2024:BHC-AS:46180 HARSH ADA H. SAWANT (P.A.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.526 OF 2002 Sudershan Laxman Teddu .. Applicant Versus Union of India and Ors. .. Respondents ....................

 Mr. Shashikant Chaudhari a/w. Ms. Snehal Chaudhari and Ms.

Anushka Banvilkar, Advocates for Applicant (appointed through legal Aid).

 Mr. Atul Surpande, Advocate for Respondent Nos.1 and 2 – Union of India.

 Ms. Dhanalakshmi S. Krishnaiyer, APP for Respondent No.3 – State of Maharashtra.

 Mr. Anant Dabhokar, Officer of Respondent No.1 – Union of India.

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CORAM : MILIND N. JADHAV, J.

DATE : NOVEMBER 25, 2024 ORAL JUDGEMENT :

1. Heard Mr. Chaudhari, learned Advocate for Applicant; Mr. Surpande, learned empanelled Counsel / Advocate for Respondent Nos.1 and 2 – Union of India and Dr. Krishnaiyer, learned APP for Respondent No.3 – State of Maharashtra.

2. This Revision Application is challenging the order dated 01.10.2002 passed by the Sessions Judge in Criminal Appeal No.289 of 2001 upholding order of conviction of Applicant for offences committed under Section 135(1)(b) read with Section 13(1)(i) of the Customs Act, 1962 (for short ‘the Customs Act’); under Section 8(1) read with Section 85(1)(2) of the Gold (Control) Act, 1968. By order dated 20.08.2019, Mr. Chaudhari, learned Advocate and Counsel practising at the Bar was appointed by this Court to represent and espouse the cause of the Applicant. Accused shall be referred to as Applicant for convenience. Though there are two concurrent orders of conviction, the present Revision raises an important issue of law pertaining to the power of the enforcement agency in conducting search and seizure under the Customs Act.

3. The relevant facts necessary for adjudication of the present Revision are as under:-

3.1. Briefly stated prosecution case is that on 10.11.1989 on some information / tip received by the Custom Officers, a secret watch was kept near the bus stop at Foras Road in Mumbai where they noticed the arrival of Applicant on motorcycle. He parked his motorcycle and went into a shop and returned back thereafter when he was apprehended for possession of gold bars and taken to the Customs Office situated at Marine Lines, Mumbai for recording panchnama. On personal search of accused, he was found in possession of one packet containing 4 gold bars of 10 tolas each collectively valued at Rs. 1,44,000/- at that time. Accused did not give a satisfactory explanation for possession of the gold bars, hence it was seized. Panchnama was recorded in the Customs Office along with statement of accused under Section 108 of the Customs Act. Undoubtedly this was a confessional statement of accused which was recorded. It was defence of accused that the gold bars were given to him by one Mr. Rajesh at Grant Road for delivering the same to one Mr. Kirti who was to come near the bus stop, but the same was not investigated further by the prosecution or even considered by the Trial Court. Admittedly this gold bar below Exhibit-P4 is not the gold bar which was seized from the Applicant as it did not bear the endorsement and signature of the panchas – witnesses on it. The seized gold bar is not produced by prosecution in trial. Hence whether the prosecution has proved its case beyond all reasonable doubts and adequately identified seized sample gold bar in the present case is argued by Mr. Chaudhari on behalf of Applicant to maintain challenge to the twin judgements. Apart from challenging the procedure adopted by prosecution for search and seizure, the aforesaid question is agitated and argued on behalf of Applicant.

4. Mr. Chaudhari draws my attention to the twin judgements of the Courts below and would at the outset submit that they suffer from deciding an inherent legal issue as to whether prosecution complied with the statutory procedure of search and seizure in the present case in accordance with law. He would submit that