TaxTMI 
TaxTMI 
2023 (12) TMI 451
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....rnational Airport on 13.07.2015 on Emirates Flight EK 534 from Dubai. He had with him two pieces of hand baggage. At the exit gate of the airport terminal, he was intercepted and found in possession of a customs declaration form duly filled in, with the column for declaration of Gold Jewellery (Over Free Allowance) encircled. Prosecution alleged that when the accused was questioned on whether he carried any dutiable goods, he replied in the negative. However, since the X-ray showed a dark image in his coat pockets, a search was conducted, which revealed that he carried a gold bar in each of his pockets. There were ten gold bars weighing 10 kg in total and worth Rs. 2,45,43,500/-. Later, the accused gave a statement under section 108 of the Act, confessing that he had engaged in smuggling the gold to India. He also stated that he had indulged in smuggling on 21 occasions earlier, thus committing the offences alleged. 4. Prosecution examined PW1 to PW10 and marked Ext. P1 to Ext. P12. On behalf of the accused, DW1 was examined. A court exhibit was marked as Ext. D1 produced pursuant to a summons and a warrant issued to the Jail Superintendent. Ext. D2 was also marked on the side o....
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....g trial. The learned counsel also submitted that none of the material objects, including the gold allegedly seized, were produced in court. Even the CCTV footage available with the prosecution was not produced, and therefore, the accused is entitled to the benefit of doubt. The learned counsel further submitted that the Green Channel and the Red Channel in the Customs area were not distinguishable, and even the place where the alleged seizure was effected was doubtful. It was also argued that the statements allegedly given under section 108 of the Act cannot be relied upon, as they were not true or even voluntary. 8. On a consideration of the rival contentions, the following main issues arise for consideration: (i) Has the accused retracted his statement given under section 108 of the Customs Act as per Ext. D1? (ii) Can the statement given by the accused under section 108 of the Act, produced as Ext. P8, Ext. P8(a) and Ext. P8(b) be relied upon?, (iii) Has the accused admitted the commission of offence? and (iv) Does the judgment of acquittal of the accused warrant any interference? 9. Before considering the issues mentioned above, it is necessary ....
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....of the marking cannot detract from the evidentiary value of the document. 12. Bearing in mind the above legal principles regarding the scope of interference in an order of acquittal, the issues raised earlier are dealt with as below. Issue No. (i). Has the accused retracted his statement given under section 108 of the Customs Act as per Ext. D1? 13. Ext. P8, Ext. P8(a) and Ext. P8(b) are the three statements given by the accused under section 108 of the Act. The only material available to prove the claim of retraction is Ext. D1. The prosecution had not objected to the marking of Ext. D1 document at the time of trial, though they were aware of its production. Ext. D1 was marked in evidence after it was produced by the Jail Superintendent along with a covering letter, pursuant to a summons issued by the trial Court seeking its production. The objection against its marking and admissibility is raised for the first time before this Court in appeal. 14. As per section 294(3) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), where the genuineness of any document is not disputed, such a document may be read in evidence without proof of the signature of the pe....
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.... [(2016) 15 SCC 485], it has been observed that the object of S.294 Cr.P.C is to accelerate the pace of trial by avoiding the time being wasted by the parties in recording the unnecessary evidence. It was further observed that where the genuineness of any document is admitted or its formal proof is dispensed with, the same may be read in evidence. The Court also held that it is not necessary to obtain admission or denial of a document under S. 294(1) Cr.P.C personally from the accused or complainant or the witness and that the endorsement of admission or denial made by the counsel for the defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of S. 294 Cr.P.C. Similarly on a document filed by the defence, endorsement of admission or denial by the Public Prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. If in case it is admitted, it need not be formally proved, and can be read in evidence. 17. It is settled that objections to the mode of proof fall within the procedural law; therefore, such objections can be waived. It is also settled that the objectio....
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....erging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as 'exhibit' at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding" 20. In the instant case, Ext. D1 was produced from the Official custody, pursuant to summons. The contents of Ext. D1 have not been spoken to by anyone. The person who signed the document or, who received the document, or in whose custody it was kept, has not been examined. The only circumstance that stands proved is that a written document was handed over to the prison authorities while the accused was in custody. 21. In the decision in PRS Hospital's case (supra), it was held that there are four stages before a Court of law can rely upon a document. They are ....
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....al court having recorded any evidence or conducting a trial." 23. This Court is in complete agreement with the above view. The court has a duty to appreciate whether the statements under section 108 of the Act, relied upon by the prosecution as a confessional statement, meet the standard test of reliability. If the court doubts the truthfulness or its voluntary nature, it is certainly open for the court not to rely upon such a statement. 24. A statement under Section 108 of the Act is voluntary when the admission of guilt has been made, without any external influence or force that would have compelled the person giving the statement to accept his guilt. The reliability of the evidence of a confession in a criminal proceeding is to be assessed by the court by considering various factors that surround the mode and manner in which such a confession was given. The first step in that process is to assess whether the confession was made voluntarily and the next is to identify whether the confession is true and trustworthy. For a confession to be accepted by a court of law, the prosecution must prove that it is trustworthy to a high degree of certainty. The normal requirements for p....
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.... the accused (Q.) Yes (A.). You must have noted that the accused has retracted his statement in the bail application (Q.) Yes, he has not filed any retracted(sic) and given any statement before the Customs authority (A.). It is significant to note that the accused had a case that, at the very first opportunity itself, he had retracted the statement in his bail application and also submitted a letter to the prison authorities to be forwarded to Customs, retracting his statement given under section 108 of the Act. Though the contents of the document produced by the Jail Authorities and marked as Ext. D1 has not been proved in evidence; still, the admission of PW9 in his evidence that the accused had retracted his statement in the Bail application is a significant factor that affects the credibility of the statement under section 108 of the Act, in the light of the suspicious circumstances surrounding those statements. 27. As per section 3 of the Indian Evidence Act, 1872, a fact is proved only when the Court believes its existence so probable that a prudent man ought, under the circumstances of the particular case, act upon the supposition that it exists. In the nature of the circ....