TaxTMI 
TaxTMI 
2014 (7) TMI 778
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....age of the Sailors or the crew members. The respondent No.1, namely, Shri Ebrahim Essa Sodh, was the Captain (tindle) of the vessel and 12 crew members were deployed at the relevant time on the said vessel. The officers of the customs went to the vessel and all the crew members including the respondent No.1 were called. The information received by the complainant was disclosed to them. However, the respondent No.1 and the crew members feigned ignorance about carrying such contraband gold. Thereafter, the country craft was searched on 8th, 9th and 10th May, 1987 by the customs officials in the presence of Panchas. Nothing was found on the vessel or in the luggage of the respondent or the crew members. The respondent was thoroughly interrogated and finally, he admitted that the contraband gold was carried in the vessel but he threw the said gold as soon as the vessel arrived at Hay bunder to avoid detection by the customs and also with a view that some gold could be retrieved later by him. He showed the area where he dumped the gold in the sea. The customs officials carried out combing operation in the area of the sea where the gold was dumped as per the information of the respondent....
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....Punjabi should have been accepted fully by the learned Judge. PW1 Akhilesh Kumar had received the information respect of the vessel msv Raiendra Jyoti that it was carrying contraband gold. On receipt of the information on 6.5.1987, immediately he alongwith the other customs officer went to the vessel and they carried out the examination of the vessel so also they interrogated the respondent and other crew members. She argued that in searching interrogation of the respondent, ultimately, he made statement disclosing that he threw 53 gold bars in the sea. The leaned Counsel submitted that pursuant to this information, gold was actually recovered. The fact of recovery was sufficient to prove guilt against the respondent. The seizure was made under panchanama, which is marked at exhibit P1 and also exhibit P2. She further submitted that the evidence of PW2 Narendrakumar Punjabi, who corroborated fully with the evidence of PW1 Akhilesh Kumar should have been given weightage completely in favour of the prosecution while assessing his evidence. Both the witnesses have stated that in the first attempt, initially they found 48 gold bars in the tin container on 10.5.1987 and thereafter as fi....
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....ter they signed the statements. He submitted that the prosecution failed to examine the said witnesses and available evidence was kept back and, therefore, adverse inference against the prosecution is to be drawn. He submitted that there are number of inconsistencies in the evidence and irregularities in the seizure panchanama. He submitted that the tin container, in which gold was found and which was seized, the signatures of the panchas were not appearing on it. The panchanama is doubtful. 7. The learned Counsel further submitted that on 7.5.1987, there were many vessels standing in Hay Bunder and the contraband which was found, was 20' to 25' away from the said vessel Rajendra Jyoti. He submitted that the possibility that somebody from the other vessel might have thrown the gold in the sea and the customs after getting this information out of suspicion interrogated the crew members and the respondent. The respondent was in the custody of the customs officer for nearly 4 to 5 days and, therefore, the possibility that he giving confessional statement out of pressure or harassment, cannot be overruled. He argued that the said statement, though admissible under the Customs Act, h....
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....or the prosecution to prove beyond reasonable doubt that the recovery was made at the instance of the accused. This is to be established on the basis of the other independent and distinct evidence which can be relied and accepted safely by the Court. In the present case, only one panch is examined, who is the only independent witness who did not support the prosecution and hence, the contents in the panchanama i.e., P1 and P2 were not reliably proved. In the present case, the learned Prosecutor has raised a legal point of evidentiary value of the statement recorded by the customs officer u/s 108 of the Customs Act. In fact, this issue is not a res integra in view of the different judgments of the Supreme Court and the various High Courts. 10. In the case of K.I. Pavunny vs. Asstt. Collector (HQ), CE Collectorate, Cochin (supra), it is held that there is no prohibition under the Evidence Act to rely upon a retracted confession to prove the case of the prosecution and to make the same as the basis for conviction of the accused. So also it is not necessary that there should be corroboration from the independent evidence adduced by the prosecution to corroborate each detail containe....
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.... 14. In State of Maharashtra vs. Hasmukh Hargovind Shah 1993 CRI.L.J. 1953, a learned Single Judge of the Bombay High Court had an opportunity to deal with the evidentiary value of the statement made to the Customs Officer under section 108 of the Customs Act. It was observed that while recording statements under section 108, the accused should be warned that the statements would be liable to be used against him and that he should be put on notice. One needs to bear in mind that there is a possibility of coercion or inducement while recording statement under section 108. 15. Thus, the statement under section 108 is admissible and it can be relied also. However, if at all it is retracted, then, weightage can be given to it only if there is corroboration on other material particulars, In the present case, as the panchas did not corroborate and the prosecution did not examine the other panch, that material evidence collapsed. Moreover, as per the evidence of the PW1 Akhilesh Kumar and PW2 Narendrakumar Punjabi, the statements of the 12 crew members were recorded. However, in the cross-examination, PW1 Akhilesh Kumar has admitted that to his knowledge, there was no other crew member....