Searches Under Customs Act 1962- An Insight on Law & Procedures!

Effecting searches under Customs Act 1962 properly is critical for taking an investigation to its logical end. However, the procedure for these searches under Customs Act has to undertaken cautiously. As part of Investigation, searches are fraught of risks also which might involve violations of civil rights and likelihood of getting foiled your own endeavour to make any breakthrough if not planned well.

In this discussion , we shall consider, how searches under Customs Act, 1962 for the purposes of any investigation or inquiry will be effected. It may be stated here as a general rule that freedom and liberty of private citizens should not normally be curtailed or sacrificed unless it becomes necessary in the larger interest of society for the purposes of investigation. Naturally, where powers have been given to tread upon the rights of individuals for the purpose of investigation, adequate care should be given to avoid possible misuse of such powers. The provisions of search under Customs Act must strike a just balance between investigation and interest of individuals privacy and freedom.

Types of Searches Under Customs Act 1962

Searches under Customs Act, 1962, speaks of three kinds of searches that of persons, premises and conveyances and have been dealt in Chapter XIII of the Customs Act. Relevant Section for searches under Customs Act are 100, 101, 102 105 and 106. During investigation, when it is reasonably believed that goods and/or documents which are liable to confiscation are secreted on the persons (Section 100, 101 and 103) or in any premises ( Section 105) or in any conveyance (Section 106) searches are conducted.

Relevant Section for Searches under Customs Act

Searches of persons are dealt by Section 100, 101,102 and 103 of the Customs Act. The power of searches of persons are given to have control of persons exiting/ entering India , thereby resulting in better control over exit/entry points of India.

As per definition of India under Section 2(27), it sovereignty extends upto 200 nautical miles. Concept of territorial water and Indian Customs water are highly relevant for enforcing the provisions of customs law. Territorial waters means the portion of sea adjacent to the shores of a country, presently it extends upto 12 nautical miles from the base line w.e.f 30.09.1967. Another concept is of “Indian Customs Water “ which is defined under Section 2(28) which reads as under;

Section 2(28)- “Indian customs waters” means the [waters extending into the sea up to the limit of [Exclusive Economic Zone under section 7] the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976)] and includes any bay, gulf, harbour, creek or tidal river. It is upto 200 nautical miles from the base line. Significance of discussing Indian Customs Waters in relation to search is that Customs Officer has power to stop and search any vessel (Section 106). Further, if conveyance (vessel, aircraft or vehicle) in Indian customs water or in India or in customs area as the case may be, found to concealed smuggled goods shall be liable to confiscation.

All the relevant Sections respecting searches are laid down as under and will be discussed section wise one by one.

Section 100 – Power to search suspected persons entering or leaving India, etc.

— (1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person.

(2) This section applies to the following persons, namely : —

(a) any person who has landed from or is about to board, or is on board any vessel within the Indian customs waters;

(b) any person who has landed from or is about to board, or is on board a foreign-going aircraft;

(c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India;

(d) any person not included in clauses (a), (b) or (c) who has entered or is about to leave India;

(e) any person in a customs area.

Explaining Section 100 for Search Under Customs Act

Plain reading of this section revealed that it proceeds on reasonable belief and cover specified persons who are suspected to conceal dutiable or prohibited goods or documents which are liable to confiscation on their person with an intention to evade duty or breach prohibition. Specified persons are elucidated in sub-section 100(2). This section has covered persons leaving or entering India through all possible modes of transportation i.e. conveyance defined in Section 2(9) of the Customs Act.

Now the issue which requires to be answered whether person who is exiting or entering India by any other mode of transportation would not be covered under definition of conveyance such as train and whether will not be subjected to personal search at the entry/exit point. The answer is in affirmative. Persons entering or leaving through Land Customs Station {S2(9)} , even by train for example at Attari Border or by any other modes of transportation such as on bullock cart squarely falls under clause (d) of Section 100. Sub-section (e) widens the power of customs officer for making personal search as it is applicable to any person found in customs area.

Sometimes, it happens that persons engaged in the dock area or airport such as dock labour, airlines staff, immigration staff, or security personal and happens to receive smuggled goods ( receiver of the smuggled goods) they will fall under this section.

SECTION 101. Power to search suspected persons in certain other cases

— (1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or special order of the [Principal Commissioner of Customs or Commissioner of Customs], has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person.

(2) The goods referred to in sub-section (1) are the following : —

(a) gold;

(b) diamonds;

(d) watches;

(e) any other class of goods which the Central Government may, by notification in the Official Gazette, specify.

Explaining Section 101

This enables duly empowered officer of customs to search suspected persons anywhere in India suspected to have secreted certain goods elucidated in sub-section 2 . Smuggled goods changes hand immediately and not remains in the hand of carrier or smuggler who is bringing the goods illegally through seaport/airport, sometimes such goods sold to other person in other area, hence, it is important to have power to search any person anywhere in India. Though this power is for certain goods and not available for all smuggled goods. But condition precedent regarding empowerment by Principal Commissioner of Customs or Commissioner of Customs, must be followed.

Example – We will see how this section come into operation .

A team of investigating officers, have gone for search of the premises under Section 105 of the Customs Act, suspecting that smuggled gold (item covered under sub-section 2) is secreted in the named premises mentioned on the search warrant, but nothing incriminating found and that compelled the officers to go for personal search , then in that case , search will be conduced under section 101. Another related question naturally comes in the mind of readers how at that point of time, permission of Commissioner of Customs will be obtained which is condition precedent, answer is at the time of issuance of warrant under Section 105 by Deputy Commissioner or Assistant Commissioner, it must be approved by the Commissioner of Customs, regardless of the practice being followed in Customs House or any other formation in terms of letter and spirit of the Section 101.

SECTION 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 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.

(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.

This section controls both Section 100 and 101 and prescribes manners for conducting search under the Customs Act. Section 102 is procedural in nature and cast obligation on the Customs Officers for carrying out search in prescribed manner. Violation of proceedings may lead to vitiation of search proceedings and would weaken the weight of the evidence.

Search Before the Gazetted Officer of Customs or the Magistrate- Section 102(2) & (3)

The persons falling under Section 100 or 101 must be searched before the gazetted officer of customs or the magistrate. The suspected persons have a right to be informed that they have a right to be searched either before gazetted officer of customs or the magistrate. Without giving such option, search will be vitiated and may lead the criminal trial to result in failure. The person to be searched must be brought immediately before the nearest gazetted officer of customs or the magistrate and if he found no reasonable ground to search , the person would be forthwith discharge .

Search Under Customs Act- Before Two or more Witness – Section 102(4)

The search proceedings of suspected person shall be carried out before two or more witness and recovery of any incriminating goods or documents may be inventorized and such list or inventory shall be signed by the witness and by Officer. The copy of such inventory/list shall be delivered to person from whose possession goods/documents were recovered . Parallel Section is 100(4) of CrPC ,which deals with general search.

Search of a Female – Section 102(5) of CrPC

Female shall be searched by female customs Officer with strict regard to decency, hence search team must consists of female officer. Parallel Section 100(3) of CrPC.

SECTION 103. Power to screen or X-ray bodies of suspected persons for detecting secreted goods.

— (1) Where the proper officer has reason to believe that any person referred to in sub-section (2) of section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest magistrate.

(2) A magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person.

(3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect.

(4) Where a magistrate has made any order under sub-section (3), in relation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X-ray his body.

(5) A radiologist before whom any person is brought under sub-section (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him, to the magistrate without unnecessary delay.

(6) Where on receipt of a report from a radiologist under sub-section (5) or otherwise, the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction :

Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner.

(7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct.

(8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods.

Explanation. – For the purposes of this section, the expression “registered medical practitioner” means any person who holds a qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 (7 of 1916), or notified under section 3 of that Act, or by an authority specified in any of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956).

Summary of the Section

The aforesaid provision lays down the procedure that a customs officer is required to follow to conduct X-ray of the body of the suspect for detecting and/or recovering contrabands secreted inside his body. Such procedure may be summarized as follows:-

(a) Firstly, the customs officer must entertain reason to believe in the facts of the case that the suspect has secreted contraband in his body.

(b) On the basis of such reasonable belief, he has to produce the suspect before a Magistrate and make a prayer for holding X-ray of his body. On such application the Magistrate must record his satisfaction that there are reasonable grounds to believe that the suspect has secreted goods in his body and upon recording satisfaction shall permit the body of the suspect to be screened or X-rayed.

(c) Pursuant to such order the suspect shall be taken to a qualified radiologist and X- ray shall be performed on his person. The radiologist after conducting screening or X-ray of the body shall forward the report along with X-ray plates to the Magistrate without delay.

(d) On receipt of such report of the radiologist, the Magistrate upon recording satisfaction that the suspect has goods secreted in his body which is liable to be confiscated, shall direct suitable action for bringing out such goods on the advice and under supervision of a registered medical practitioner. The suspect may be kept in the custody pursuant to the order of the Magistrate for affecting such recovery.

(e) Such procedure may be waived when the suspect admits that he has secreted contraband in his body and voluntarily submits himself to suitable action for bringing out such contraband.

The procedure described above calls for magisterial intervention not only for the purpose of holding X-ray of the body of the suspect but also requires magisterial permission for undertaking suitable action for recovery of the contraband secreted inside the body upon receipt of report of the radiologist. Initial magisterial permission for conducting X-ray of the suspect is not a substitute of the subsequent magisterial sanction for undertaking suitable action to bring out the contraband in the presence of a registered medical practitioner upon receipt of the X-ray report. Accordingly, consent of the suspect for conducting X-ray of his body cannot be treated to be a valid consent under sub-section (8) of Section 103 to waive the necessity of magisterial permission for undertaking suitable action for bringing out the contraband in presence of a doctor upon receipt of the X-ray report. Thus, consent of the appellant in to conduct X-ray in the instant case does not absolve the authorities to follow the procedure adumbrated in sub-sections (5) and (6) of the said section for bringing out the goods secreted inside the body of the suspect

Objective of Section 103

This Section comes into operation when need arises of screening or X-raying bodies of suspected person for detection of secreted goods inside the body of person specified under Section 100(2) respecting persons entering or leaving India . This is applicable for the person making entry/exit from notified port, airport, land customs area etc. The suspected person is required to be produced before nearest magistrate, who will decide whether to subject the said person for screening or X-ray or to discharge him immediately. In case of decision by the magistrate for screening or X-ray, the such person will be referred to radiologist , who after screening or X-ray , forward the report to Magistrate. Based on report the Magistrate after satisfaction sent the person to registered medical practitioner for taking suitable action for bringing out goods liable to confiscation. The Act has used words “Where on receipt of a report from a radiologist under sub-section (5) or otherwise, the magistrate is satisfied in sub-section 103(5)”, it means that report must indicates that secreted goods inside his body is smuggled goods and liable to confiscation. Presume , there may be a case that person has implanted some metal rod inside his body for some surgical requirement, in such case even the report suggests some metal inside body , person can be discharged .

In Mursaleen Mohammed v Union of India, reported in 2018 (363) E.L.T. 99 (Cal.), the Hon’ble Calcutta High Court held that ingredients of Section 103 has to be fully complied

Intrusive search inside body of suspect is encroachment into privacy of suspect – It must be in strict compliance of safeguards in Section 103 ibid and in consonance to dignity of suspect – It must not involve any cruel, degrading or inhuman treatment which would violate Article 21 of Constitution of India. – It appears from the evidence of the prosecution witnesses that on receipt of X-ray report, the appellant was kept under surveillance at the A.I.U office till he defecated on the next morning allegedly ejecting the contraband from his body. Perusal of the order dated 10-2-2012 of the Magistrate permitting X-ray of the abdomen of the appellant shows that the A.I.U officers were directed to produce the appellant with X-ray report immediately after screening and the officers were directed to extend medical aid to the appellant while in detention. Although X-ray was done on that day, no explanation is forthcoming why the appellant with the said report was not produced before the Magistrate on that day itself. Further, the appellant was not under medical supervision where he was under surveillance at the A.I.U office in spite of direction for medical aid given by the Magistrate. Hence the procedure followed by the A.I.U officials in keeping the appellant under surveillance in their office without producing him before the Magistrate immediately upon screening on the self same day and/or failing to extend medical supervision to him during his detention and alleged recovery while in their custody is not only violative of the statutory scheme but also an infringement of his fundamental right to just, fair and humane procedure contemplated under Article 21 of the Constitution. [para 30]

SECTION 105. Power to search premises

— (1) If the [Assistant Commissioner of Customs or Deputy Commissioner of Customs], or in any area adjoining the land frontier or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things.

(2) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-section (5) of Section 165 of the said Code shall have effect as if for the word “Magistrate”, wherever it occurs, the words [Principal Commissioner of Customs or Commissioner of Customs] were substituted.

Power to Search Premises – Section 105 of the Customs Act, 1962

Object- The object of this Section is to make search for the goods liable to be confiscated or recovery of documents secreted in any place, which are relevant to any proceedings under the Customs Act. When such goods, things or documents could not be produced by the person summoned or enquiry taken against him by requisition under the authority of Section 107 or 108, action under Section 105 is initiated.

Section 105(1) confers powers to

Asstt/Deputy Commissioner of Customs in normal jurisdiction
In area adjoining land frontier or the coast of India to an officer of customs specially empowered by name in this behalf by the Board.

Section 105(1) of the Customs Act

Under Section 105(1) of the Customs Act, 1962, if the Asstt/Deputy Commissioner of Customs has reasonable believe that some incriminating goods, document, things etc are secreted in any place and are liable for confiscation, either he may conduct search personally or may authorize any officers of Customs to search the place. Asstt/Deputy Commissioner of Customs issues search warrant under his seal and signature and name of the officers are mentioned in it.

Section 105(2) of the Customs Act

It says that provisions of CrPC, 1973 relating to searches shall so far as may be apply to this section. It simply means that in absence of any provisions regarding search under this section, analogous provisions can be borrowed from the general law i.e. CrPC. In CrPC general provisions related to search has been dealt under Section 100.

For Example

By Section 100(6) of CrPC , it is mandated that occupants has to be given list of goods taken over after procuring sign of witness. No such provision is in Section 105 of the Customs Act, therefore, this provision can be borrowed under Customs Act. Accordingly , whenever, there is gap in customs law, we can invoke corresponding provisions of CrPC.

In S.B International v Asstt Director, D.R.I reported in 2018 (361) E.L.T. 305 (Del.), the Delhi High Court has held that;

In search under Section 105 of Customs Act, 1962, specified officers must have “reason to believe” that goods liable to confiscation or any documents or things useful or relevant to proceedings have been secreted for directing search of premises . Their mere reason to suspect not sufficient for authorizing search. [para 15]

Meaning of word “Secreted”

The meaning of word secreted must be understood in the context , it is used in this section. It implies that goods, documents or things are not kept at the usual or normal place . It is kept out of way of customs officer with an intention , that it may not be easily found, with a view to conceal them.

Content of the Search Warrant – Following will be the content of the search warrant ;

The premises to be searched ;
The name of the authorized officer(s) ;
The name of issuing officer with full designation;
The date and place of issue;
Serial no of the search warrant

Procedure for search

–During search proceedings, search panchnama is drawn by Customs Officers (Generally IO) in the presence of two independent panchas. Following procedures are adopted;

The person of the authorized officials and witnesses may be offered for search before initiating the search so as to avoid suspicion that any member has surreptitiously planted the things recovered in the search;
The officers of customs must call upon two or more witnesses, who are respectable inhabitant of the locality , wherein premise is situated .
The list of all the things recovered during search must be inventorized wherefrom they are recovered and must be signed by the witnesses,.
The copy of list prepared and signed by the witnesses must be given to the owner of premise or his/ her representative.

Liable to Confiscation

During search, only those goods, documents, things etc which are incriminating in nature and are liable to confiscation under Section 113 would be seized under Section 110 of the Customs Act, 1962. Often during search proceedings, it becomes difficult to ascertain the relevance of documents found in search therefore only after scrutiny and examination, importance of documents can be known . Further, if documents are not relied upon in show cause notice , the same can be returned from whose custody , it was seized.

The person from whose custody any documents are seized under section 110(3), shall be entitled to make copies thereof or take extracts therefrom in the presence of officers in terms of section 110(4).

Presence of independent and respectable inhabitants as witness

Section 105 is silent on issue of witness, but Section 100(4) of CrPC lays down provision in respect of witness. Witness must be respectable and either of same locality or of some other locality. The word respectable means that witness should not have any criminal case pending against him. The rickshaw puller can also be witness, as his job does not bring any disrepute. If the witness is not available in the locality wherein premises is situated he can be brought from other areas.

Refusal of person to attend and witness search proceeding is punishable under section 187 of the IPC . This general provision has been lays down under section 100(8) of CrPC.

Emergence of Some Tricky Situations During Search Under Customs Act 1962

When the premise is locked-

In absence of any provisions of customs act , provisions of CrPC is applied and in terms of Section 47(2) of CRPC , the Officers are permitted to break open such locked premise and enter into premises to effect arrest of person.

Vitiation of Search

– In the case of Wazir Chand v State of H.P, AIR, 1954,S.C 415, it was held by the Supreme Court that search was illegal as it was without authority of law and provisions of search were non-complied.

Evidence obtained in illegal search –

Evidence which is otherwise relevant does not become irrelevant as the search was invalid or without any authority of law. This view was held in the case of Barindara Kumar Ghose v Emperor ILR 37 Cal 467. In another case of State of Maharashtra v Natwarlal Damodar Das Soni, the Hon’ble S.C has held that even if the search was illegal , it will not vitiate seizure of articles, subsequent investigation and trial and conviction.

Whether Name of the Person Whose Premises is to be Searched is Required to Mention on the Search Warrant

– Reading of the section 105(1) does not indicates any such requirement. Particulars of premises are required to be mentioned on search warrant, this view was held in Anshuman Lath v Deputy Superintendent of Central Excise , Calcutta 71,C.W.N 814.

Search of Premises Falling Beyond the Jurisdiction

The power is vested on customs officer in terms of jurisdiction. In this regard, notifications issued under Section 4 may be referred for this purpose, which prescribes jurisdiction of a particular customs house or customs formation. Search Warrant for the premises falling beyond the jurisdiction of customs house/ customs formation, may not be issued as it will be ultra vires . For the premises which is falling beyond the jurisdiction, a request to be made to competent Customs authorities of that jurisdiction, wherein premises is situated for issuance of search warrant.

Retrieval of Incriminating Electronic Data During Search and the Application of Section 138C of the Customs Act.

Nowadays, the exporter/importer stores all the relevant import/export data in electronic form. With the implementation of “Ease of Doing Business” emphasis is on paperless transaction, which provides greater significance to Section 138C of the Customs Act, 1962. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.

Electronic record containing information are deemed to be a document and becomes admissible in any proceedings in terms of Section 65A and 65B of the Evidence Act,1872 without further proof or production of the original document . Section 65B deals with the admissibility of the electronic record. Section 138C of the Customs Act is pari materia with Section 65B of the Evidence Act, 1872. But precaution is required to be exercised during retrieval of data from computer and data must be taken under some certificate signed by a person occupying responsible official position in relation to the operation of the relevant device or the management of the activities .

Case Laws on Section 138C

In S.N. Agrotech Versus Commissioner of Customs, New Delhi 2018 (361) E.L.T. 761 (Tri.- Del.) Section 138C came for scrutiny.

The CESTAT, Principal Bench, New Delhi has observed the following ;

On close reading of Section 138C of the Act, 1962, it is seen that the Legislature had prescribed the detailed procedure to accept the computer printouts and other electronic devices as evidences. It has been stated that any proceedings under the Customs Act, 1962, where it is desired to give a statement in evidence of electronic devices, shall be evidences of any matter stated in the certificate. In the present case, we find that the provisions of Section 138C of the Act were not complied with to use the computer printouts as evidence. The Ld. Counsel for the appellants submitted that there is a gross illegality committed during the retrieval of the electronic documents. It appears from the Panchnama and record of proceedings that the alleged date recovered from electronic documents, so seized, were copied in a hard disk in presence of one person and, thereafter, it was opened in front of other persons. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers are procuring the evidences in the nature of documents, statements, etc., to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow the procedure, while using the electronic devices as evidence for authenticity of the documents, which would be examined by the adjudicating authority during adjudication proceeding. In the instant case, it is found that the entire case proceeded on the basis of the electronic documents as evidence. But the investigating officers had not taken pain to comply with the provisions of the law to establish the truthfulness of the documents and merely proceeded on the basis of the statements. Hence, the evidence of electronic devices, as relied upon by the adjudicating authority cannot be accepted.

In the case of Anvar P.V. (supra), while dealing with Section 65B of the Evidence Act,1872 (Pari materia to Section 138C of the Act, 1962), The Hon’ble Supreme Court has observed as under;

“We note that the Section 138C of the Customs Act is pari materia to Section 65B of the Evidence Act. Consequently, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted as in the present proceedings only subject to the satisfaction of the sub-section (2) of Section 138C. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer printouts from the seized laptops and other electronic devices have not been accompanied by a certificate as required by Section 138C(2) as above. In the absence of such certificate, in view of the unambiguous language in the judgment of the Hon’ble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of undervaluation and mis-declaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri Nikhil Asrani, Director in respect of which the requirement of Section 138C(2) has not been satisfied. On this ground, the impugned order suffers from uncurable error and hence, is liable to be set aside .

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 –

(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 authorised 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.

Comments- This section is applied for aircraft, vehicle, vessel or for the animal, which has been or being used or about to be used as a conveyance for smuggling of any goods or for carriage of smuggled goods. This section covers all possible mode of transportation . Based on reasonable believe, such conveyance may be stopped at any time and search may be conducted. If the conveyance fails to stop, even after exercising all lawful means ,chase can be given and even force can be used. In extreme cases, conveyance can be fired upon in order to stop and search the conveyance. The power to stop and search is inherent or implied with power to verify and check.

Territorial Jurisdiction Under Section 106 of the Customs Act

This section is having its operation in India or in Indian Customs Water means in entire territory of India and also upto 200 nautical miles in sea. Conjoint reading of Section 104, (which says that power of arrest can be exercised to the extent of Indian Customs Water) and (use of word Indian Customs Water) in Section 106 and Section 100(2) (a) implies that three important tools for enforcing customs act i.e. search , seizure and arrest can be effected in Indian Customs water.

Search Under Customs Act- Protection u/s 155 of the Act is available.

In Costao Fernandes Versus State at the instance of D.S.P., CBI, Bombay, reported in 1996 (82) E.L.T. 433 (S.C.)

The hon’ble S.C has held that protection to Customs Officers from prosecution and other legal proceedings for bona fide action taken in discharge of their duties under the Customs Act is available . Customs Officer was on preventive duty while chasing and attempting to stop a vehicle carrying smuggled goods killed driver of the vehicle . Then Customs Officer absconded for two days out of fear of life and twenty-two injuries found on the body of the officer claimed by CBI to be self-inflicted . CBI also claimed that no records was made available for prior information of smuggling . Finally , it was held that Customs officer entitled to protection from criminal prosecution under Section 155 read with Section 106 of the Customs Act since injuries were not self-inflicted and as per Customs Department it had prior information of this smuggling activity.

Illegal Search by Customs Officer

The personal search by customs officers in absence of reasonable belief is made punishable by section 136(2) (a) . Further, searches of premises without any valid reason on unreasonable ground is also made punishable by Section 136(2) (c) . Both prescribed punishment for six months or fine or both.

The relevant extract of Section 136 are as under ;

Offences by Officers of Customs.

(2) If any officer of customs, –

(a) requires any person to be searched for goods liable to confiscation or any document relating thereto, without having reason to believe that he has such goods or document secreted about his person; or

(b) arrests any person without having reason to believe that he has been guilty of an offence punishable under section 135; or

(c) searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents or things of the nature referred to in section 105 are secreted in that place,

he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both

Rummaging by Officers of Rummaging & Intelligence Unit

The power to rummage the vessel is derived from Section 106(1)(a) . Rummaging is done on the basis of intelligence that there is some concealment in vessel or aircraft . This is not done in routine manner. It is an effective tool to prevent any attempt to smuggling of prohibited/restricted goods. It must be done by analyzing risk parameters. Full detailed rummage must be carried out only based on reliable information, risk analysis in order to avoid harassment, alleged complaints. Probable parameters could be arriving from sensitive destination, composition of crew, frequency of visit.

Effecting Searches Under Customs Act 1962- Final Words

Every man’s home is his castle. In English law, protection was given to individual’s home from the prying eyes of King. Therefore, based on reasonable believe, searches of persons, premises and conveyances are done to unearth goods, documents and things, which are found to be incriminating and liable to confiscation. These are exceptional power as it invade personal freedom and liberty, therefore it must be done only in the larger public interest to detect evasion of tax in accordance with constitutional safeguard. Individual interest can only be sacrificed in the interest of community. Precaution with regard to witness , computer printouts, jurisdiction , legality of search must be taken. Since searches invades privacy, therefore unlawful searches have been made punishable also. Simultaneously, searches done in good faith in discharge of duty is entitle for protection under section 155 of the Customs Act.

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