a search of vehicles inbound from Rinchenghang, Tibetan Autonomous Region (TAR), China to India at Nathula Gate. On a search of the "Toyota Fortuner", vehicle bearing registration No.SK-01-PA-6314 and its owner-cum-driver, the Respondent, one piece of yellow metal believed to be gold, weighing approximately one kilogram in weight was found concealed in the inner pocket of the right side of his trousers and duly recovered. The Respondent failed to furnish any valid documents to establish legitimate possession of the article which appeared to be smuggled from TAR, China and was later found to be valued at Rs.51,00,000.00 (Rupees fifty one lakhs) only. At about 17.00 hours on 16/11/2015, the Station House Officer (SHO), Sherathang P.S., Police Inspector (PI) Novin Rai seized the said gold bar bearing the marking AS30361 "VALCAMBI SUISSE 1 KILO FINE GOLD, 999.9" and the vehicle of the Respondent vide seizure memo dtd. 16/11/2015, under Sec. 102 of the Cr.P.C, in the presence of witnesses Sub Inspector (SI) Roshan Gurung of the Special Branch and Woman Constable (WCT) Bindhya Rai, Sikkim Police. The Respondent was then detained and brought to the Sadar P.S., Gangtok. On the same day in a related incident a truck driven by one Ms. Nim Lhamu Sherpa was intercepted and five pieces of gold bar weighing five kilograms were found concealed under the driver's seat. As both the cases involved illegal import of gold, the SHO, Sherathang P.S. informed the Customs Officials and made over to them the Respondent, all the gold bars recovered and the seized Toyota Fortuner by preparing a "Handing-Taking" Memo dtd. 17/11/2015 at 14.40 hours, at the Sadar P.S., in the presence of the Sub-Divisional Magistrate, Gangtok and Police Officers. The gold seized from the Respondent was tested by two independent licensed jewelers of Gangtok who concluded that the yellow metal bar was a 24 carat Gold bar. The Respondent on preliminary enquiry admitted that he had brought the gold from Rinchenghang, TAR, which was accordingly seized and sealed by the SHO, Sherathang P.S. As the gold was clandestinely smuggled into India it was thus liable for confiscation under Sec. 111 of the Customs Act and accordingly seized under Sec. 110(1) of the Customs Act on 17/11/2015, in the presence of the Respondent, the Sub-Divisional Magistrate, Gangtok and other Officials. A proper "Panchnama" was prepared thereafter. Due to paucity of time the statement of the Respondent could not be recorded but he was arrested under Sec. 104 of the Customs Act at 5.00 p.m. on 17/11/2015 and produced before the Court of Learned CJM, from where he was enlarged on bail on the same date.

(3.) (i). Walking this Court briefly through the facts of the case as stated supra, Learned Counsel for the Petitioner advancing his arguments reiterated that the prime witnesses viz. Constable Ranjeet Patel, ITBP, SI Roshan Gurung, and WCT Bindhya Rai, who were present at the spot proved recovery of the gold bar from the Respondent when their statements under Sec. 108 of the Customs Act were recorded. It was urged that the Learned Trial Court however, failed to appreciate that the cross-examination of the witnesses failed to decimate the evidence of the seizure of the gold bar. That, there was an error in interpreting the provisions of Sec. 102 of the Customs Act which specifically empowers a "Proper Officer" to search the specific person against whom information regarding illegal possession of articles is received. It does not involve a random search of any person, by any Customs Official who not is empowered to conduct such a search. The Learned Trial Court also failed to appreciate that the seizure was conducted by Police Personnel and hence the question of invocation of the provisions of Sec. 102 of the Customs Act did not arise. The Learned Trial Court also failed to consider that there was a prima facie case in terms of the evidence furnished by the Petitioner to frame charges against the Respondent. The Learned Trial Court erroneously concluded that Customs Officials were present at the spot who failed to take steps as envisaged by Sec. 102 of the Customs Act. That, the Learned Trial Court doubted the Prosecution case on grounds that the Petitioner himself was not present at the spot when the alleged search and seizure took place. It was further argued that although SI Roshan Gurung, Petitioner's Witness turned hostile but under cross-examination he admitted that the number inscribed in the gold bar, M.O.I, matched the details recorded in the Seizure Memo Exhibit 2.