Gold biscuit handover allegation based only on co-accused s.108 statement; s.112(b) penalty set aside for lack of corroboration

Penalty under s.112(b) Customs Act, 1962 was challenged on the ground that it rested solely on a co-accused's statement recorded under s.108 alleging that the appellant handed over gold biscuits for delivery. The Tribunal held that a co-accused's confession is not substantive evidence and can be relied upon only as corroborative assurance to other independent incriminating material; it requires close scrutiny and must be supported by independent corroboration. As the investigation neither traced the alleged recipient nor produced any corroborative evidence to substantiate the co-accused's version, the statement could not, by itself, sustain penal liability. The penalty was set aside and the appeal was allowed.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether penalty under Section 112(b) of the Customs Act, 1962 could be sustained against the appellant solely on the basis of a co-accused's statement (including reiteration in cross-examination) when the statement was treated as exculpatory and remained uncorroborated by independent evidence.

(ii) Whether the investigation material relied upon (including an alleged mobile number said to be used by the appellant and the alleged intended receiver) provided independent corroboration sufficient to connect the appellant with smuggling/abetment so as to justify penalty under Section 112(b).

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Sustainment of penalty under Section 112(b) on uncorroborated co-accused statement

Legal framework: The Tribunal examined imposition of penalty for alleged abetment under Section 112(b) of the Customs Act, 1962, and evaluated the evidentiary sufficiency of a co-accused's statement as the sole basis for penal liability.

Interpretation and reasoning: The Tribunal found that the only material implicating the appellant was the statement of the person from whose possession foreign-marked gold was recovered. Although that person reiterated the allegation in cross-examination, the Tribunal characterized the statement as exculpatory in nature, being an attempt to shift responsibility for the seized gold. The Tribunal held that, in the absence of independent corroboration, such an exculpatory statement of a co-accused could not be treated as sufficient to implicate the appellant for the purpose of penalty. The Tribunal expressly applied the principle that a co-accused confession/statement is not substantive by itself and requires corroboration from independent sources before it can support an adverse conclusion against another noticee.

Conclusions: Penalty under Section 112(b) could not be imposed where the case against the appellant rested only on an exculpatory co-accused statement without independent corroboration. The Tribunal set aside the penalty and held that no penalty was imposable on the appellant on these facts.

Issue (ii): Whether alleged ancillary investigation material corroborated the co-accused statement

Interpretation and reasoning: The Tribunal assessed whether the investigation produced corroboration beyond the co-accused statement. It noted that searches at the appellant's residence did not yield incriminating material. The Tribunal also examined reliance on a mobile number allegedly provided by the co-accused and allegedly used by the appellant, but found that the number was registered in another person's name and that the authorities did not investigate or verify usage with that registered person; nonetheless, the adjudicating authority concluded it was used by the appellant. The Tribunal treated this as an arbitrary inference lacking verification and therefore not corroborative evidence. Further, while the co-accused named an intended receiver of the gold, the investigation did not trace or identify that alleged receiver, reinforcing the Tribunal's conclusion that the co-accused statement was not substantiated by supporting evidence.

Conclusions: The Tribunal held that the investigation failed to produce independent corroborative evidence connecting the appellant with the alleged smuggling/abetment. The mobile-number allegation and failure to trace the alleged recipient did not corroborate the co-accused statement. Consequently, the penalty was unsustainable and was set aside.

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