2023 (12) TMI 451 - HC - Customs

Appeal dismissed in gold smuggling case due to insufficient evidence and procedural failures

Kerala HC dismissed appeal against acquittal in gold smuggling case. Court held that retraction document (Ext. D1) was not properly proved as contents ... Smuggling - Gold - suppression of bill for the purchase of gold despite its seizure from his bag - retraction of statement given under section 108 of Customs Act - reliability of the statements - accused admitted the commission of offence or not - validity of judgment of acquittal of the accused. Has the accused retracted his statement given under section 108 of the Customs Act as per Ext. D1? - HELD THAT:- In the instant case, Ext. D1 was produced from the Official custody, pursuant to summons. The contents of Ext. D1 have not been spoken to by anyone. The person who signed the document or, who received the document, or in whose custody it was kept, has not been examined. The only circumstance that stands proved is that a written document was handed over to the prison authorities while the accused was in custody. When a document, admissible in evidence, is marked, for it to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it - For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it. Viewed in the above perspective, the contents of Ext. D1 cannot be said to have been proved. Hence, Ext. D1 cannot be treated as a retraction of the statement given under section 108 of the Act. Can the statement given by the accused under section 108 of the Act, produced as Ext. P8, Ext. P8(a) and Ext. P8(b) be relied upon? - HELD THAT:- The initial burden to prove that a statement given under section 108 of the Act was voluntary is on the prosecution. Even if such a statement has not been retracted, the prosecution still has the burden to prove that the accused made the statement voluntarily - As per section 3 of the Indian Evidence Act, 1872, a fact is proved only when the Court believes its existence so probable that a prudent man ought, under the circumstances of the particular case, act upon the supposition that it exists. In the nature of the circumstances referred to above, this Court does not believe that the statements Ext. P8, Ext. P8(a) and Ext. P8(b) purported to have been made under section 108 of the Act were voluntarily made by the accused. Therefore, no reliance can be placed upon those statements. Has the accused admitted to the commission of the offence in the statement under section 313 Cr.P.C? - HELD THAT:- The accused is alleged to have admitted in his statement under section 313 Cr.P.C to the act of smuggling. This Court could not identify any specific admission of commission of the offence. Even if it is assumed that there is any admission in the statement under section 313 Cr.P.C, the same cannot be relied upon as the sole material to convict the accused. Legally, a statement given under section 313 of Cr.P.C is not given under oath and hence cannot replace evidence. If the evidence of the prosecution leaves out an essential ingredient of the offence, that gap cannot be filled up by the statement under section 313 Cr.P.C. - The evidence of the prosecution witnesses indicates various inconsistencies and contradictions between them. Though few of the inconsistencies are inconsequential, some are substantial. Smuggling takes place when the Customs area is crossed without paying duty. Though the prosecution denied the existence of any place for storing goods, it is evident from section 42(2) read with section 12(3)(g) of the Airport Authority of India Act, 1994 that there are provisions for setting up warehouses to store goods brought by passengers. Similarly, there is absolutely no evidence regarding any previous smuggling of goods by the accused. The prosecution had not examined any witness or produced any document to show such previous conduct by the accused, and on the other hand, the evidence of DW1 indicates that the accused had been coming down to Kerala for business purposes, which evidence could not be dented by the prosecution during cross-examination. Therefore, the impugned judgment cannot be said to be perverse or impossible. The judgment of acquittal of the accused on the files of the Additional Chief Judicial Magistrate (EO), Ernakulam, needs no interference - Appeal dismissed. Issues Involved:(i) Retraction of the statement under section 108 of the Customs Act.(ii) Reliance on the statements given under section 108 of the Act.(iii) Admission of the commission of the offence.(iv) Interference with the judgment of acquittal.Summary:Issue No. (i): Retraction of the statement given under section 108 of the Customs Act as per Ext. D1The accused's statement under section 108 of the Customs Act was allegedly retracted through Ext. D1, a document produced from jail authorities. The prosecution did not object to the marking of Ext. D1 during the trial. However, the court noted that for a document to be admitted under section 294 of the Cr.P.C., the opposite party must be called upon to admit or deny its genuineness. Since this procedure was not followed, Ext. D1 cannot be considered as proof of retraction. Moreover, the contents of Ext. D1 were not proved as no witness testified to its authenticity. Hence, Ext. D1 cannot be treated as a valid retraction of the statement given under section 108 of the Act.Issue No. (ii): Reliance on the statements given by the accused under section 108 of the ActThe court emphasized that the prosecution must prove that the statements under section 108 were made voluntarily. The statements (Ext. P8, Ext. P8(a), and Ext. P8(b)) appeared to be dictated and included specific statutory references and terms unlikely to be known by the accused, an Irish national. The court found the circumstances surrounding the statements suspicious and doubted their voluntariness. Additionally, the prosecution's failure to produce corroborative evidence further weakened the reliability of these statements. Therefore, the court concluded that the statements under section 108 could not be relied upon.Issue No. (iii): Admission of the commission of the offence in the statement under section 313 Cr.P.CThe court found no specific admission of the offence in the accused's statement under section 313 Cr.P.C. Even if there were such an admission, it could not be the sole basis for conviction, as statements under section 313 are not given under oath and cannot replace substantive evidence. The court reiterated that a conviction cannot be based solely on the accused's statement under section 313 Cr.P.C.Issue No. (iv): Interference with the judgment of acquittalThe court noted various inconsistencies and contradictions in the prosecution's evidence, particularly regarding the place of interception and the failure to produce CCTV footage. The accused had a customs declaration form indicating he was carrying gold, and the prosecution suppressed the bill for the purchase of gold. The court found no evidence of previous smuggling by the accused and noted that the accused's visits to Kerala were for business purposes. Given these factors, the court concluded that the trial court's judgment of acquittal was not perverse or impossible.Conclusion:The judgment of acquittal dated 26.03.2019 in C.C. No. 411 of 2016 by the Additional Chief Judicial Magistrate (EO), Ernakulam, was upheld, and the appeal was dismissed.