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Assistant Collector of Central Excise Vs. Wilfred Sebastian and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCrl. Appeal No. 291 of 1980
Judge
Reported in1983LC47D(Kerala); 1983(12)ELT122(Ker)
ActsCustoms Act, 1962 - Sections 105, 111, 123, 135 and 152; Evidence Act - Sections 24 and 30; Code of Criminal Procedure (CrPC) , 1898 - Sections 103 and 165
AppellantAssistant Collector of Central Excise
RespondentWilfred Sebastian and ors.
Appellant AdvocateAdditional Central Government Standing Counsel
Respondent Advocate Rajasekharan Nair,; Ravi John and; P. Gopalakrishnan Nai
DispositionAppeal allowed
Cases ReferredState of Maharashtra v. Natwarlal
Excerpt:
.....to produce the authorisation issued by the assistant collector, and in view of the fact that the search was illegal the presumption under section 123 of the act will not apply to the case, acquitted the accused. alasserry mohammed (air 1978 sc 933), the supreme court negatived a plea that a failure on the part of the food inspector to comply with strictly the statutory provisions would vitiate the trial and conviction of the respondent. if the search was illegal it gives a good defence to the person whose house or premises was searched to resist the same and the court will have to examine carefully the evidence regarding seizure. the counsel for the appellant pointed out that some of the statements made by the accused constituted confession and some others clearly contained admission..........of the provisions of sections 103 165 etc. of the code of criminal procedure and the consequent illegal search will vitiate the entire seizure of the articles, the supreme court, observed :so far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. it may be that where the provisions of ss. 103 and 165, code of criminal procedure are contravened the search could be resisted by the person whose premises are sought to be searched. it may also be that because of the illegality of the search the court may be inclined to examine carefully the evidence regarding the seizure. but beyond these two consequences no further consequence ensues'.in shyam lal v. state of madhya.....
Judgment:

S.K. Kader, J.

1. The important question that arises for determination in this criminal appeal, filed by the Assistant Collector of Central Excise, is whether the illegality of a search conducted under Section 105 of the Customs Act, 52 of 1962, hereinafter referred to as the Act, will vitiate the seizure of the articles and the consequent trial of the case.

2. On a complaint filed by the Assistant Collector of Central Excise of the Integrated Divisional Office, Trivandrum, ten accused, including the respondents herein-who are respectively accused Nos. 1, 2 to 4 and 9, were tried by the Additional Judicial Magistrate of the First Class, Trivandrum, for an offence punishable under Section 135 of the Act, on the allegation that they acquired possession of the following articles of foreign origin, viz., (1) Cabin-All 8' Cinema Projector. SI. No. 128323-Made in Japan; (2) Car Casette stereo player kasuga Model K.C. 9316-Made in Japan; (3) Casette car stereo with AM. Radio-Model No. NR. 201A-S1. No. 0397-2.F-Made in Japan; and (4) Two motor cycles-Suzuki-Made in Japan, with the knowledge that these articles are liable for confiscation under Section 111 of the Act. It was in the course of a search conducted in the house of accused Nos. 2 and 3 on 24-2-1975 between 2.30 and 3.30 p.m. by PW1, Superintendent of Central Excise and other officers that articles Nos. 1 to 3 described above were recovered. The sons of accused Nos. 2 and 3 were present at the time of the search, and, when questioned about the contraband articles secreted in the house they produced the abovesaid articles which were seized under a mahazar, Ext. PI, attested by witnesses, on the reasonable belief that they were liable for confiscation under Section 111 of the Act. Ext. P 2, the statement of Joseph Gladstone, one of the sons present, was recorded. On the same day PW7, Superintendent of Central Excise, searched the house of accused No. 4 in the presence of accused No. 4 and recovered the motor cycles described as item No. 4, from a thatched shed on the western side of the house. The motor cycles were seized under a mahazar, Ext. P8, attested by accused No. 4 and Ors.. The statement of accused No. 4, was recorded by PW1. PW1 questioned accused Nos. 1, 2 and 3 and recorded their statements. Ext. P4 is the statement given by accused No. 1. Ext. P3 in the statement of accused No. 4, Ext. P5 is the statement of accused No. 3 and Ext. P6 the statement of accused No. 2. Accused No. 9, who is the brother of accused No. 1, also was questioned by PW1, who recorded his statement, Ext. P7.

3. Accused Nos. 5 to 8 and 10 were absconding and therefore the case against them was split up and the case against the remaining accused were proceeded with.

4. The plea of the accused persons were one of complete denial and they had no witness to be examined, although Exts. Bl to B3 were marked on their side.

5. The learned Magistrate, holding that the search conducted was illegal as the prosecution failed to produce the authorisation issued by the Assistant Collector, and in view of the fact that the search was illegal the presumption under Section 123 of the Act will not apply to the case, acquitted the accused.

6. This order of acquittal is strongly assailed by the learned Additional Central Government Standing Counsel appearing for the appellant on the ground that the trial court seriously erred in overlooking the fact that under Section 152(b) of the Act any power exercisable by an Assistant Collector of Customs under the Act is exercisable also by a gazetted officer of Customs empowered in this behalf by the 'Board, that the Board has already issued a notification in the Gazette empowering all gazetted officers of Customs to exercise any power exercisable by any Assistant Collector of Customs, that even if the notification was not produced the Court should have taken judicial notice of it, and that even if, without admitting, it is assumed for the sake of argument that the search was illegal, the trial court committed a grievous error by throwing out the entire case without duly considering the evidence regarding the actual seizure as the illegality of the search will not vitiate the trial or the articles seized. It was also argued that the trial court also erred in not applying the presumptions available under Section 123 of the Act. Stressing these points the counsel submitted that as the acquittal was solely on the ground of illegality of search, the order of acquittal should be set aside and the case sent back to the trial court for disposal afresh according to law applying the correct principles of law in the matter of search.

7. It would appear that it was mainly on the ground that the search was illegal that the whole case was thrown out by the trial court. The evidence relating to the seizure or recovery of the alleged contraband articles has also not been duly analysed and independently considered by the trial court. Although there is the evidence of other witnesses in the case, that the authorisation issued by the Assistant Collector for conducting the search was shown to the sons of accused Nos. 2 and 3 and accused No. 4 at the time of the search, this authorisation has not been produced in court. It cannot be said for certain that the authorisation of the nature referred to is one which could be taken judicial notice of. Counsel for the appellant submitted that this authorisation was unnecessary as these officers who conducted the search had already been empowered under Section 152(b) of the Act by the Board by the issue of a notification published in the Gazette, and that this is a notification of which the court could have taken judicial notice of. The notification referred to above is said to be a general notification and not a notification authorising or empowering any particular individual. The existence of such a notification does not seem, to have been brought to the notice of the trial court.

8. It is not the correct law that illegality or irregularity committed in conducting a search or in the course of a search will vitiate the seizure of the articles and the subsequent trial of the case. There is the authoritative pronouncement of the Supreme Court on this point, in Radhakrishnan v. State of U.P. (AIR 1963 S.C. 882). While considering whether the contravention of the provisions of Sections 103 165 etc. of the Code of Criminal Procedure and the consequent illegal search will vitiate the entire seizure of the articles, the Supreme Court, observed :

So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Ss. 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues'.

In Shyam Lal v. State of Madhya Pradesh (AIR 1972 S.C. 886), the Supreme Court observed that even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases to have any application out to the subsequent steps in the investigation. In a still later decision in State of Kerala v. Alasserry Mohammed (AIR 1978 SC 933), the Supreme Court negatived a plea that a failure on the part of the Food Inspector to comply with strictly the statutory provisions would vitiate the trial and conviction of the respondent. These decisions were referred to and approved by the Supreme Court in a recent case, State of Maharashtra v. Natwarlal (AIR 1980 SC 593). In that case while dealing with the same question the Supreme Court observed :

'Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs'.

7. It is therefore now fairly settled that illegality of a search will not affect the validity of the seizure of the articles, or in any way vitiate the recovery of the articles and the subsequent trial. If the search was illegal it gives a good defence to the person whose house or premises was searched to resist the same and the Court will have to examine carefully the evidence regarding seizure. If after such an examination the evidence regarding the seizure of the articles is found to be satisfactory and acceptable, it will not be in the interests of justice to ignore altogether that evidence, particularly in economic and anti-social crimes. Smuggling of foreign articles to India will no doubt effect the public primarily and the financial stability of the country. The expression acquired possession, used in Section 135 of the Act is of very wide amplitude and will include the acquisition of possession by a person in a capacity other than as owner or purchaser. As regards the application of Section 123, on doubt, the initial burden of proving that the accused acquired the contraband articles is cast on the prosecution. As already stated, the illegality of search by itself cannot and will not vitiate the seizure of the articles. If in spite of the fact that search was illegal, the evidence regarding seizure of the contraband articles is found to be acceptable, there is no reason why Section 123 of the Act should not be invoked.

9. Although it is not seriously disputed that it was mainly on the ground of illegality of search that the accused were acquitted, the counsel appearing for the fourth accused submitted that there is absolutely no evidence against his client, that, the trial court has found his client not guilty of the offence, and therefore, the order of acquittal of the fourth accused must be upheld.

10. On going through the judgment, as a whole, I find there is considerable force in the contention raised by the counsel for the appellant that in acquitting the accused the trial court has been mainly or greatly influenced by its finding that search was illegal and that whatever evidence the trial court has considered has been vitiated on account of this approach. In these circumstances, I refrain from reappraising the evidence regarding the search and the consequent seizure or recovery of contrabaned articles. The counsel for the appellant pointed out that some of the statements made by the accused constituted confession and some others clearly contained admission of incriminating facts and that none of these statements has been considered by the trial court. No doubt these statements made to the Customs Officers are admissible in evidence unless these statements are hit by Section 24 of the Evidence Act. No objection of any sort is seen taken against marking of these statements before the trial Court. Before acting on a confession the Court has to satisfy that it is voluntary and true. But how far these statements can be relied on for entering a conviction is for the trial court to decide depending upon the facts and circumstances of the case. An admission of confession made by a co-accused can be made use of only as permitted by Section 30 of the Evidence Act. The evidence of the Customs Officers has to be properly evaluated after a careful scrutiny, and cannot be discarded or ignored merely on the ground that they are Customs Officers.

In the result, this appeal is allowed, the order of acquittal is set aside and the whole case is sent back to the trial court for disposal afresh according to law and in the light of this judgment from the stage of defence, as expeditiously as possible. The accused, if they so desire, will be entitled to let in evidence, if any, in support of their plea.


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