Full Judgment Text
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PETITIONER:
HARI CHAND & ANR.
Vs.
RESPONDENT:
STATE OF DELHI
DATE OF JUDGMENT: 12/02/1996
BENCH:
MAJMUDAR S.B. (J)
BENCH:
MAJMUDAR S.B. (J)
ANAND, A.S. (J)
CITATION:
1996 AIR 1477 JT 1996 (2) 140
1996 SCALE (2)16
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
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
regard ? 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 criticized the CBI for
suggesting 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
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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.
(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 purposes of sub-section (1) -
(a) it becomes necessary to stop
any vessel or compel any aircraft
to land, it shall be lawful for any
vessel or aircraft in the service
of the Government while flying her
proper flag and any authority
authorized in this behalf by the
Central Government to summon such
vessel to stop or the aircraft to
land, by means of an international
signal, code or other recognized
means, and thereupon such vessel
shall forthwith stop or such
aircraft shall forthwith land; and
if it fails to do so, chase may be
given thereto by any vessel or
aircraft as aforesaid and if after
a gun is fired as a signal the
vessel fails to stop or the
aircraft fails to land, it may be
fired upon;
(b) it becomes necessary to stop
any vehicle or animal, the proper
officer may use all lawful means
for stopping it, and where such
means fail, the vehicle or animal
may be fired upon."
4. What finds the appellant before this Court is denial of
the protection made available by section 155 of the Custom
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
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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 vessel 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 -
6. Let it be seen why the protection of section 155 has
been denied and why CBI insists that this section has no
operation. The first premise of denial is that there is no
material to show if the appellant was really engaged in any
official work inasmuch as there is no writing showing prior
information relating to attempted smuggling. This, however,
is an obvious untenable stand inasmuch as from the impugned
order it is clear that on the day of occurrence itself it
was told within a few hours to the local police, which had
come at the scene around 2 p.m. while the * was around 12.30
p.m., that the appellant had been working "on some tip-off
about smuggling of gold". In this connection Shri Bobde
appearing for the appellant, has drawn our attention to a
complaint filed in the Court of Chief Judicial Magistrate,
Margo, being subject matter of Criminal Case No.1/C/94/A by
the Union of India through the Assistant Collector of
Customs (P), Marmagao, against 8 accused persons in which
there is a clear statement in para 3 that pursuant to
information received by the Custom Department in May, 1991
regarding the landing of contraband gold, the Custom
Officer, Shri Costao Fernandes, the appellant herein, was
keeping vigilance of the said area. The further averment in
paragraph 4 is that about 11 a.m. Shri Costao received
information regarding some movement sufficient to suspect
landing of gold and whereupon he immediately rushed to the
site.
7. Addl. Solicitor General, Shri Altaf Ahmad, submits that
this is the stand of Union of India through its Custom
Department in some other case, whereas in the present case
the CBI could not be satisfied during investigation about
any such prior information. The mildest observation we would
make in this context is that the CBI has exposed inasmuch as
the Department’s stand relating to prior information has not
found place for the first time in the complaint, but was so
mentioned on 16th May, 1991 itself, and within few hours, by
one Shri L.R. Naik. Superintendent of Custom, Revenue
Intelligence, Marmagoa, who informed about the same to
P.S.I. Mohan Naik who was the police officer who had
received the telephone call at about 1.10 p.m. of 16th from
Head constable, R.G. Prabhu giving the information that
brother of Churchill Alemao (who was once a Chief Minister
of Goa) has been murdered. This shows that the Custom
Department had not cooked up this story subsequently.
8. To boost up is case, the CBI has further stated that
after the occurrence the appellant was not available for two
days, i.e. he was absconding, which shows his guilty mind.
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It is true that the appellant had surrendered before the
police on 18th, but that was because he became mortally
afraid of his life after what had happened on 16th; and so,
surrender before the police was to seek protection. Where is
the guilty mind then ?
9. Coming to the case of self-infliction wounds, the same
is sought to be brought home by the Addl. Solicitor General
by referring to the "Hurt Certificate", which has noted that
on the appellant being examined on 18th May, 22 injuries
were found on his person. The learned counsel refers us to
column 5 of this certificate dealing with "Duration of each
hurt" and submits that as the duration was of 24 hours, the
same would show that the injuries were received on 17th, and
not on 16th. This establishes a case of self-infliction of
injuries, contends the counsel. He, however, missed the mark
"7" put before 24 hours, which shows that the time was more
than 24 hours. So, this part of CBI’s case also falls to the
ground.
10. Faced with the position that the wounds were not self
inflicted and the killing could have been, indeed was, in
self-defence, the submission is that protection of section
155, nonetheless, is not available because killing of a
smuggler is not a part of the official duty, which alone is
protected by this section. It is laboured hard to impress
that the official duty, in the present case, was confined to
stop the movement of the vehicle and no farther. After the
vehicle was got stopped, the submission is, that the act in
performance of official duty was over and the appellant
could not have scuffled with the deceased leading to the
latter’s death. We cannot agree inasmuch as on 16th itself
it was stated at the spot by some watchenrs to the police
officer who came there that the appellant was "trying to
grab the ignition key" of the vehicle which was being driven
by the deceased. This shows that the appellant was trying to
prevent the mobility of the vehicle. If while engaged in
such an act, the appellant was assaulted, and 22 times at
that, with an instrument like knife causing bruises,
abrasions, incised wounds on various parts of body like
cheek, chest, back, shoulder, arm, leg and thigh, he could
not have allowed himself to be killed, but had to defend
himself by retaliation. The killing was thus not divorced
from the performance of the duty enjoined by section 106 of
the Act.
11. Shri Bobde has brought to our notice in this connection
the decision of this Court in Bhappi Sen vs. Rampal Sen,
1981 (Supp.) SCC 12 in which protection of Section 108 of
the Gold (Control) Act, 1968, which is in pari materia with
section 155 of the Act, was made available to custom
officials who had fired at the inmates of a raided jewellery
shop causing gun shot wounds to the son of the appellant,
which had been done as three persons of the custom party had
received head injuries caused by blunt weapon. The learned
counsel submits that the same view merits to be taken in
this case. Addl. Solicitor General, however, urges that the
observation made by the Court in paragraph 7 shows that it
did not fully approve the quashing of the complaint by the
High Court by giving the benefit of section 108. But, the
relevance and importance of the judgment is that protection
of section 108 was not denied even when, while engaged in
duty of search, bodily harm had been caused to the other
side, when the same had become necessary in self-defence.
12. Addl. Solicitor General has another submission to make.
The same is that being faced with an organized under-world
of smugglers, the appellant should have remembered that
"discretion is the best part of valor". If the appellant
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would have done so, he would have perhaps saved his skin,
but could not have saved the larger interest of the society
and nation, which does lie in preventing smuggling. The
appellant showed valor not in taking to heels, but in
fighting. We have all praise for such an officer and we
would not allow him to he prosecuted, much though the
smugglers would want it to be so. Indeed the appellant is
being persecuted, not prosecuted, as the action smacks of
revenge seeking to take his life because he has taken the
life of a smuggler; of course, one close to political high
ups of Goa. Let this not be countenanced. Let this head-
hunting be not permitted.
13. The prosecution against the appellant is, therefore,
quashed. The appeal stands allowed accordingly.