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PETITIONER: COSTAO FERNANDES

       Vs.

RESPONDENT: STATE AT THE INSTANCE OFD.S.P., CBI, BOMBAY

DATE OF JUDGMENT:       20/02/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 AIR 1383            JT 1996 (2)   519  1996 SCALE  (2)298

ACT:

HEADNOTE:

JUDGMENT:                     J U D G M E N T G.N.RAY.J.      While respectfully  agreeing with  the judgment of my learned brother, I intend to add as follows :-      Mr.  Altaf  Ahmed,  learned  Additional  Solicitor General appearing  for the respondent has very strongly contended that  even if  in the  facts of  the case, it becomes  apparent  that  the  appellant,  a  Preventive Officer of  the Customs  Department, on  the  basis  of source  information,   was  keeping   a  vigil  on  the apprehended smuggling activities and having located the deceased  speeding  away  with.  smuggled  goods  in  a contessa car  had chased  him in  his motor  cycle  and attempted to  stop the  vehicle but  he was resisted by the deceased driving the said car, the appellant is not entitled to  claim protection  against initiation  of a criminal trail  for causing  death of the driver of the vehicle under  Section 155  of the  Customs Act because under Section 106 of the Customs Act, he was authorised to take  such   course of  action as  was  confined  to stopping the vehicle and not beyond that. The learned Additional Solicitor General has submitted that if a  custom officer while attempting to stop a vehicle involved in  smuggling activities  had faced resistance from the  driver or  occupant of  the vehicle which had necessitated to  take action by way of right to private defence and by that process, the driver or the occupant had suffered  bodily injuries  which had  caused death, the concerned  officer cannot  claim protection  at the threshold in  stopping the criminal trial under Section 155 of  the Customs  Act. He  has to  face the criminal trial where  the  question  of  the  right  of  private defence, if raised, is to be considered in the light of the evidences to be adduced in the case.      In  my   view,  such   contention  should  not  be

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accepted. The  very  purpose  of  Section  106  of  the Customs Act  in stopping  the conveyance  and searching the same  when it  was reasonably believed by a Customs Officer  that  such  conveyance  was  or  going  to  be involved in  carrying out smuggling activities, will be frustrated if  the Customs  Officer, in  the bona  fide exercise of  his powers  and  consequential  duties  as enjoined under  Section 106  of the  Customs set is not permitted to  take all  consequential actions necessary for stopping  the conveyance  and conducting the search of such  conveyance. If  in course  of a  consequential action, it becomes necessary to immobilize the  driver or  occupant of  a vehicle  when without recourse  of such action it was not possible to stop the  vehicle, I  fail to  see any  reason why  the Customs Officer  will not  possess power  and authority under Section  106 of  the Customs Act to take recourse to such action for giving full effect to Section 106 of the Act.  It will  not be  correct to  contend that the Customs Officer’s power under Section 106 of the Act is confined only  to immobilization  of the conveyance and not of  the driver  or occupant  of the conveyance even when without  which  immobilization,  stopping  of  the conveyance cannot  be  effected.  Sub  Section  (2)  of Section 106  of the  Customs Act authorises a competent Officer to  fire upon  animal, vehicle  or aircraft for forcibly  stopping   the  same.   It   will   be   only hypertechnical to  contend that  although in an attempt to mobalise  an aircraft  or a vehicle, the same may be fired upon  and by  such process  serious damage to the aircraft or the vehicle may be caused which may lead to loss of  life of  the pilot  or  driver  together  with occupants of  the concerned  conveyance, an  action  in injuring the  driver or  the occupant of the vehicle in an attempt  to immobilize  the vehicle  is  beyond  the scope and ambit of Section 106.      It is,  however, necessary  to indicate  a note of caution in  the matter  of consideration  of protection against criminal  liability if sought for under Section 155 of the Customs Act at the threshold of the Criminal trial. Since such immunity is claimed at the threshold, the Court  should  carefully  scrutinize  the  relevant facts and materials placed before it for the purpose of finding (a)  that the  concerned Officer was authorised to act for prevention of smuggling activity and in fact had bona  fide acted  in exercise  of  his  duties  and functions in  preventing the smuggling activities being carried or  about to  be carried  (b) there  are  prima facie materials  to  indicate  that  such  officer  had honestly attempted to stop the conveyance for effecting search of the same (c) that such an attempt to stop the vehicle was  sought to  be  frustrated  either  by  not stopping the  vehicle  or  by  attempting  to  forcibly taking  away   the  vehicle   despite  attempt  by  the concerned officer  to stop  the vehicle  and  (d)  that recourse to  use of  force on the driver or occupant of the vehicle  was apparently necessary to immobilize the vehicle or  to save  himself from  imminent  danger  of personal risk.  If on  consideration of  the  materials placed  before  the  Court,  a  possible  view  can  be objectively taken  that in  discharge of the duties and functions under  Section 106  of the Customs act that a competent Officer had bona fide used force and such use of force  is not  just a ruse for high handed action on his part which was not at all necessary in the facts of

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the case but prima facie there is justification for the course of  action pleaded  by the  officer,  the  Court would give  effect to  the protection under Section 155 of the  Customs  act  by  dropping  the  criminal  case initiated against  the  concerned  Officer.  The  facts already on record, some of which have been indicated in the judgment  of my  learned brother, indicate that the appellant was on official duty as preventive Officer to look out for smuggling activities at the  relevant time  and in discharge of his official duties he  had chased a speeding contessa car driven by the  deceased  in  an  attempt  to  stop  the  car  for searching the  same. As  a matter of  fact, he overlook the car  and having  disclosed his  identity asked  the deceased to  stop the  car  but  when  the  driver  had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle.  It has  also been revealed that appellant had received various injuries including  incised wounds which on the basis of medical report are likely to have been caused  at the  time when  attempt to stop car was made. such  facts prima  facie support  the appellant’s claim for  the   protection under  Section 155  to  the Customs Act.  In the  facts of the case, it will not be proper to disallow such protection under Section 155 of the Customs  Act to the appellant but to subject him to a full fledged trial on a charged of murder by pointing out that it would be open to the appellant to plead for right to  private defence in such trial, like any other accused.      It may  be indicated  here that  in  the  case  of Bhappa Singh Vs. Ram Pal Singh and others (1981 (Supp.) SCC 12)  the officials  of  the  Customs  and    Excise Department raided  a jewellery  shop of the complainant and being attacked, the said raiding party fired shots. The complainant  lodged a complaint that the members of the raiding  party had  come to  commit dacoity  in the jewellery  shop.  Indicating  the  circumstances,  this Court held  that the  raiding party  had  not  gone  to commit the  dacoity but  they had  to open fire thereby injuring  Some  person  in  the  shop  when  they  were resisted in the carrying of the raid peacefully and men of the  raiding party  were  manhandled.  The  impugned order quashing  the complaint against the raiding party was upheld  by this Court on the basis of general prima facie impression  even by  noticing  that  perhaps  the matter  may   have  required  further  evidence  before quashing. It  will be  appropriate to refer paragraph 7 hereunder :      "Even  though  what  we  have  just      stated is  a  general  prima  facie      impression that  we have  forced at      this   stage   on   the   materials      available to  us at present, it may      not  be   possible  to  come  to  a      conclusive   finding    about   the      falsity   or   otherwise   of   the      complaint. But  then we  think that      it would  amount to  giving a go-by      to  Section   108   of   the   Gold      (Control) Act,  if  cases  of  this      type are  allowed to  be pursued to      their logical  conclusion, i.e., to      that of conviction or acquittal. In      this view  of the  matter we do not

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    feel   inclined   the   upset   the      impugned order, even though perhaps      the  matter   may   have   required      further evidence before quashing of      the complaint  could be  held to be      fully  justified.   The  appeal  is      accordingly dismissed."