TaxTMI 
TaxTMI 
2010 (12) TMI 1045
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....ginal accused Nos. 2, 1, 5, 7, 3, 11 & 6 respectively, on the grounds set out in these applications. 3. In all there were 21 accused persons who were tried for the alleged offences under Section 135(1)(b)(i) of the Customs Act, 1962. Out of this, A-9, A-12, A- 13, A-15, A-16, A-17, A-19, A-21 were acquitted. Accused Nos. A-1, A-2, A-3, A-5, A-6, A-7 and A-11 were convicted and held guilty, whereas A-4, A-8, A-18 and A-20 were not available and their trial was separated. 4. The present applicants-original accused have been convicted and sentenced to undergo R.I. for 3 years and fine of Rs. 2,000/-, i/d S.I. for 8 months as stated in the impugned judgment. 5. The Criminal Appeals, as stated above, against the impugned judgment and order of the Chief Judicial Magistrate recording the conviction have been dismissed and therefore the present Revision Applications have been preferred by the applicants, A-2, A-1, A-5, A-7, A-3, A-11 & A-6 respectively, on the grounds stated in detail in these applications. Criminal Revision Application No. 381 of 2005 6. Learned counsel Mr. Pardiwala appearing with learned advocate Ms. Megha Jani for the applicant submitted that t....
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....a referred to and relied upon the judgment of the Hon'ble Apex Court in case of Union of India v. Bal Mumund & Ors., reported in 2009 AIR SCW 2604 and submitted that the Hon'ble Apex Court in this judgment has referred to the earlier judgment with regard to the confessional statement under Section 108 of the Customs Act. He emphasised the observations made in Para 21 wherein the earlier judgment has been quoted as under :- "It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in....
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....ons made in Para 6 : "Coming to the statements recorded from A1 and A3 under S. 108 of the Customs Act, the High Court has correctly pointed out that the first Appellate Court was not at all justified in taking those statements of the accused persons as corroborative pieces of evidence to that of witness No. P.W. 7 (who was arrayed initially as accused No. 2 in the complaint). When these two pieces of evidence, namely, the evidence of P.W. 7 and the statements of A1 and A3 given before the Customs Offices are eschewed from consideration as correctly pointed out by the High Court there is absolutely no evidence worth mentioning to sustain the conviction of the first respondent as recorded by the trial Court and subsequently confirmed by the first Appellate Court. In fact, the High Court has analysed the evidence adduced by the prosecution in the proper perspective and arrived at a correct conclusion that the prosecution has miserably failed to establish the charge against the first respondent. The judgment of the High Court, in our considered opinion, does not suffer either from manifest illegality or irregularity or perversity." 13. Learned counsel Mr. Pardiwala referred to ....
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....dgments, which have been cited by the learned counsel, Mr. Pardiwala and, hence, same are not repeated. Criminal Revision Application Nos. 386 to 390 of 2005 16. Learned Sr. Counsel Mr. B.B. Naik appearing with learned advocate Mr. D.K. Nakrani for the applicants submitted that the allegations against A-3, A-7, and A-11 are that they were involved in sale of the watches. The role attributed to A-5 is that he recovered the consideration and thereby he has abetted or helped in selling the contraband goods (watches). 17. Learned Sr. Counsel Mr. Naik submitted that the statements of the accused persons have been recorded under Section 108 of the Customs Act. However, it is required to be considered what is the inculpatory part in the statement. He further emphasised that the circumstances and the manner in which such statement is recorded is required to be considered. For that purpose, he referred to the evidence and the observations in the impugned judgment. He submitted that the accused were pressurised and their statements have been recorded. In fact, an application was made under Section 200 of Criminal Procedure Code before the Magistrate who made an inquiry. 18.&ems....
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....t and order passed by the trial court and confirmed by the lower appellate court deserves to be quashed and set aide and the present application may be allowed. 21. He further submitted that the statement of the person who is not examined as a witness cannot be relied upon. He submitted that the statement of some persons who are neither an accused nor a witness have been relied upon and therefore there is material irregularity for which he referred to Exhs. 760, 762 and 763. Therefore, Learned Sr. Counsel Mr. Naik submitted that the present Revision Applications may be allowed considering even the time gap. 22. Learned counsel, Ms. Amee Yagnik appearing in all these applications for the respondent has submitted that the scope and ambit of the revisional jurisdiction is very limited and in view of the concurrent findings of two Courts below, the present Revision Applications may not be entertained. 23. In support of this submission, she has referred to and relied upon the judgment reported in (2002) 1 SCC 155 = 2001 (134) E.L.T. 3 (S.C.) in case of Gulam Hussain Shaikh Chougule v. S. Reynolds, Supdt. of Customs, Marmgoa and emphasised that the case before the Apex ....
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.... made that there was any such duress, threat or compulsion. It was submitted that when there is no such evidence brought on record, such contentions cannot be considered in revision when both the Courts below have examined and it could have been considered on the basis of the material and evidence and as they have failed, such contention, which is raised, is without any basis. 26. She has also referred to the statements as stated above in detail and submitted that it is a matter of appreciation of evidence whether such statement has been made voluntarily or not. She has pointedly referred to the judgment of the trial Court referring to the point of determination and Point No. 3 specifically refers to this aspect as to whether such statement recorded under Section 108 of the Customs Act is admissible or not and whether it can be used or not. While deciding this issue or the point of determination, the discussion has been made with regard to admissibility of such statement made under Section 108 of the Customs Act. Therefore, Ms. Yagnik submitted that the admissibility of this statement recorded under Section 108 of the Customs Act can hardly be now questioned. She further emph....
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....ed that inculpatory and exculpatory admission are required to be considered and this aspect has also been considered in a subsequent judgment reported in (2008) 9 SCC 475 in case of State of Maharashtra v. Sujay Mangesh Poyarekar and (2008) 4 SCC 70 in case of Ran Singh & Anr. v. State of Haryana & Anr. 29. Learned counsel, Ms. Yagnik has also submitted that the submissions made by the learned counsel with regard to admissibility of the confessional statement and also the admissibility of the statements recorded under Section 108 of the Customs Act qua other co-accused suggesting that if the statement under Section 108 of the Customs Act is made admissible, it would be confining to the accused, who has made such statements, but not in respect of other co-accused, cannot be considered. She has, however, submitted that this aspect is required to be considered in light of the oral evidence as other statements under Section 108 of the Customs Act of different accused have been recorded independently and based on that, there is further material/recovery of the contrabands articles (watches and money) recovered, for which, panchnama was also made, which is corroborated by the testi....
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....made before the authorized officer under the statute, such statements would be admissible in evidence and it would not be hit by the provisions of Section 34 or " 30 of the Evidence Act. 33. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in (1997) 3 SCC 721 =1997 (90) E.L.T. 241 (S.C.) in case of K.I. Pavunny v. Assistant Collector, (HQ), Central Excise Collectorate, Cochin decided by the bench of three Judges on very this point with regard to the statements recorded under Section 108 of the Customs Act. The Hon'ble Apex Court has discussed on this very point and observed that a question considered by three Judges Bench in the instant case on a reference from the two Judges Bench was whether the confessional statement of the appellant made to Customs Officers under Section 108 of the Customs Act, 1962 though retracted at a later stage, is admissible in evidence and could form basis for conviction and whether retracted confessional statement requires corroboration on material particularly from independent evidence? While considering the object of recording statements under Section 108 of the Customs Act, it has been obs....
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....l Procedure Code, wherein the orders have been passed recording some statements on behalf of the accused and, thereafter, when such statements are recorded, the submission with regard to coercion or threat cannot be readily accepted. Further, as rightly submitted by the learned counsel, Ms. Yagnik, no evidence has been broughton record on this aspect to primarily establish that it was not made voluntarily. Even the statements under Section 313 of the Criminal Procedure Code does not refer to this aspect, in which, it was open for the accused persons to say or state before the Court. Therefore, such contention which has been raised at belated stage by way of defence cannot be readily accepted. 37. In the aforesaid judgment of the Hon'ble Apex Court reported in (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.), similar contention raised by the learned counsel relying upon the judgment of the Apex Court reported in AIR 1970 SC 940 = 1999 (110) E.L.T. 324 (S.C.) also have been considered. While considering this aspect, it is required to be considered that in a judgment reported in (2002) 1 SCC 155 while considering admissibility of the confessional statement recorded under Section 1....
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....f when the seizure has been made of the contrabands goods, the entire evidence would be a relevant for considering the guilt of the accused persons. Therefore in the facts of the case, on the basis of such statements of the accused recorded revealing the details with regard to the transaction which have taken place leading to further recovery of the contraband articles and or money, for which, panchnamas are made. Therefore, observations have been made by the Apex Court in a judgment reported in (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) that such statements will lead to further evidence is required to be considered if on the basis of such revelation made in the statements leading to further evidence like recovery or discovery of the contraband articles, for which, panchnama have made would also be a relevant evidence. Again it is corroborated by the testimony of the Customs Officers as stated hereinabove. This aspect has to be considered in light of the provisions of Section 6 of the Evidence Act read with Sections 10 and 11 of the Evidence Act. 41. Provisions of Section 6 of the Evidence Act refers to the relevancy of the facts forming part of some transaction, which re....
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....atements under Section 313 of the Criminal Procedure Code. Therefore, cumulative effect of the entire evidence has to be considered and particularly when there is no explanation coming forth from the accused or the concerned accused with regard to the incriminating evidence against him. Therefore, it cannot be said that the impugned judgment and order recording conviction, which has been confirmed, is perverse or resulted into miscarriage of justice. It is also well settled that the provisions of Section 313 of the Criminal Procedure Code is specific for the purpose of pointing out circumstances with regard to the relevant evidence or incriminating evidence against him, which can be considered and opportunity is offered to give explanation or rebuttal even by preponderance of the probability. 46. Therefore, having regard to the aforesaid discussions, it cannot be said that the impugned judgment and order recording conviction, which has been confirmed by the lower Appellate Court is perverse or it is based only on the statements recorded under Section 108 of the Customs Act or even it is based on the statements of the co-accused recorded under Section 108 of the Customs Act as....