TaxTMI 
TaxTMI 
2016 (3) TMI 472
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....n sentence dated 14.08.2002 passed by the learned Additional Chief Metropolitan Magistrate, awarding the sentence to the petitioners to undergo rigorous imprisonment for a period of three years and a fine of Rs. 1,000/- each for offence under Section 135(1)(a) of the Customs Act and in default of payment of fine to further undergo simple imprisonment for 1½ years and upholding the judgment of conviction and sentence by the learned Additional Sessions Judge vide judgment dated 14.08.2007, the present revision petitions have been filed by the petitioners. 3. Factual matrix, as emerges from the record, is that on 05.02.1990, the complainant Sh. A.K. Gandhi and Sh. A.K. Dikshit, ACO were keeping surveillance inside the aero-bridge at bay No.42 of IGI Airport. Flight No.KLM 836 had landed and they noticed that the petitioner Ajit Singh handed over a small packet to the petitioner Om Prakash. The petitioner Om Prakash was apprehended along with the packet and then he was taken to the international arrival hall. There he identified the petitioner Ajit Singh who was standing in the queue before the immigration counter. In the presence of the petitioner Ajit Singh and two witnesse....
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....dence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused, as such a statement made by him would be prejudicial to his interest." 9. It was further argued by the learned Senior Advocate that the alleged confessional statement made by the petitioner Om Prakash under Section 108 of the Customs Act to the Custom Officer Sh. A.K. Gandhi was later retracted by him and thus, it cannot be used in evidence against him. In support of this contention, learned Senior Advocate placed his reliance on the landmark judgment of Pakala Naraya....
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.... later on, then it must be corroborated by other evidences and materials on record. In the present case, confessional statement made by co-accused/petitioner Ajit Singh cannot be used against another accused/petitioner Om Prakash as observed in Bal Mukund (supra). It is apparent from the record that the petitioners retracted their alleged confessional statements recorded under Section 108 of the Customs Act. The MLC Ex.PW1/DA of petitioner Ajit Singh shows that he was medically examined on 16.02.1990. As per his MLC, he was having partially healed abrasion over his right forearm, abrasion over right buttock, recently healed abrasion on lower inner aspect of left arm, pain in spine, forearm, healed abrasion over left forearm. The doctor opined that the above injuries were of 10-12 days duration. This MLC Ex.PW1/DA creates doubt about the case of the prosecution that the petitioner Ajit Singh made voluntary statement under Section 108 of the Customs Act and for this reason it cannot be used against him as observed in Pakala Narayana Swami (supra) and Noor Aga (supra) and also it cannot be used against co-accused/petitioner Om Prakash. Even otherwise, there is nothing incriminating ag....
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....ons although they were cited as witnesses in the list. The non-examination of the abovesaid independent public punch witnesses by the prosecution was a very material lacuna in this case, therefore, benefit of doubt goes in favour of the accused." 16. It is also matter of record that the purity certificate has been proved on record by Sh. A.K. Gandhi (PW1) as Ex.PW1/D. The perusal of panchnama Ex.PW1/C prepared at the spot shows that the name of goldsmith is not mentioned therein. In the certificate, it is only mentioned that a certified goldsmith was called who certified the recovered substance as gold and gave purity certificate. In the list of witnesses, the name of the goldsmith has been given as Sh. Kuldeep Sugandh. But the fact remains that the said goldsmith was never produced in the Court to prove the alleged purity certificate Ex.PW1/D. In the considered opinion of this Court, mere producing the document on record and marking as exhibit does not prove the contents of a document in the absence of author of the document. This view gets strength from the ratio of judgment in case of Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam @ Satteyya & Ors. MANU/SC/0022/1971 in w....
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....se of the prosecution that one gold bar weighing 1 kg and one gold biscuit were recovered, but neither the said gold bar nor the gold biscuit was produced in the Court for identification. No explanation has come on record as to why the recovered gold was not produced for identification. 18. In Noor Aga's case (supra), it was observed as under : "132. The last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin were also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. 135. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts....