Case Note & Summary
The appellant was a Preventive Officer of the Customs Department who, while on official duty, was keeping vigil based on source information about smuggling activities. He located a Contessa car being driven away at speed with smuggled goods and chased it on his motorcycle. After overtaking the car, he disclosed his identity and asked the driver to stop, but the driver attempted to flee. The appellant jumped into the car and tried to take out the ignition key to stop the vehicle, during which he sustained injuries including incised wounds. The driver died as a result of the incident, leading to initiation of criminal proceedings against the appellant for murder. The appellant claimed protection under Section 155 of the Customs Act, which protects officers from criminal proceedings for acts done in good faith in discharge of official duty. The respondent, represented by the Additional Solicitor General, contended that the power under Section 106 of the Customs Act was confined to stopping the vehicle and did not extend to use of force against the driver; therefore, if resistance necessitated action in the nature of private defence, the officer should face trial and plead that defence. The Supreme Court rejected this contention. It held that the purpose of Section 106 would be frustrated if a Customs Officer, in bona fide exercise of his powers, was not permitted to take all consequential actions necessary to stop and search a conveyance. The Court observed that sub-section (2) of Section 106 expressly authorises firing upon a vehicle or aircraft to forcibly stop it, and it would be hypertechnical to argue that injuring the driver in an attempt to immobilise the vehicle is beyond the scope of the power. The Court laid down that before granting protection under Section 155 at the threshold, the Court should carefully scrutinise materials to verify: (a) the officer was authorised and acted bona fide in preventing smuggling; (b) there are prima facie materials showing an honest attempt to stop the conveyance; (c) the attempt was frustrated; and (d) use of force was apparently necessary to immobilise the vehicle or save himself from imminent danger. If a possible view can be objectively taken that the use of force was bona fide and not a ruse for high-handed action, the criminal case should be dropped. Applying these principles, the Court found that the appellant was on official duty, had chased the car, disclosed identity, attempted to take out the ignition key, and had received injuries supporting his claim. It concluded that it would be improper to subject him to a full-fledged trial for murder when protection under Section 155 was available. The Court also relied on Bhappa Singh v. Ram Pal Singh, where a raid party that fired shots when resisted was protected from prosecution. Accordingly, the Supreme Court agreed with the main judgment and held that the appellant was entitled to protection under Section 155 of the Customs Act, and the criminal proceedings should be dropped.
Headnote
A) Customs Law - Powers of Customs Officers - Consequential Authority to Stop Conveyances - Customs Act, 1962, Section 106 - The Court held that the power to stop and search a conveyance under Section 106 includes all consequential actions necessary to effect stopping, including use of force to immobilize the driver or occupant if the vehicle cannot be stopped otherwise; sub-section (2) permits firing upon a vehicle, so it would be hypertechnical to exclude injuring the driver when necessary. Held that a Customs Officer possesses such power and authority for giving full effect to Section 106. (Paras 1-2) B) Criminal Procedure - Quashing of Criminal Proceedings - Protection under Section 155 of Customs Act, 1962 - Section 155, Customs Act, 1962 - At the threshold of criminal trial, the Court must scrutinize materials to find (a) officer was authorized and acted bona fide in preventing smuggling; (b) prima facie evidence officer honestly attempted to stop conveyance; (c) attempt was frustrated; (d) use of force apparently necessary to immobilize or save from imminent danger. If a possible view can be objectively taken that the officer bona fide used force and not as a ruse for high-handed action, the Court should give effect to Section 155 protection and drop the criminal case. Held that the appellant was entitled to such protection; subjecting him to full-fledged murder trial would be improper. (Paras 2-4) C) Precedent - Customs and Excise Raid - Section 108 of Gold (Control) Act, 1968 - The Supreme Court in Bhappa Singh v. Ram Pal Singh upheld quashing of a complaint against raiding officials who had to open fire when resisted, holding that allowing such cases to proceed would defeat the purpose of Section 108 of the Gold (Control) Act; a general prima facie impression was sufficient. Held that similar reasoning applied, and protection under Section 155 of the Customs Act should be granted. (Para 4)
Issue of Consideration
Whether a Customs Officer's power under Section 106 of the Customs Act to stop and search a conveyance includes the use of force against the driver or occupant when necessary to stop the conveyance; Whether such officer is entitled to protection under Section 155 of the Customs Act at the threshold to quash criminal proceedings for causing death, when he acted bona fide in discharge of official duty.
Final Decision
The Supreme Court held that the appellant, a Customs Preventive Officer, was entitled to protection under Section 155 of the Customs Act, 1962. The Court directed that the criminal proceedings against him be dropped, and the appeal was allowed accordingly.
Law Points
- A Customs Officer exercising power under Section 106 of Customs Act to stop and search a conveyance reasonably believed to be involved in smuggling has implied authority to take all consequential actions necessary to effect such stopping
- including use of force to immobilize the driver or occupant if the conveyance cannot be stopped by other means
- such officer is entitled to protection under Section 155 of the Customs Act at the threshold of criminal trial if materials prima facie show bona fide exercise of power and not high-handed action
- Court must carefully scrutinize facts before granting protection.
