2009 (2) TMI 225 - HC - Customs

Appeal against acquittal directed against the order by which the 1st respondent has been acquitted of the offences punishable under Section 135(1)(a) and 135(1)(b) read with Section 135(3)(i) of the Customs Act 1962 - Held that - In the circumstances the Learned Magistrate held that there is no corroborative evidence on record to lend assurance to what is stated by the 1st respondent in the retracted statement under Section 108 of the said Act of 1962. The view taken by the learned Magistrate is certainly a possible view of the matter. Even assuming that another view can be taken on the basis of evidence is no ground to interfere in an appeal against acquittal in as much as the presumption innocence is further strengthened by the acquittal of the accused. Appeal dismissed.

Issues Involved:
1. Whether a conviction can be based solely on a retracted statement under Section 108 of the Customs Act, 1962.
2. Whether there is any corroborative evidence to support the retracted statement of the 1st respondent.
3. Whether retracted statements of co-accused can be used as corroboration against the 1st respondent.

Detailed Analysis:

1. Conviction Based Solely on a Retracted Statement:
The primary issue is whether a conviction can be based solely on a retracted statement under Section 108 of the Customs Act, 1962. The court referred to the decision in K.I. Pavunny v. Assistant Collector (HQ) Central Excise Collectorate, Cochin, where it was held that there is no prohibition under the Evidence Act to rely upon a retracted confession to prove the prosecution's case. However, practice and prudence require the court to examine whether the confessional statement is voluntary and true, and seek assurance from other evidence adduced by the prosecution. The court emphasized that even if the confessional statement of the 1st respondent was voluntary and true, corroboration from other evidence is necessary to ensure the statement's reliability.

2. Corroborative Evidence:
The court examined whether there was any corroborative evidence to support the retracted statement of the 1st respondent. The evidence presented included the statements of the 1st and 2nd accused under Section 108 of the Customs Act, 1962, which were also retracted. The court noted that nothing incriminating was found in the custody of the 1st respondent during the search of his house and business premises. None of the witnesses provided evidence connecting the 1st respondent to the seizure of the gold on the plane. The court concluded that the only material against the 1st respondent was his retracted statement, and there was no independent evidence to corroborate it.

3. Use of Retracted Statements of Co-Accused:
The court addressed whether the retracted statements of co-accused could be used as corroboration against the 1st respondent. The court referred to the Constitution Bench judgment in Haricharan Kurmi & Anr. v. State of Bihar, which held that a confession of a co-accused is not evidence as defined by Section 3 of the Indian Evidence Act, 1872. The court cannot start with the confession of the co-accused but must first examine other evidence adduced by the prosecution. Only after forming an opinion on the quality and effect of the other evidence can the court consider the confession for assurance. The court also referred to Ram Prakash v. The State of Punjab, which held that a retracted confession is admissible against a co-accused but requires the fullest and strongest corroboration on material particulars. The court concluded that the retracted statements of the co-accused, whose trial was separated, could not be used as corroborative evidence to support the retracted statement of the 1st respondent.

Conclusion:
The court held that there was no corroborative evidence to lend assurance to the retracted statement of the 1st respondent under Section 108 of the Customs Act, 1962. The view taken by the learned Magistrate was deemed a possible view, and even if another view could be taken, it was not a ground to interfere in an appeal against acquittal. The presumption of innocence was further strengthened by the acquittal of the accused. Consequently, the appeal was dismissed.

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