Section 135

Granting bail to a woman held for over four years in an NDPS and Customs case involving more than a commercial quantity, the Supreme Court noted she had not cross-examined witnesses until she engaged her own counsel. It directed all trial courts to tell accused persons of their right to legal-aid counsel and to record the offer, the response and the action taken before witnesses are examined (paras 3-13).

Allowing the State's appeal, the Supreme Court restored a conviction for keeping smuggled gold. An illegal police search does not vitiate the seizure or the trial on a customs complaint (para 10). Even where the Section 123 presumption is unavailable, the prosecution may prove from circumstances that gold was smuggled and that the accused knew it (paras 16, 19-23). The words "acquires possession" in Section 135(1)(b) are not limited to an owner or purchaser (para 23).

The Supreme Court upheld a bullion dealer's conviction for possessing smuggled and undeclared gold. It held that "any person" whom a customs officer may examine under Section 107 of the Customs Act includes a suspect and potential accused, at any place including the Customs House, and that the gold-control penalty covers smuggled gold (paras 3, 15-16). Refusing leniency, it said professional economic offenders deserve jail (paras 18-21).

A five-judge Bench of the Supreme Court held that a customs officer, under the Sea Customs Act, 1878 or the Customs Act, 1962, is not a "police officer" under Section 25 of the Evidence Act, because he cannot submit a report under Section 173 of the Code of Criminal Procedure (paras 4, 9, 24-26). A person questioned or arrested in a customs enquiry is not "accused of an offence" under Article 20(3) until a complaint is filed before a Magistrate (paras 10, 13, 27-28).