IMPORTANT POINT
 The prosecution against the appellant Custom Officer for murdering a smuggler is absolutely illegal and is liable to be quashed. In fact the appellant deserves praise for his valour in the performance of duty at the risk of his life. The C.B.I. has made hurried investigation with bias.

JUDGMENT

Hansaria J.-A valiant and dutiful custom officer risked his life to fight the mighty under-world of smugglers; unarmed and single-handedly. And see ! he succeeded after hot chase on his motorcycle - smuggler being in a car. The result was smuggling of gold worth Rs. 8 crores was prevented. The reward? He has been made to face a prosecution under Section 302 of the IPC at the behest of the CBI, who is brought hurriedly and for undisclosed reasons to investigate, inasmuch as in the scuffle which had taken place between the appellant-official and the suspected smuggler, during the course of which a big-sized knife (dagger) carried by the run away was used, the smuggler died, because of the injuries sustained at the hand of the appellant, who had as many as 22 injuries on his person.

2. The CBI says the injuries were self-inflicted. The CBI has taken this stand because, according to it, the appellant had an ulterior motive in killing the deceased, which was to share reward relating to recovery of smuggled gold worth Rs. 28 lacs. The reward had, however, become due in 1984 and the present occurrence had taken place on 16.5.1991. How far-fetched is the imputed motive ? The High Court itself has disbelieved this and has really criticised the CBI for suggested the same. This is, however not all. As the further case of the CBI is that no records were placed before it to show that the appellant had prior information of smuggling, following which the smuggler was chased. Another material used against the appellant is, his so-called abscondence.

3. None of the aforesaid has legs to stand, as would appear from what is being stated later. A biased investigation of the type at hand from the CBI has indeed pained us, because people of this country has still high hopes from it, which would get dashed if bias creeps in its investigation. But then, the deceased was no ordinary mortal, as he was a brother of one time Chief Minister of Goa; and the occurrence had taken place in Goa.

4. What finds the appellant before this Court is denial of the protection made available by Section 155 of the Customs Act, 1962 (the Act). That section has provided:

"Section 155. Protection of action under the Act. - (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.

(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month s previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause.

5. As Section 155 has nexus with performance of official act, let it be seen what has been empowered by the Act on a person like the appellant. This is spelt out by Section 106 of the Act reading as below :

"Section 106. Power to stop and search conveyances. - (1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessal in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and -

(a) rummage and search any part of the aircraft, vehicle or vessel;

(b) examine and search any goods in the aircraft, vehicle or vessel or on the animal;

(c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld.

(2) Where for the purpose of sub-section (1) -

(a) it become