TaxTMI 
TaxTMI 
1997 (2) TMI 97
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.... on December 6, 1980, 200 gold biscuits of foreign marking were recovered from the compound of the appellant's house in his presence after digging got done by the Customs official, PW-2, T.K. Rajasekaran, Superintendent of Customs, and PW-5 N. Gopalan Nambiar, Inspector and two panch witnesses, PW-3 and another. The same were kept concealed in a wooden box burried in the ground visible through the window of his bed-room. The appellant gave, in his own handwriting, confessional statement, Ex. P-4, at 1.00 p.m. on the said date before the Customs officials. In the proceedings for confiscation, 200 gold biscuits, since unclaimed, were confiscated. But the imposition of penalty was set aside which became final. Thereafter, the complaint was filed by PW-1, the Collector of Customs on May 15, 1982 and it was refiled on January 1, 1985. The appellant was apprehended on June 19, 1982 and was released on bail. The prosecution case hinges upon the retracted confessional statement, Ex. P-4, the recovery proceedings, Ex. P-3 and evidence of witnesses, PWs-1 to 5 for proof of recovery of the contraband from the compound of the appellant's house. The Magistrate by his judgment dated Marc....
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....sed only to corroborate other independent evidence which should inculpate the appellant in the commission of the offence. On proof of those facts, the retracted confession could be used as evidence corroborative to satisfy the conscience of the Court that the prosecution has proved its case beyond reasonable doubt from other evidence on record. In support thereof, he placed reliance on Kashmira Singh's case and Chandrakant Chimanlal Desai's case. In support of his contention that Customs officers, PW-2 and PW-5 are persons in authority under Section 24 of the Evidence Act, he cited Vallabhdas Liladhar & Ors. v. Assistant Collector of Customs - 1983 (13) E.L.T. 1408 (S.C.) = (1965) 3 SCR 854. He further contended that the moment the Customs Officer had taken the appellant into custody, he had become a person accused of the offence and that the confession made during the custody, obtained by coercion and threat of implication of his wife into the crime was not voluntary and consequently Ex. P-4 is not admissible in evidence under Section 24 of the Evidence Act. In support thereof, he placed reliance on State of U.P. v. Deoman Upadhyaya - (1961) 1 SCR 14. The adduction of evid....
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....rticular on question of law, to Counsel who have experience and ability in that branch of law to defend their cases. Lest it is public justice that suffers and economy of the country is put to jeopardy. Unfortunately, the Counsel did not make any effort to analyse the provisions of the Act nor did he make investigation into question of law from the decisions rendered by this Court. At this juncture, it is further relevant to point out that when the Union of India has its panel of Counsel, they should see to it that work is assigned to the Counsel who can competently argued the case in that behalf lest, for lack of assistance, investigation and marshalling the questions of fact and law, public justice tends to suffer. We would greatly appreciate the Counsel appearing for the appellant who placed for consideration all aspects of the case on law and facts. It is, therefore, for the Secretaries of the Department of Law & Justice and Finance to look into the matter and set their house in order; equally, the Attorney General of India should also see that the affairs in the Central Agency in the Supreme Court are organised accordingly. We have pointed out all this only to express our deep....
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....s given by the appellant, admittedly, in his own hand-writing, (Ex. P-4 being the English translation thereof) on the even date or when he was summoned by PW-2 and PW-5 to the Customs office on the same day? Section 108(1) of the Act empowers any Gazetted officer of Customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods. The person so summoned has an opportunity of locus penitentiae to give true and correct statement and also an opportunity to reflect upon and tender the evidence, be it recorded or given in his own hand-writing. Under sub-section (3), all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct, and to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required. However, by operation of the proviso to sub-section (3), exemption under Section 132 of the Code of Civil Procedure, 1908 shall be applicable to any requisition for attendance under the said ....
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....ficer is not a police officer nor is he empowered to file charge-sheet under Section 173 of the Code though he conducts enquiry akin to an investigation under some of the provisions of the Code. His acts are in the nature of civil proceedings for collecting evidence to take further action to adjudicate the infringement of the Act and for imposition of penalty prescribed thereunder which would be self-evident from sub-section (4) of Section 108. 9.The question then is : whether the appellant is a person accused of an offence within the meaning of Section 24 of the Evidence Act? The question is no longer res integra. It is seen that the connotation of the words "person accused of the offence" under Section 24 of the Evidence Act is generally referable to initiate investigation of cognisable offence in Chapter XII of the Code of 1894 and the Code (sic). It is not necessary, for the purpose of this case, to undertake elaborate consideration as to when the person becomes a person accused of an offence under the Code. Suffice it to state that in a reasoned judgment, a two-Judge Bench of this Court elaborately considered this question in Directorate of Enrforcement v. Deepak Mahajan & ....
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....of the offence under the Act when he gave his statement under Section 108 of the Act on December 6, 1980 at 1.00 p.m. in the office of the Superintendent of Customs, PW-2. The question then is; as to when the appellant became an accused of the offence? This Court in Veera Ibrahim v. The State of Maharashtra 1983 (13) E.L.T. 1590 (S.C.) = (1976) 2 SCC 302 had held in Para 9 that an accusation which would stamp him with the character of such a person was labelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the Commission of the offences under Section 135(A) and Section 135(B) of the Act. In that case the appellant was initially arrested by the police on December 12, 1967 on suspicion of having committed an offence under Section 124 of the Bombay Police Act and panchnama of the packages in the truck was also prepared. But the police did not register any case or enter any F.I.R. nor did the police open the packages or prepare inventories of the goods packed therein. They dropped further proceedings but informed the Customs authorities, who opened the packages and on inspection finding them contraband goods, seized them under a panc....
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....n in the interest of the revenue of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. The Customs staff has merely to make a report in relation to(2) offences which are to be dealt with by a Magistrate. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. The powers of search etc. conferred on the Customs Officers(3) are of a limited character and have a limited object of safeguarding the revenues of the State and the statute itself refers to police officers in contradistinction to Customs Officers. If a Customs Officer takes evidence under Section 171A and(4) there is an admission of guilt, it will be too much to say that that statement is a confession to a police officer as a police officer never acts judicially and no proceeding before him is deemed to be a judicial proceeding for the purpose of sub-sections 193 and 228 of the Indian Penal Code or for any other purpose." 12.In that case when the confessional statements were sough....
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....ges considered the question whether by reason of the recording of the evidence during the course of the inquiry under the Act the statement would be construed to be compulsive statements emanating from persons in authority so as to become inadmissible under Section 24 of the Evidence Act. In Para 20 of the judgment it was held that it was not disputed that PW-5 who recorded the confession, was a person in authority within the Act. But the question was whether, when PW-5 drew the attention of the appellant to the fact that the Inquiry was a judicial proceeding to which Section 193, I.P.C. applied and that the appellant was bound to speak the truth, it could be considered to be a threat, inducement or promise emanating from a person in authority under the section. In Para 24 it was considered and held that "a person summoned under Section 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanated not from the officer who recorded the statement, but from the provisions of the statute itself. W....
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....threat emanates from and is that of the statute and the officers merely enforced the law. The allegations as to threat of implication of his wife was an afterthought and he did not mention the same when he appeared before the Magistrate and obtained bail. 15.In Poolpandi etc. etc. v. Superintendent, Central Excise and Ors. etc. etc. - 1992 (60) E.L.T. 24 (S.C.) = (1992) 3 SCR 247 a three-Judge Bench was to consider whether the appellant therein was entitled to the presence of a Counsel at the time of recording of his statement under Section 108 of the Act. In that context, this Court considered the ratio of Romesh Chandra Mehta's case and Illias case (supra) and held that "just, fair and reasonable test" could not be extended to a person whose statement was required to be recorded under Section 108 of the Act and the failure to give Counsel's assistance is not violative of either Article 21 or Article 20(2) or Article 20(3) of the Constitution. In that context, it was further held at page 247 that the purpose of inquiry under the Act and other similar statutes "will be completely frustrated if the whim of the persons in possession of useful information for the Department....
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.... that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to take proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence Act. Though the authority/officer on suspecting a person of(1) having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. (2) He becomes accused of the offence under the Act only when a [complaint] is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence and summons are issued. Thereafter, he becomes a person accused A statement recorded or given by the person suspected ofof the offence. (3) having committed an offence during the inqui....
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....at his wife will be implicated in the crime and accordingly disbelieved his plea. It is seen that admittedly after the appellant gave his statement, he was produced before the Magistrate though no complaint was filed and was released on bail. He did not complain to the Magistrate that Ex. P-4 statement was given under inducement, threat or duress. It was raised only subsequently making accusations against PW-5, the Inspector of Customs. Therefore, obviously it was only an afterthought. The High Court, therefore, rightly has not given any weightage to the same. It is true that the Magistrate has given various reasons for disbelieving the evidence of PW-3, the panch witness who had also, at one point of time, indulged in smuggling. It is unlikely that PW-3 would bring 200 gold biscuits of foreign marking and conceal them in the compound of the appellant without appellant's knowledge for safe custody. It is not his case that he had facilitated PW-3 in concealing them in his compound. The place of concealment of the contraband is also significant at this juncture. It is just near and visible from the window of his bed-room through which he or family members could always watch anyon....
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.... of Punjab - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the ....
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....n the confessional statement requires to be corroborated separately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh's case was referred to. 22.In Hem Raj v. The State of Ajmer - 1954 SCR 1133 a three-Judge Bench to which Bose, J. was a member, was to consider whether retracted confession of an accused could be corroborated from the material already in the possession of the police prior to the recording of the confession. Therein the confession was recorded under Section 164 of the Code during the committal proceedings but at the trial it was retracted. This Court held that the evidence already on record of the police could be used to corroborate the retracted confession. 23.In Haricharan Kurmi & Jogia Hajam v. State of Bihar - AIR 1964 SC 1184 a Constitution Bench was to consider as to when the confession of a co-accused could be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co-accused cannot be treated as substantive evidence. If the Court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deducible from the said evidence,....
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.... adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base confiction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. 26.In Naresh J. Sukhawani v. Union of India - 1996 (83) E.L.T. 258 (S.C.) = 1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein cou....
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....ted under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve. 27.In Harroom Hai Abdulla v. State of Maharashtra - AIR 1968 SC 832, for the offence of conspiracy punishable under Section 120B of IPC and Section 171A of the Sea Customs Act, the question arose whether the confession of co-accused who died pending trial just before delivery of the judgment, could be used against a co-accused? This Court considered the evidence of an accomplice together with the statements of two accused recorded under the Act, viz., one Bengali and another Noor Mohammad. How and what evidence could be relied upon against the other accused was the question. One of the accused who gave the evidence was an accomplice. In that case, it was held in Para 9 of the judgment that the "argument here is that the cautionary rule applies, whether there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice". On consideration of the evidence, this Court had held in Para 13 that the "Customs authorities served notices upon various suspects and recorded their statements in answer to these notices. The st....
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....gulation Act. It was held that mens rea is not an essential ingredient to establish contravention under Sections 10(1) and 23(1)(a) of that Act. It is not necessary in this case to broach further whether mens rea is an essential ingredient for proving the commission of the offence under Sections 135 of the Act or Sections 85 and 86 of the Gold (Control) Act since none has raised such contention. What is required to be considered is whether voluntary statement, Ex. P-4 given by the appellant constitutes sole basis to prove the commission of the offence under Section 135(1)(i) of the Act. 29.Deoman Upadhyaya's case (supra) relates to a statement recorded under Section 27 of the Evidence Act. The respondent therein was held to be a person accused of offence of commission of crime. The respondent subsequently turned out to be the accused. Therefore, the Constitution Bench held that person who gave the statement to the police officer investigating into the offence and also gave information leading to the discovery of the contraband, on those facts, must be deemed to have surrendered himself to the police and that he being in the custody, gave the statement leading to discovery of....
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....t Ex. P-4 is a voluntary and true confessional statement and accordingly it convicted the appellant of the offences. It is seen that Ex. P-4 was given in furtherance of the statutory compulsion and the appellant made statement in unequivocal terms admitting the guilt. It is seen that in Barkat Ram's case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhar's case and also in Rustom Das's case the retracted confessional statement found basis for conviction and in the latter the recoveries were relied as corroborative evidence. In Haroom Abdulla's case, this Court used the evidence of co-accused as corroborative evidence. 32.It is true that in criminal law, as also in civil suits, the trial Court and the appellate Court should marshal the facts and reach conclusion, on facts. In a criminal case, the prosecution has to prove the guilt beyond doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt of a doubting Thomas or of a weak mind is not the road to reach the result. If a Judge on objective evaluation of evidence and after applying relevant tests reaches a finding that th....