- (1.) While respectfully agreeing with the judgment of any learned brother, I intend to add as follows : Mr. Altaf Ahmad, 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 trial 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 evidence to be adduced in the case.
(2.) In my view, such contention should not be 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 Officers, in the bonafide exercise of his powers and consequential duties as enjoined under Section 106 of the Customs Act 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 immobilise 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 Act. It will not be correct to contend that the Customs Officer's power under Section 106 of the Act is confined only to immobilisation of the conveyance even when without which immobilisation, stopping of the conveyance cannot be effected. Sub-section (2) of Section 106 of he 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 immobilise an aircraft or a vehicle, the same may be fired upon and by such process serious damage to the air craft 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 immobilise the vehicle is beyond the scope and ambit of Section 106.
(3.) XX XX XX;