Calcutta High Court (Appellete Side)
Mithu Saha vs The Union Of India on 10 February, 2023
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
CRR 1256 of 2010
MITHU SAHA
VS.
THE UNION OF INDIA
For the Petitioner : Mr. Sandipan Ganguly, Sr. Adv.
Ms. Manaswita Mukherjee, Adv.
For the State : Mr. Bidyut Kr. Roy, Adv.
Hearing concluded on : 7th February, 2023
Judgement on : 10th February, 2023
Siddhartha Roy Chowdhury, J.:
1. This criminal revision challenges the judgement and order passed by learned Additional Sessions Judge, 5th Fast Track Court, Malda in Criminal Appeal No. 3 of 2009 affirming thereby the judgement and order dated 26th February, 2009 passed by learned Chief Judicial Magistrate, Malda in Case No. 1140-C/96 (T.R. No. 81/2000).
2. Briefly stated, on 27th September, 1996 the Officer-in-charge of Kaliachak Police Station had been to Sujapur to work out a secret information, accompanied by S.I. D.K. Jha, Constable Hiren Sarkar, constable Murari Ram Mondal and one N.V.F. They intercepted one man who alighted from one Maxi-taxi and took him to Sujapur Police camp. The said person confessed that he had in his possession five 2 gold biscuits and brought out five gold biscuits from his rectum. Officer-in-charge P.K. Dutta seized those gold biscuits in presence of witnesses under a seizure list and came back to police station, lodged G.D. Entry being Kaliachak Police Station General Diary No. 765 dated 28th September, 1996 and the gold biscuits were examined by a goldsmith. On 7th October, 1996, S.I. D.K. Jha handed over the gold biscuits to the Customs Authority in presence of the learned A.C.J.M. Malda and those biscuits were seized by the Customs Authority. After obtaining sanction from the appropriate authority a written complaint was filed before the Court by Mr. N.T. Sumpusu, Superintendent Kaliachak Customs, under Section 135 (1)(b)(i) of the Customs Act. The accused person stood the trial pleading his innocence. Prosecution examined 17 witnesses to crown success and learned Trial Court after considering the evidence laid by prosecution witnesses was pleased to record an order of conviction against the accused person. The convict made an unsuccessful attempt to get the order of conviction reversed by preferring an appeal being Criminal Appeal No. 3 of 2009.
3. Challenging the judgement impugned, Ms. Manaswita Mukherjee, learned Counsel representing the petitioner submits that the accused person admittedly was intercepted by police personnel and police seized the alleged gold biscuits from the possession of the accused person claiming to have been produced by him. Customs Act, 1962 being a Special Act, Police had no authority to conduct search and seizure under the general law as laid down under Section 102 of the 3 Cr.P.C. ignoring the provisions as laid down under chapter XIII of the Customs Act, 1962.
4. Drawing my attention to Section 102 of Customs Act, Ms. Mukherjee submits that under the said act, a right was given to the accused person to be searched before a gazetted officer of the Customs or before the Magistrate. But such right of the accused person was not disclosed to him by the police authority while conducting search and seizure under. Ms. Mukherjee further contended that even if the police authority can be said to have the power to seize the gold biscuits, it did not have the power to retain the same. Police ought to have given the same to the Customs Authority which in this case had not been done. On 28th September, 1996 alleged seizure was made by police and it was handed over to Customs Authority on 7th October, 1996. Ms. Mukherjee strenuously argued that according to the case of prosecution, the gold bars were seized from the possession of the accused person. But there is no explanation as to why the police took 10 days time to hand over the so called gold biscuits to the customs authority. No Malkhana register was produced to show that the gold biscuits were kept in the Malkhana of the police station during the aforesaid period of 10 days. After 9 months of alleged seizure, the samples were forwarded to expert for chemical examination on 3rd June, 1997 and there is no evidence as to where the alleged gold biscuits were kept or who was the custodian of the same to rule out the possibility of tampering with evidence. The prosecution claimed to have forwarded five samples of 4 4.5 gram each for chemical examination, but the laboratory only received one sample. Therefore, it can safely be said that prosecution has failed to prove that all the yellow metals seized allegedly from the possession of the accused person were gold. Ms. Mukherjee further contended that the chemical examination report has been admitted into evidence as Exhibit-4 but the chemical examiner was not brought to the witness box and thus the accused person did not get any opportunity to cross-examine the said expert. Therefore, learned Trial Court ought not to have read the report of chemical examiner into evidence. In absence of any opportunity being given to the defence counsel, the document could not have been admitted into evidence. The goldsmith, P.W. 16 stated that the yellow coloured metals were gold. But he was not brought to the witness box to face cross-examination. Therefore, his evidence as expert, as to the character of the yellow coloured metal is of no consequence. These issues were never considered by learned Trial Court.
5. Section 102 of the Customs Act says:-
"Section 102 in the Customs Act, 1962
102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate.--
(1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of the customs shall, if such person so requires take him without unnecessary delay to the nearest gazetted officer of customs or magistrate.
(2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate.5
(3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) Before making a search under the provisions of section 100 or section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(5) No female shall be searched by any one excepting a female."
6. The provision of Section 123 of the Customs Act has been taken into consideration by the learned Courts below. Section 123 of the Customs Act, 1962 says:-
"Section 123 in the Customs Act, 1962
123. Burden of proof in certain cases.--1[ (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be--
(a) in a case where such seizure is made from the possession of any person,--
(i) on the person from whose possession the goods were seized; and
(ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person;
(b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] 6 (2) This section shall apply to gold 2[and manufactures thereof] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify."
7. Section 123, upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in my humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter.
8. It goes without saying that "Generalia specialibus non derogant" is a maxim used for interpretation of statute which means general laws do not prevail over special law. When two provisions of law one being a general law and other being a special law governed a matter, in case of any repugnancy the prior special law cannot be presumed to be repealed by the later general law unless there is a clear intention to make a rule of universal application by superseding the earlier special law is evident from general law, then the later general law will prevail. When the later general law is repugnancy or inconsistency, the later special law will prevail over the earlier general law. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this 7 Special Act would amount to depriving an accused of his statutory right (See Nestle India Ltd. DLF & Anr. vs. State of West Bengal :
2022 SCC OnLine Cal 4166). In the same manner provision regarding search and seizure as laid down under Customs Act, 1962 has not been followed in this case and prosecution has been launched. On that score also the proceeding cannot be allowed to remain in force.
9. Therefore, the police officer who intercepted the accused person and claimed to have recovered gold biscuits was under obligation to inform the accused about his statutory right to get searched before the gazetted officer, but accused was deprived of such right and infraction was caused to statutory provision.
10. That apart, it is rightly argued by Ms. Mukherjee that the incriminating evidence, which was used against the accused person, was not put forth during his examination under Section 313 of the Code of Criminal Procedure and thereby giving him an opportunity to explain such incriminating circumstances. This is a serious lacuna and it speaks of a lack of fair play as well. Examination of accused under Section 313 of Code of Criminal Procedure is not a mere formality. The intention of the legislature is to give an opportunity to the accused person to explain the incriminating circumstances appearing against him in the evidence adduced by the prosecution witnesses. The examination of an accused under Section 313 of the Code of Criminal Procedure not only provides him with an opportunity to explain the incriminating circumstances, appearing 8 against him in the prosecution evidence, but such examination also gives him an opportunity to put forward his own explanation, if he so chooses, with regard to his involvement or otherwise, in the crime alleged against him. The examination under Section 313 of the Code of Criminal Procedure does have the nexus with the defence, which the accused may decide to bring if necessary. It is the mandatory obligation of the Court to hold a fair trial. Lack of opportunity to explain his position vis-à-vis incriminating evidence, to be used against him is definitely prejudicial to the interest of accused person. Therefore, without giving an opportunity to the accused person to explain the incriminating evidence, Court could not have used the same against the accused person to record an order of conviction.
11. Under such circumstances, in my humble opinion, the prosecution case cannot be said to have been proved beyond reasonable doubt. The impugned judgement passed by learned Appellate Court affirming the judgement passed by learned Chief Judicial Magistrate, Malda against the accused person suffers from infirmity and should be set aside, which I accordingly do.
12. Consequently, the appeal is accepted and allowed. The impugned judgement passed by learned Appellate Court is set aside. The accused person be set at liberty and be released from bail bond, upon execution of bond under Section 437A of Cr.P.C. The accused person, however, since is disowning the gold biscuits allegedly recovered from his possession, the same may be confiscated to the State. 9
13. Let a copy of this judgement along with lower Court record be sent to the learned Trial Court for information and necessary action.
14. Urgent certified copy of this judgement, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)