TMI Blog1997 (8) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... so seized. These gold biscuits were also a part of the adjudicating proceedings and the appellant was implicated in this case, by the above said persons. 3. The learned Advocate Shri P.V. Rajagopalan, Advocate appearing for the appellants contended before us that the only evidence available in this case is the confessional statements of co-accused which is not sufficient to fasten the liability against the appellants. In this connection, he drew our attention to the decision of the Hon ble Supreme Court reported in AIR 1964 SC 1184 and, also the decision of the Supreme Court reported in AIR 1968 SC 832. Relying on the said decision, the learned Advocate contended that the confession of co-accused alone is not sufficient to find the appellant s guilty. In this connection, he pointed out that if there is some evidence available then the confessional statements, can be used as a corroboration on the existing evidences. He also pointed out that at best it can be said that the confessional statements of the co-accused must be corroborated materially. Unless there is such corroboration, he pointed out that the accused appellant cannot be penalised. It was further pointed out that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said persons were penalised and the maximum penalty imposed on the other persons was Rs. 5 lakhs and the penalty varied from Rs. 5 lakhs, Rs. 2 lakhs, Rs. 1 lakh, Rs. 50,000/-, Rs. 25,000/- and Rs. 10,000/-. He pointed out that as far as this appellant is concerned, the penalty imposed is Rs. 20 lakhs. It was therefore pointed out that if the plea of the appellant with respect to the other aspects are not considered in his favour, then a reduction in the penalty is warranted in the facts and circumstances of this case. He pointed out that there was a clear discrimination in the imposition of penalty on this account, to the extent of Rs. 20 lakhs. 4. The learned JDR appearing on behalf of the Department contended before us that this confessional statements were retracted by the co-accused only after a period of 2 months. He, therefore, pointed out that the retraction is only an afterthought. In this connection, he pointed out that the burden is on those persons to establish that their statements were taken under coercion, threat and the inducement. He pointed out that the Customs Officers while performing their functions under Section 108 of the Customs Act were recording the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and when he reached Abdul Majeed s house, Sathar of Irikkur, Majeed, Sakker and others were there and talked about the details of landing with Majeed. He also relied on the last portion of the statement of Mr. Abdullah to the effect that he will get Rs. 25,000/- per each landing. He also pointed out that Mr. Abdulla was the partner of Mr. Abdul Majeed (appellant). 5. In a rejoinder, the learned Advocate stated Mr. Abdulla has clearly stated that he was a partner with Mr. Majeed and whatever his involvement is, will also equally apply to Majeed. Therefore he stated when Mr. Abdulla get Rs. 25,000/- for each landing, his partner (appellant) also will get that much amount and there is no reason to put such harsh penalty of Rs. 20 lakhs on Mr. Majeed when Mr. Abdulla was penalised only Rs. 50,000/-. He also pointed out that there was no reasoning in the adjudication order as to why such heavy penalty is imposed on Mr. Majeed. 6. We have considered the submissions made by both the sides. The first point to be determined is whether the statements of the co-accused can be relied upon. The first contention of the learned Advocate is that these statements are taken under prolonged cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by a person summoned under Section 107 or Section 108 before the Customs Officer is admissible in law since it is not hit either by Section 25 or Section 26 of the Evidence Act. If it is shown in a given case that such a confession was obtained by the Customs officer by exertion of inducement, threat, coercion or duress or extracted by illegally detaining the person an unauthorised prolonged custody in contravention of the provisions of the Customs Act, or obtained by using third degree methods, then the question about the acceptability and reliability of such involuntary confessions would arise. It is seen from the above said decision that in such cases, it is for the party concerned to prove that they were under restraint by the officers. The evidences in this case given by the officers when they were cross-examined was to the effect that they were not put under any restraint. It is therefore seen that those co-accused who were with the Customs officers have to prove about the illegal detention. There is no evidence placed before us to establish that those co-accused were under illegal detention and there was threat or coercion exercised by the officers on them to give any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is already on record. Our attention was also drawn to the decision of the Supreme Court reported in AIR 1968 SC 832 wherein their lordships held that a retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance or on the face of them falls. Their lordships also held that once the confession is proved satisfactorily, any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise etc. At the same, it was held that a retracted confession is a weak link against the maker. 9. We observe that these decisions were rendered by the Hon ble Supreme Court in the context of criminal proceedings under the Criminal Procedure Code. Their lordships were also dealing with Section 30 of the Indian Evidence Act. It was in those circumstances their lordships held that the same is a weak type of evidence. But in the case of Naresh J. Sukhawani v. Union of India reported in 1996 (83) E.L.T. 258 their lordships were discussing the evidence of co-accused in the context of Section 108 of the Customs Act. In these circumstances, it is seen that those decisions rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance getting corroboration from other evidence adduced by the prosecution. The learned Advocate stated that in that particular case, their lordships were discussing about the statements of the appellant who gave the statement. Further, it is seen that their lordships in the above decision held that on the sole statement of the appellant a conviction can be based. It is seen that in the decision reported in 1996 (83) E.L.T. 258 (S.C.) = 1996 (62) ECR 366, their lordships of the Supreme Court again held that confession of a co-accused is a substantive evidence and that alone is sufficient to convict the accused. The principles laid down in K.I. Pavunny case applies here also. In this case, confession of one co-accused implicating the appellant is corroborated by the confessional statement of the other three co-accused. Their statements were further corroborated by the seizure of the gold biscuits as well as the car in question. It is also seen that the statement of all these persons are very detailed statements narrating the several facts graphically. The statements of each of these co-accused are corroborated in material particulars by the statements of other co-accused and in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lla and a penalty of Rs. 20 lakhs is imposed on the appellant. The records clearly indicate that a bias is shown in this regard in favour of Mr. Abdulla. However, the fact that Mr. Abdulla is penalised Rs. 50,000/- is not a ground to reduce the penalty on appellant. The penalty is to be imposed on the appellant on the role played by him in the smuggling activity. If that is so, it is to be seen as to what is the penalty which should be imposed on the appellant. Ordinarily, a penalty of Rs. 20 lakhs on such huge smuggling cannot be said to be in any way excessive. However, we have to look into the other facts of the case also. Here is a case wherein the partner of the appellant is getting away with a token penalty of Rs. 50,000/-. Here is a case wherein the department has not chosen to file any appeal with this type of penalty imposed on Abdulla. Further, it is seen that in imposing the penalty, the totality of the circumstances available in this case is to be looked into. As already stated by us ordinarily this amount of penalty Rs. 20 lakhs could not be said to be excessive. However, the aspect of imposition of low penalties on other persons is also another factor which has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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