TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 465
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....2014 - Satish Kumar Vs. Commissioner Customs, Lucknow, whereby confiscation order as well as penalty order has been set aside on the ground that the appellant has not been able to discharge burden of proof as enshrined under Section 123 of the Act, 1962 and further that confiscated Gold has been directed to be redeemable to Shakil Ahmad Khan on payment of duty and redemption fine of Rs. 5,00,000/-. The aforesaid appeals have been preferred on the following substantial questions of law :- "1. Whether the CESTAT is correct in setting-aside the Order-in-Original No. 07 / Commissioner / LKO / 2013, Dated 05.08.2014, passed by the Commissioner, Customs (Preventive), Lucknow and allowing appeal of the respondent, vide impugned Final Order No. C/A/70944 - 70946/2018 - CU (DB) dated 22.05.2018, contrary to the law laid down by Hon'ble Supreme Court of India in the matter of Commissioner of Customs, Madras Vs. D. Bhoormull reported in 1983 (13) ELT 1546 (SC)? 2. Whether statement given by instant respondent (Shakil Ahmad Khan) during investigation (at least thrice on 27.11.2013, 20.12.2013 and again on 13.01.2014), that the seized gold was given to him by Shri Satish Kumar and Mrid....
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....ness of gold and silver ornaments but he was not engaged in procuring foreign origin gold. Mridul Agarwal has expressed his ignorance about the gold recovered from Shakil Ahmad Khan. His statement was recorded on 05.12.2013, in which he has stated that he knew Shakil Ahmad Khan as artisan of jewellery and he used to make jewellery and do repair works for him except to that he had no relation with him. He had not handed over any gold to Shakil Ahmad Khan and had no connection with the seized foreign original gold. Shakil Ahmad Khan had falsely named him as he was not engaged any in any illegal work of smuggling. He further asserted that he had given some jewellery to Shakil Ahmad Khan few days back for repairing but he was not returning the same for which he had scolded him badly and probably for that reason in anger Shakil Ahmad Khan had implicated him in the case. According to the records, summons under Section 108 of the Act, 1962 were issued on 27.11.2013 to Shakil Ahmad Khan, in compliance of which his statement was recorded, wherein he reiterated earlier version. Shakil Ahmad was subsequently arrested under Section 104 of the Act, 1962 on 27.11.2013 and was produced before t....
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....ence of forcible coercive action while recording statements under Section 108 of the Act, 1962. At this point of time, it is also admitted that independent witnesses before whom the said statement was recorded were never examined by any of the authorities nor was their statement recorded which could prove that confessional statements were recorded out of free will and without any coercion. The Tribunal in paragraph 19 of its judgment has observed as under : "19. Having considered the rival contentions and after going through the record, we find that Gold is not a prohibited item and can be imported upon payment of duty. Further, it is a case of town seizer and the customs officers have seized the Gold on the suspicion of smuggling, without there being any actual evidence of smuggling. We find that the whole case of revenue is based on the retracted statement(s) of appellant S.A. Khan and father of the other appellant Shri Mridul Agarwal. We further find that these persons are not examined in the adjudication proceedings and as such their statements are not admissible, as evidence under the provisions of Section 138B of Customs Act, which provides that - if an authority in any pr....
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....ession of stolen property", though the latter is only a presumption of fact- Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice." In the present case entire prosecution is based on the confessional statement given by Shakil Ahmad Khan before the Customs Officers under Section 108 of the Customs Act 1962. Shakil Ahmad Khan subsequently retracted his statement and denied his involvement in movement and/or smuggling of said gold. He further stated that on 27.11.2013 he was going to Lucknow for the treatment of his wife Mrs. Tajni Begum. At Ramnagar Railway Crossing, the Customs Officers checked the bus and asked every passenger about a black packet. The officers asked about his profession, when he told that he is a gold artisan, the Officer dragged him, alleging that the gold be....
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....at 155 and laid down as under: "Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King. "It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities." They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of ot....
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.... 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with ....