TMI Blog2010 (1) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Pareira, JDR, for the Department. [Order per : P. Karthikeyan, Member (T)]. These appeals are filed by Shri Arif Shaikh (Appeal No. C/934/08) and Revenue (Appeal No. C/1016/08) challenging the order of the Commissioner of Customs (Adj) Mumbai, CAO No. 85/2008/CAC/CC/KS dated 31-3-2008. Facts in brief are that on 9-2-2001, pursuant to seizure of 200 gold bars of foreign origin valued at Rs. 1,02,80,000/- from the possession of Shri Abdul Sathar, a passenger who had arrived by Emirates flight No. EK-500 from Dubai and intercepted when he was about to leave the airport through the green channel, DRI initiated investigation. Shri Abdul Sathar admitted to smuggling gold bars of foreign origin in complicity with several other persons including two officers of Customs. Vide the impugned order, the Commissioner confiscated the seized gold under Section 111 of the Customs Act, 1962 (the Act) and imposed penalties on various persons found to have been involved in smuggling or abetting the smuggling under Section 112(a) (b) of the Act. A penalty of Rs. 5.00 lakhs was imposed on Shri Arif Shaikh. Proposal to penalize Shri Santhosh Talpade was dropped. 2. Appeal No. C/1016/08 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing which Shri Santhosh Talpade and Shri John Baretto had assisted him. In statements recorded on 11-2-2001, 12-2-2001, 13-2-2001 and 27-2-2001, Shri Santhosh Talpade had admitted his involvement in organizing smuggling of contraband including seized 200 gold bars by Shri Abdul Sathar. The complicity of Shri Santhosh Talpade in the offending transactions was corroborated by statements of Shri Abdul Sathar and Shri John Baretto. The retraction dated 27-4-2001 of Shri Santhosh Talpade was not acceptable. During hearing, the Revenue relied on the judgment of the Apex Court in Surjeet Singh Chhabra v. UOI, reported in 1997 (89) E.L.T. 646 (S.C.) as well as K.I. Pavunny v. Asst. Collector (HQ) Central Excise, reported in 1997 (90) E.L.T. 241 (S.C.). 6. The ld. Counsel for the respondent submitted that the retracted confessions could not be relied upon as evidence, in the absence of corroborating evidence. He also relied on the judgment of the Apex Court in Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate, reported in 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 433 (S.C.) and the judgment in the Pavunny case (supra). 7. We have carefully studied the case recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded by the investigating authority from the respondent in which he had admitted his involvement in the offending transaction of smuggling 200 gold bars. In his retraction dated 24-7-2001 he stated that he had been continuously pressured by the officers of DRI to admit his involvement in the impugned smuggling. He was threatened that his parents would be implicated in smuggling. His mother was a heart patient. He was also threatened that if he did not co-operate with them he would be arrested and also booked and detained under COFEPOSA. Therefore he had acted as per the dictates of the investigating officers. He had denied any connection with S/Shri Abdul Sathar, Shakil Patel and Arif Shaikh. After the investigation by the DRI, he was continuously interrogated by the officers of the Directorate of Vigilance. He was detained under Cofeposa from 23-3-2001. He retracted his initial statement when he was in Nasik Central prison as he had not got an earlier opportunity to retract the confession. 9. We find that the evidence on which the Revenue s appeal is based is the statements recorded from Shri Santhosh Talpade and Shri Abdul Sattar in February 2001. A mahazar was drawn to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thar is the same passenger whom he and John Baretto, IO, AIU, had on 9-2-2001 on arrival by flight EK-500 assisted in clearance through Customs. During the entire aforesaid narration by both S/Shri Santosh Talpade and Abdul Sathar they were confronting each other in person when all the said narration was taking place. The said officer who was drawing the panchnama, thereafter, asked each of them, namely S/Shri Santosh Talpade and Abdul Sathar, to put their dated signatures below on this panchnama in token of confirmation that they were present before each other here today in DRI office in our presence and narrated as recorded above. Accordingly each of S/Shri Santosh Talpade and Abdul Sathar have put their signatures with date in our presence, here today. This document has been assailed by the respondent s Counsel as not acceptable evidence. The procedure for identification of a person had been elaborately laid down in the case of Sayed Mohammed Owais v. State of Maharashtra reported in 2003 DGLS (Cri.) Soft 1078 by the Hon ble High Court of Bombay. The procedure followed was not recognized for the adjudication proceeding. 10. We find that the mahazar proceedings are not a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession Was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted the accused, accepting that part of that confessional statement of die accused which was corroborated from other evidence. This Court upheld the conviction and held that it is not necessary that each item of fact or circumstance mentioned in the confessional statement requires to be corroborated separately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh s case was referred to. 12. On a careful consideration of these judicial authorities, we find that a retracted admission cannot be relied on to find a charge against a person without corroboratory evidence. In the Mohtesham Mohd. Ismail case the Apex Court noted as follows : We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [2006 (13) SCALE 386], this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been retracted. All the statements recorded from the respondent have to be seen in the light of the retraction and these have to be proved with further evidence. 13. We reject the statements as evidence being not voluntary and true. As held by the Apex Court in the Pavunny case, rule of prudence and practice requires that a Court seeks corroboration of the retracted confession from other evidence. In the instant case the passenger who incriminated the respondent did not appear before the authorities. Other major party to the transactions Shri. John Baretto did not also participate in the proceedings. No corroboratory evidence of the respondent s involvement was gathered by the revenue. In the circumstances, we find no reason to interfere with the impugned order. Accordingly, the appeal filed by the Revenue is rejected. 14. Appeal No. C/934/08 As regards the appeal filed by the Shri Arif Shaikh in the impugned order, we do not notice any finding of involvement of the appellant in the offending transactions in the impugned order. Accordingly, we allow the appeal filed by Shri Arif Shaikh. We find that the penalty of Rs. 5.00 lakhs was imposed on the appellant without any jus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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