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2011 (1) TMI 1429 - HC - CustomsSmuggling - Gold Bars - the conviction has been based only on the statement of the petitioner recorded under Section 108 - Held that: - The possession of gold has been proved and the fact that it is of foreign origin has been proved by the statement of the petitioner recorded under Section 108 of the Customs Act - Under Section 123 of the Customs Act, the burden of the prosecution is not to prove beyond reasonable doubt that the goods recovered were smuggled goods. The statement of the petitioner recorded under Section 108 of the Customs Act proves that there is a reasonable belief that the gold found in possession of the petitioner is smuggled. Though this statement is sought to be retracted after two days in the bail application which is not signed by the petitioner but by his counsel wherein it has only been written that the confession was coerced from him and the same stands withdrawn. This is not a proper retraction but a defence sought to be laid. This so called retraction does not cast a doubt on the voluntariness of the confessional statement. It is a settled legal principle that under Section 30 of the Evidence Act, confession of co-accused can be used only to lend assurance. Petition dismissed - decided against petitioner.
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