TaxTMI 
TaxTMI 
2026 (2) TMI 854
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....d to contain foreign currencies valued at Rs.27,77,263/-.No explanation was given by A2 for the foreign currency in his possession, and hence the same was seized under Section 110 of the Act. 2.1. According to the complainant, A1 in his voluntary statement given under Section 108 of the Act on 17.4.1999, admitted seizure of the foreign currency and further stated that during the period from 1985 to 1993 he used to sell clothes, cosmetics on the footpath in Karol Bagh and from the year 1994 onwards he had been bringing foreign goods from Hong Kong, Dubai, Bangkok and then selling them for a profit in Delhi. In January 1999, he met accused no. 2(A2) who told him that the latter was working in the Immigration Department at Indira Gandhi International (IGI) Airport and told him that if he was ready to carry foreign currency from India to Hong Kong, he would be given a ticket as well as an amount ranging from Rs.15,000/- to Rs.20,000/-per trip. On 12.04.1999, when A1 arrived at the IGI airport from Hong Kong, he met A2 outside the airport and it was decided that on 16.04.1999 he would carry foreign currency worth Rs.25,00,000/- to Rs.30,00,000/- to Hong Kong for which A2 would pay hi....
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....introduced him to A1 and asked him if he could somehow deliver the packet to A1 in the security area. He was also promised a good amount by the said Ishwar Singh. 2.5. It was thus alleged in the complaint that all three accused had colluded together and, as part of the pre-arranged plan, brought the packet containing the foreign currency to the airport, knowing that there was a prohibition for exporting the same. Thus, they were alleged to have committed the offence punishable under Section 135(1)(a) of the Act. The complaint was filed by PW3, Preventive Officer, New Custom House, Mumbai, before the jurisdictional magistrate. Being a warrant case instituted otherwise than on a police report, the learned Magistrate proceeded to take evidence produced in support of the complaint under Section 244(1) Cr.P.C. and examined PW1 to PW3. Based on the testimony of PW1, 2 and 3, the trial court found grounds for presuming that the accused persons had committed the offence punishable under Section 135(1)(a) of the Act and hence proceeded to frame a charge against the accused persons under the aforementioned Section, which was read over and explained to the accused persons to which A1 and A....
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....the testimony of PW1 and the said statement has been corroborated by the confession statements of the co-accused and therefore, the trial court ought not to have rejected the materials on record and proceeded to acquit A2, goes the argument. 5.1. Per contra, it was submitted by the learned counsel for A2/respondent, that the latter has been falsely implicated in the case based solely on his retracted confession and the retracted confessions of his co-accused, which have not been corroborated by any other independent evidence. The Hon'ble Supreme Court in Union of India vs Balmukund JT 2009 (5) SC 45, has held that a person cannot be convicted solely on the basis of his retracted confession and the retracted confession of his co-accused without any corroboration. The panch witnesses to the panchnama of the alleged recovery of foreign currency from A1, was never examined by the complainant. In fact A2/respondent had moved an application for summoning the panch witnesses and he had also taken dasti summons for serving notice on them. However, A2/respondent was unable to serve the summons on them as they were unavailable at the given address. Further, PW1, who is alleged to have rec....
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.... who had brought A2 before him. PW1 also deposed that A1 had identified A2 and thereafter A2 had also produced his identity card. He denied the suggestion that the statement of A2 was not voluntarily made and that after releasing the actual culprit, the signature of A2 was taken in blank papers under pressure and coercion. PW1 also denied the suggestion that the copy of the statement of A2 had never been supplied to the latter. 8.2. PW2, Superintendent Customs, New Custom House, Mumbai deposed that he had issued Exhibit PW2A summons dated 17.04.1999 to A1 and in pursuance of the same A1 had tendered his statement, that is, Exhibit PW2/B. He also deposed that on the said day, A1 had given two supplementary statements which have been marked as Exhibit PW2/C and D. 8.3. PW3 deposed that he had been posted from June 1998 till July 2000 as ACO, IGI Airport, New Delhi. Exhibit PW3/A complaint, was filed by him before the jurisdictional magistrate on the basis of Exhibit PW3/B Sanction and authorisation. 8.4. PW3 deposed that on the intervening night of 16.04.1999 and 17.04.1999, while he was on duty at the airport, A1, who arrived at the airport for going to Hong Kong by flight ....
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....Section 108 of the Act. That material would incriminate the person making inculpatory statement regarding the contravention of the provisions of the Customs Act. Such a statement made by one accused can certainly be used to connect the co-accused if the statement of the former clearly inculpates not only himself but also the latter. It can, therefore, be used as substantive evidence for proving the offence. 10. However, the learned counsel for the respondent relies on the dictum of a three-judge bench decision of the Apex court in Union of India v. Balmukund, 2009 KHC 4414. In the said case, the Apex court did not agree to the proposition laid down in Naresh J. Sukwani (supra). It was held that no legal principle had been laid down in the said decision and that no reason had been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Indian Evidence Act, 1872 (the Evidence Act) being not applicable, there are no other provisions under which such a confession would be admissible for making the statement of a co-accused relevant....
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.... confession/inculpatory statements of the co-accused under Section 108 of the Act and see whether there is other admissible evidence available against A2. 12. PW1, while examined under Section 244(1) Cr.P.C., deposed that he served summons to A2 pursuant to which A2 voluntarily gave a statement under Section 108 admitting that he had received the foreign currency from one Ishwar Singh and had then handed over the same to A3, who in turn gave it to A1. It was submitted by the learned counsel for A2/respondent that the latter had retracted his confession. However, the records do not reveal the same. No letter or other document has been produced to show that A2 had retracted from the statement given by him under Section 108 to PW1. Therefore, the argument that A2/respondent had retracted his statement does not appear to be correct. 13. Coming to the question whether Section 108 of the Act statement of A2 stands proved. The complainant relies on the testimony of PW1 who, while examined under Section 241(1) Cr.P.C., deposed that Exhibit PW1/C is the summons issued to A2 and that Exhibit PW1/B is the 108 statement of A2. As noticed earlier, A2 did exercise his right of cross-examin....
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....f the case, the court considers unreasonable. This aspect of the Section has not been satisfied by the complainant because it has not been shown that PW1 was unavailable or incapable of giving evidence or that had been kept out of the way by the adverse party or that his presence could not be obtained without an amount of delay or expense which the trial court, under the circumstances of the case considered unreasonable. Therefore, the testimony of PW1 cannot be made admissible under Section 33 of the Evidence Act. 15. I also refer to Section 32(2) of the Evidence Act, which reads thus: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: -- (1). XXXX (2). or is made in course of business-When the statement was made by such person in the ordinary ....