TaxTMI 
TaxTMI 
TaxTMI 
2013 (11) TMI 859
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....oms, Amritsar, PW4 are that on 20-7-92 they alongwith other police officials were holding a Naka near the bridge of Beas river, opposite a school on the G.T. Road, where at about 12 noon, a car bearing No.DNB-6254 came from the side of Beas. The car was signalled to stop. The car was stopped by its driver, accused Kashmir Singh. The Customs officials enquired about his identity from the driver, who disclosed his name. Two ladies namely Kashmir Kaur and Jit Kaur were sitting on the back seat of the car. Two gunny bags were lying at the back seat of the driver. The customs party enquired from the driver and the ladies as to what the bags contained. Kashmir Kaur, the accused disclosed that the commodity in the bags belonged to accused Baljit Kaur who was not present in the car. Kashmir Kaur also disclosed that Baljit Kaur was widow of Jarnail Singh resident of Kapurthala. On suspicion, the customs officials, brought the car and its occupants to the Customs House, Amritsar, where two independent witnesses namely Vikram Bhandari and Ashok Kumar were joined with the customs officials. Thereafter, the car was searched and poppy husk was recovered from the gunny bags. Poppy husk was weighe....
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.... property was deposited with H.K. Kaushik, Inspector, PW6 by Mohinder Singh Inspector Customs. Panchnama Ex.PF was also prepared. IPS Ahluwalia, PW5 deposited the case property in the Central Revenue Control Laborator, New Delhi, on 28-7-1992. He stated that so long as the case property was in his possession, it was not tampered with. D.L. Pasahan, retired Superintendent, Customs, PW7 stated that on 21 or 22.7.1992 he raided the house of Baljit Kaur who suffered her voluntary statement Ex.PW7/A. He also recorded statements of Varinder Kumar Ex.PW7/B and that of Tilak Raj Ex.PW7/C. House of accused Harbans Singh was also searched which yielded no recovery of any contraband, and a Panchnama mark A to that effect was prepared at the spot. Case property was produced before the learned Judicial Magistrate 1st Class, Amritsar, who recorded his order Ex.PW6/A that he found the case property to be intact. After completion of investigation, complaint against the accused was submitted by Mohinder Singh Inspector Customs PW3." 3. Accused-appellant Kashmir Singh was charged under Sections 15 and 25 of the NDSP Act, accused-appellants, Kashmir Kaur and Jit Kaur, were charged under Section 15 o....
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....customs house for some days, he was falsely implicated in this case. Accused- Kashmir Kaur and Jit Kaur @ Jeeto, also gave similar statements. Accused Harbans Singh pleaded that he was never arrested by the Customs officials and pleaded innocence. Baljit Kaur also pleaded innocence stating that she never gave any statement to the Customs Authorities. 6. After hearing learned counsel for both the parties and on the strength of material/evidence placed on record, the learned trial Court, acquitted accused, Harbans Singh and Baljit Kaur, whereas Kashmir Singh, Kashmir Kaur and Jit Kaur @ Jeeto , were convicted and sentenced, as detailed at the outset of this judgment. 7. Hence, the present appeal, which was admitted by this Court on 11.09.2000. 8. At the outset, the learned counsel for the appellants submits that appellant Nos.2 and 3, Kashmir Kaur @ Bheero and Jeet Kaur @ Jeeto, have since died. Accordingly, the present appeal qua appellant Nos.2 and 3, stands abated. 9. The learned counsel for the appellant, inter alia, contends that the prosecution has based its case solely on the basis of confession of the accused before the Customs Officer under Section 108 of the Customs Act....
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....wers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If be does, he will be a police officer." Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal [ILR (1884) 6 All. 509] to put a stop to the extortion of confession, by taking away from the....
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.... retracted confession is a weak evidence. The court while relying on such retracted confession must satisfy itself that the same is truthful and trustworthy. Evidences brought on records by way of judicial confession which stood retracted should be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon." [See also Babubhai Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268 ]. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras [(1999) 6 SCC 1], whereupon reliance has been placed by the High Court, this Court had used retracted confession as a corroborative piece of evidence and not as the evidence on the basis whereof alone, a judgment of conviction could be recorded. 28. There is another aspect of the matter which cannot also be lost sight of. A search and seizure or an arrest made for the purpose of proceeding against a person under the Act cannot be different only because in one case the authority was appointed under the Customs Act and in the other under another. What is relevant is the purpose for which such arrest or search and seizure is made and investig....
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....nce Act vis.-a- vis. Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar's case (Supra). The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga's case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with." 14. The essence of the above authorities, in the opinion of this Court, is that a retracted confessional statement made by an accused before the Customs Officer, alone is not enough to bring home guilt to the accused. It is required to be substantially corroborated by other independent and cogent evidence. It is admitted fact that the alleged confessional statements of the accused in the present case are retracted ones. Therefore, prosecution was required to prove its case by leading corroborative and cogent evidence. 15. In the instant case, the prosecution has not been able to connect the accused with the crime. As per the prosecution story, ....
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....ion of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114(e) of the Evidence Act, an adverse inference could be drawn. 41. In a case of his nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non- examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. Matter might have been different if the evidence of the Investigating Officer who recovered the material objects was found to be convincing. The statement of the Investigating Officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure to which we may now take note of." 17. In the instant case, PW-6, H.K. Kaushik, Inspector, Customs and Excuse, ....