TMI Blog1994 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the boxes the authorities found 10 bundles of Indian currency wrapped in newspaper, each of the value of Rs. 1 lakh, in addition to some bangles and other fancy items and in another cardboard box the authorities found another 10 bundles of Indian currency of each Rs. 1 lakh wrapped in newspaper alongwith bangles and fancy items. Appellant Uttam Chand admitted the ownership of the two cardboard boxes containing the Indian currency in question. Since the Indian currencies were being sent without cover of bills or documents and kept concealed with fancy items, the authorities effected detention of the same under a Detention Mahazar on a reasonable belief that the currency represented sale proceeds of contraband gold. Appellant Uttam Chand told the authorities that at the request of one M.A. Mattukutty of Calicut he despatched the currency in the cardboard boxes along with the fancy articles and did not give bill or any documents for the same. To a query from the authorities Uttam Chand did not tell anything further. The detention mahazar was prepared by the authorities for seizure of the currency on 31-8-1988 at about 5.30 PM. On 3-9-1988, Shri Uttam Chand gave an inculpatory sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly was recorded from him after subjecting Uttam Chand to illegal detention and by coercion by ill-treating him and causing him injuries. Similar statements were also extracted from persons like Selvaraj, Kannan, Gaffoor and others. The statements of Uttam Chand and others are not voluntary and true and were brought out under the circumstances of threat and coercion by keeping the persons in illegal detention. Uttam Chand was detained till 9.00 PM at the lorry shed on 31-8-1988 and then taken to the Customs office and kept in illegal custody. Shri Veerabadran, Advocate, who was engaged to get the release of Uttam Chand, in his cross-examination submitted that when he went to the Customs office he saw Uttam Chand and his brother Ramesh Kumar with their faces swollen and marks of beatings were visible on their bodies and he was prevented from meeting them. Farook has also stated that he was taken to Madurai by Calicut Customs officers and reached Madurai on 2-9-1988 evening and he was also compelled to give a statement against his own volition. It was urged that Uttam Chand s father sent a telegram on 2-9-1988 to the Collector of Customs, Trichy, alleging illegal detention of his son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to Uttam Chand the supplier of gold was one Rasheed and those persons were also not examined by the Department. No summons were issued to the three purchasers of gold, viz. Bhaskaran, Purushothaman and Loganathan. Shri Chandrasekharan, Supdt. of Customs, was cross-examined by Advocate on 2-3-1990, who admitted that Selvaraj and Kannan were not in his office from 1-9-1988 to 4-9-1988. The learned Counsel referred to the cross-examination in support of the plea of illegal detention and custody of Uttam Chand and others for the purpose of extracting the statement. 6. Shri Thyagarajan, the learned Counsel appearing for appellant Selvaraj and Kannan, submitted that the inculpatory statements are not voluntary and true and were brought out when they were in illegal detention from 1-9-1988 to 4-9-1988. They were not produced before the judicial Magistrate and in a case of this magnitude the department would not arrest a person and just release him on bail and they were deliberately not produced before the Magistrate because they were in illegal custody for more than three days and were beaten up. The learned Counsel further submitted that Uttam Chand was interrogated and his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and a previous offender fined by Belgaum Collectorate. According to him he sent the sale proceeds of contraband gold to Uttam Chand for despatch. Selvaraj has also narrated in his statement about his prior transactions through Uttam Chand. It was urged that 53 gold biscuits, as per the statement of Selvaraj were given by the said Gaffoor at Selvaraj s house at Madurai, which he sold to three persons, viz. Bhaskaran, Purushothaman and Loganathan and even though the authorities searched the premises of those persons on 2-9-1988 nobody was present. The inculpatory statement of Selvaraj has been corroborated by the statement of Kannan, his brother, on 3-9-1988 and Kannan has also explained how the money was given to Rameshkumar, brother of Uttam Chand and how he also helped him in packing the currency. Farook had also given an inculpatory statement on 3-9-1988 and the same was retracted only on 14-9-1988. The learned D.R. also referred to the belated retraction of the statement of Uttam Chand. The learned D.R. after making elaborate submissions on the evidence on record, placed reliance on the Division Bench Ruling of the Madras High Court in the case of Anilji Merchant v. DRI, repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till date. Appellant Uttam Chand sent the cardboard boxes, which fact he admitted before the authority. On 31-8-1988 Uttam Chand was very much available before the authorities and in such a situation one would normally expect the authorities to record the statement of Uttam Chand immediately then and there, particularly when a substantial quantity of currency in the above circumstances had been rightly seized by the authorities. But unfortunately no statement from Uttam Chand was recorded at all on 31-8-1988. To a pointed query as to whether Uttam Chand was detained by the Customs authorities till he was released on bail on 4-9-1988, the learned D.R. merely stated that he was allowed to go and come . We find that statement from Uttam Chand was recorded only on 3-9-1988 and despite our best endeavours we are not able to get any reason as to why the statement was not immediately recorded from Uttam Chand. If Uttam Chand had been a willing party to give a statement of his own it does not stand to reason as to why no such statement was recorded from him till 2-9-1988. We were not shown any copy of the statement recorded by the officers from Uttam Chand on 2-9-1988. After completion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until 9 PM and in the meanwhile they beat me and Lorry Office employees indiscriminately and brutally I was forcibly taken to their office at 9 PM. Not a drop of water or food was given to me because they wanted me to and I refused to, admit that they are sale proceeds of smuggled gold, Mahazar copy of seizure was not given to me. Throughout the night no sleep until between 3 AM and 5 AM next day on 1-9-1988. In the night they gave me a cup of coffee after I accepted their story of smuggling and selling gold because I could not stand the torture of a dozen officers, peons, sepoys etc. of the office with lathis, rulers and steel rods. After severe maltreatment destroying all my self respect and free will, they began to dictate statements on 2-9-1988. I was compelled to write in Hindi their own stories of sale of gold, I wrote 3 pages next day. 3 pages on 3-9-1988 and another 2 pages on 4-9-1988. I was kept in their lock up all the time from 31-8-1988 to 4-9-1988 for five days. At about 9 P.M. on 4-9-1988 they released me on bail on the condition that I should appear daily on all the working days, till 9-9-1988 and from 12-9-88 Monday thrice a week. 5. They engaged their own lawyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws. (e) There was `no reason to believe that I had violated the Customs Act. Therefore the seizure is illegal. (f) The statements are false and illegal and therefore the statements cannot be used for any purpose. Even otherwise Section 138-B is a bar to the use of such statements." 9A. Appellant Selvaraj has also sworn an affidavit before the High Court as under : I submit that on 1-9-1988 at about 10 A.M the 1st respondent s officer, Preventive Inspector Sri Gopal along with other officers came to my office and was examining my brother Mr. Kannan. At that time I reached my office. During the Customs Officers search nothing incriminating was seized or found. Then they forcibly took me to their office by 3 PM. They locked me in their office and threatened me with serious consequences if I did not write a statement according to their dictation. Even though I resisted it did not last for long. They took my statement for four days. They did not provide me any basic amenities. I was kept in their lock-up for four days without proper food and sleep. The officers acted in an unreasonable and brutal manner and harassed me to submit to their command. The officers did not give me t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to the first respondent in each of his petition under Section 124 of the Customs Act, subject to the order passed by this court on 27-9-1988". This would clearly show that another learned Judge of the High Court at a later point of time, after about 4 months of the earlier order, confirmed the earlier order of the High Court. The above circumstances would clearly indicate prima facie two learned Judges of the Hon ble High Court were not satisfied about the voluntary nature of the statements and no other conclusion is possible in the above admitted facts. It would be relevant to note here that during the existence of the aforesaid orders of the High Court a show cause notice was issued by the Department on 8-2-1989 and, therefore, obviously the Department chose to initiate proceedings so far as the present appellants are concerned, de hors their statements, in the light of the two orders of the High Court. The learned adjudicating authority also in para 7.3 of the impugned order has referred to the writ petitions and the counter-affidavits filed by the Department and also the first order of the High Court dated 27-9-1988, directing the Department not to take any action on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native remedy was available to the parties they should pursue their relief before the proper alternate forum. Subsequent to the above order of the High Court, the Department did not issue any show cause notice expressly putting appellants Uttam Chand and Selvaraj, who were the writ petitioners, on notice and indicating that the Department would rely on their statements and calling upon them to put forth their defence. When the learned D.R. was confronted with this position, he merely stated that inasmuch as they had traversed their own statements in their reply, no prejudice has been caused to them and by virtue of the dismissal of the writ petitions the Department would become entitled to rely on their statements. We are afraid, this plea of the learned D.R. cannot be accepted in the context of the peculiar facts and circumstances of this case set out above. 10. It is now well settled that, if the statements are found not to be voluntary, the further question of placing reliance on them, even if they are true, would hardly arise. Indeed, a statement which is inculpatory in nature and confessional in character voluntarily and truthfully made is indeed an efficacious proof of guil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drasekharan, Supdt. in his cross examination dated 2-3-1990 has stated that Uttam Chand, Selvaraj and Kannan were not in his office from 1-9-1988 to 4-9-1988 till they were released on bail and were brought by the Inspectors as and when they were required. Various answers given by the two Inspectors which form part of the record of personal hearing create considerable doubt in our mind as to whether the appellants were free persons at all moving about on their own volition or were under de facto detention with complete official surveillance on them. In the present case from 31st August, 1988 onwards, admittedly appellant Uttam Chand was available to the authorities. It is indeed surprising that no statement was recorded from him either on 31st Aug. or 1st or for that matter on 2nd Sept. 1988. The statement came into existence only on a later point of time. This inordinate delay is only consistent with a situation where Uttam Chand or the other persons were not willing to make a statement. The Department has no satisfactory explanation in this regard. The factual background in which the statements were recorded from Uttam Chand and others disturbs our judicial conscience and it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testimony of the Advocate Shri Veerabadran. We are not able to accept the plea of the Department that after all Uttam Chand was willing and playable to attend the Customs office as and when directed and eventually had to be served with summons. Serving of summons also is rendered totally meaningless in the admitted context of this case. 14. At this juncture we would like to refer to the judgment of this Bench in the case of K.L. Pavunni v. Collector of Customs and Central Excise, Cochin, reported in 1985 (22) E.L.T. 913 wherein the Bench has observed as under : Such a confessional statement would lose all its value and worth if the same is proved to have been brought into existence after the appellant was detained de facto for a considerable length of time. in Customs Office even if it was in the handwriting of the appellant and contained factual details which could not be characterised as the figment of the officer s imagination. The appellant s explanation that he could retract from his confessional statement only on 15-12-1980, because of the continuing threat that his wife too would be examined otherwise whereas she was in fact examined on 12-12-1980, appears plausible and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... varaj and Kannan, the appellants herein have not proved to be voluntary, more particularly when the adjudicating authority himself chose not to rely on the statements of Uttam Chand and Selvaraj against them in the proceedings as evidenced by his own finding extracted above. We, therefore, give the benefit of doubt in favour of the appellants present before us and exonerate them of the charges. We make it clear that we do not feel called upon to pronounce upon the ownership of the currency in question. It is an admitted fact that Uttam Chand despatched the boxes containing the currency and owned up the same even at the earliest stage of detention of the currency. The various averments in the writ affidavits also proclaim Uttam Chand s claim to the same. Irrespective of the ownership of the same inasmuch as the currency was in the possession of Uttam Chand we are constrained to hold that he would be entitled to the return of the same as the same cannot be confiscated on the ground that Uttam Chand had not proved his ownership as contended by the learned D.R and we hold accordingly. In the result by giving the appellants the benefit of doubt we exonerate the charges against them and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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