TaxTMI 
TaxTMI 
2025 (5) TMI 2145
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.... Officers, as he tried to flee and hit into Mr. Duli Chand, Customs Head Constable. The Respondent was over powered by the Officers of the Petitioner Department. 3. The gold biscuits were found to bear Swiss markings and weighed 2.819 Kgs. The search of the person of the Respondent resulted in recovery of a cloth belt which had been tied to his waist under his trousers. The belt had a pocket stitched to it, which was intended to be used for concealing the gold biscuits. The incriminating articles were seized. 4. The Respondent in his Statement under Section 108 Customs Act, 1962 admitted the recovery and seizure of gold biscuits. He deposed that he was to pick up these gold biscuits and deliver them to one Bhagirath, who was waiting outside. When the Respondent was taken to the parking for identification of Bhagirath, neither Bhagirath nor his Agent or vehicle was traced. The Respondent did not retract his Statement under Section 108 Customs Act at the first available opportunity and it remained free from blemish and has a presumption of being truthful and correct. 5. The Petitioner Department examined nine witnesses in all. PW4/Smt. Sudesh was the sweeper who had found th....
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....fessional statement recorded by reason of statutory compulsion or given voluntarily by the accused person pursuant to his appearance against summons or on surrender cannot be said to have been obtained by inducement of promise. 13. Similar observations have been made in M. Prabhulal vs. Assistant Director, DRI (2003) 8 SCC 449; Ravinder Singh @ Bittu vs. State of Maharashtra 2002 (2) JCC 1059 (SC); A.K. Mahboob vs. IO, NCB JT 2001 (1) SC 614; Pon Adithan vs. Deputy Director, NCB, Madras 1999(2) JCC (SC) 335; Kalema Tumba vs. State of Maharashtra JT 1999 (8) SC 293; F. Mario Pires vs. Directorate of Enforcement, New Delhi, 1982 Cr.L.J. 461 Goa and Triveni Prasad vs. State of Maharashtra AIR 1976 SC 2156. 14. It is further submitted that retraction of the Statement by the Respondent was not sufficient for it to be not admitted in evidence. Reliance has been placed on Surjeet Singh vs. UOI AIR 1997 SC 256; K.T.M.S. Mohd. & Anr. vs. UOI 1992 SCC (Cr.) 572; Shankaria vs. State of Rajasthan AIR 1978 Supreme Court 1248; Ruiz Guerrero Dolores vs. Customs, 2000 (2) JCC (Delhi) 357; Hem Raj Devi Lal vs. State of Ajmer, AIR 1954 SC 462 (SC). 15. Furthermore, in addition to the Statem....
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.... 20. It is further contended that no Sanction under Section 197 Cr.P.C was required as the act of smuggling gold is not an act in discharge of official duties. It is further submitted that minor discrepancies and contradictions could not have been given over emphasis to give the benefit to the Respondent. 21. It is, therefore, submitted that the Appellant was able to prove their case beyond reasonable doubt and no benefit could have been extended to the Respondent. 22. The Learned Counsel on behalf of the Respondent has sought to argue that the present Appeal is not maintainable, as an appeal cannot be preferred merely because it is not to the liking of the litigant. 23. He has argued that the when the Respondent has been exonerated in the Departmental Enquiry itself, the criminal trial on the same evidence and testimony of same witnesses is not maintainable, for which reliance has been placed on Ashoo Surendra Nath Tiwari vs. The Deputy Supdt. of Police, EOW, CBI & Anr., (2020) 9 SCC 636. The Respondent has been found to not have committed any offence under the Customs Act 1962 by the Central Govt. vide Order dated 26.06.2008. 24. It is submitted that the Appeal could....
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....isting and tried to run away. In the process, he gave beatings to Shri Duli Chand, a Customs Hawaldar on duty. However, he was overpowered by the Customs Officers and was escorted along with the witnesses and the packet, suspected to contain some metal to Counter No. 15 inside the Arrival Hall. 32. The packet on weighing was found to be 2.819 Kg. Thereafter the Respondent and the witnesses along with the packet were taken to Preventive room, situated in Arrival Hall, where personal search of the Respondent was conducted, wherein one cloth belt with bleached white cloth packet stitched over it, which was tied over the waist, under the pant was recovered from the Respondent. On questioning, he admitted that the packet was to be handed over to a person Bhagirath outside the Departure Hall. 33. The packet on examination was found to contain 24 pieces of biscuits of yellow metal with foreign markings. A certified Goldsmith was called who tested the purity of the gold biscuits and opined them to be of 24 cts purity and valued it at Rs. 13,02,000/- collectively. The gold biscuits and the cloth belt with pocket stitched over it, the Identity Car, PIC Card and name plate of the Respon....
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....of whom he had to come back. Bhagirath offered Rs. 10,000/- to Rs. 20,000/- more to him to bring back the gold. 38. The Respondent came back and told the lady about the gold packet which was left there, but she told him that there was nothing. He told her to check inside for which he kept on pushing her, but she did not allow him and turned down his requests. At that time, Customs Officers reached there and started an enquiry from him. He called two witnesses and took into possession the packet, which was lying below the wash-basin. He tried to run away from the spot and had a scuffle with Hawaldar. He along with the witnesses and customs Officers came to Counter No.15, where the packet was weighted as 2.819 Kg gross and he was taken to the side room of the Customs Hall and his personal search was conducted. 39. He tried to run away but was over powered and taken to the Departure and in the Parking Area for identification of Bhagirath, his men and vehicle No. DBC 9238/9248, but neither Bhagirath nor the passenger or the vehicle could be found. The packet was opened and examined by the goldsmith and was found to contain gold biscuits which were seized. 40. The Charges under....
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....ld accompany him for which he would give the money. She further denied that the person who was wearing brown sweater, who had come earlier to remove the brown bag, had again tried to run away and there was a scuffle with the Customs Officers. 43. PW4 Smt. Sudesh admitted her signatures on the Panchnama Ex.PW2/A, but denied its contents. She also denied that she had identified said person in the presence of the Customs Officers. She also failed to identify the Respondent as the same person who had been identified by her in the Panchnama Ex.PW2/A or who is referred to in Ex.PW5/B. 44. In her cross-examination on behalf of the Respondent, she further deposed that she was illiterate and only knows how to put the signatures. When she was called to sign Ex.PW5A and ExPW3/B, these documents were already written and she was made to sign them without being told about their content. 45. The entire case of the Prosecution was that while the Respondent was making an endeavour to take the packet from the toilet for handicap persons, he was apprehended. It is pertinent to observe that PW43/Smt. Sudesh who is the most important witness, had denied that Respondent had earlier visited the ....
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....s Act that was made by the Respondent, wherein he admitted the recovery and seizure of the gold. He further stated that he had to pick up the recovered gold and to deliver it to one Bhagirath, but when he was taken to the Parking Area, neither Bhagirath nor the vehicle were traced. 50. The truthfulness of the Statement under Section 108 Customs Act made by the Respondent could have been fully tested either by recovery of the vehicle, the number of which was disclosed by the Respondent or by tracing Bhagirath, who was allegedly the master mind behind the smuggling of gold. Clearly, no investigations on this aspect were conducted. 51. Another significant aspect is that PW8/Sh. Mohinder Singh and PW9/Shri Ram Chander the two independent public/Panch witnesses also did not support the case of the prosecution. They also deposed that they had been called by the Custom officers for getting their signatures on some papers, which were already prepared. Pertinently, the two witnesses admitted their signatures on their respective Statements under Section 108 Customs Act, but were consistent in deposing that they were only made to put their signatures on the documents. 52. The learned....