Panch witness defects and retracted confession: seizure evidence and corroboration sustained the Customs conviction, but conspiracy charge failed.

Non-examination or incomplete proof of panch witnesses under Section 102(4) of the Customs Act did not, by itself, invalidate the search where Customs officers gave consistent evidence of recovery and the seizure was otherwise proved. A statement recorded under Section 108 was treated as voluntary despite later retraction because it was contemporaneous, endorsed as correctly recorded, and corroborated by official testimony and surrounding circumstances. The conviction under Section 136(1) could not stand once the alleged concert with the co-accused was not established after the co-accused's acquittal. The acquittal was therefore reversed for the offences linked to the proved recovery and confession, but maintained for Section 136(1).

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Issues: (i) Whether non-compliance with the requirement of calling and examining panch witnesses under Section 102(4) of the Customs Act vitiated the search and seizure, (ii) whether the retracted confession recorded under Section 108 of the Customs Act was voluntary and could be relied upon with corroboration, and (iii) whether the conviction under Section 136(1) of the Customs Act could be sustained after acquittal of the co-accused.

Issue (i): Whether non-compliance with the requirement of calling and examining panch witnesses under Section 102(4) of the Customs Act vitiated the search and seizure.

Analysis: The statutory safeguard under Section 102(4) required the search to be made in the presence of panch witnesses and a list of seized articles to be prepared. The panchanama was not fully proved because one panch was not available and the other was not examined. However, the Customs officers gave consistent evidence that two panch witnesses were called, the respondent was searched in their presence, and six gold biscuits were recovered from a cloth pouch tied around his waist. The defect in proving the panchanama did not, by itself, destroy the substantive evidence of recovery.

Conclusion: The search was not treated as legally fatal to the prosecution, and the recovery evidence was accepted against the respondent.

Issue (ii): Whether the retracted confession recorded under Section 108 of the Customs Act was voluntary and could be relied upon with corroboration.

Analysis: The statement recorded under Section 108 was made on the same night, was endorsed by the respondent as correctly recorded, and was made in the presence of Customs officers. The Court found no material showing threat or coercion. Although the statement was retracted at trial, retraction alone did not render it involuntary. The confession was supported by the testimony of Customs officers regarding the apprehension of the respondent, the recovery of gold biscuits, and the surrounding circumstances.

Conclusion: The confession was held to be voluntary, true, and sufficiently corroborated, and could be used in support of conviction.

Issue (iii): Whether the conviction under Section 136(1) of the Customs Act could be sustained after acquittal of the co-accused.

Analysis: The charge under Section 136(1) rested on an agreement between the respondent and the co-accused to smuggle the goods. Since the co-accused had been acquitted and the alleged concert was not established, the basis for this charge was not available.

Conclusion: The conviction under Section 136(1) of the Customs Act was not sustainable.

Final Conclusion: The acquittal was reversed in respect of the offences under Sections 135(1)(a)(ii) and 135(1)(b)(ii) of the Customs Act and Section 5 of the Imports and Exports Control Act, 1947, while the acquittal under Section 136(1) of the Customs Act was maintained.

Ratio Decidendi: A defect in the proving of a panchanama or non-examination of panch witnesses does not nullify a seizure where reliable official testimony and a voluntary, corroborated confession establish the recovery and the offence.

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