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TMI Blog2010 (1) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 filed by the Revenue : Revenue has raised the following grounds against the impugned order dropping the proposal to penalize Shri Santhosh Talpade. Shri Santhosh Talpade and Shri Abdul Sathar had identified each other in presence of witnesses on 13-2-2001 and this meeting was recorded in a panchnama dated 13-2-2001. Shri Santhosh Talpade had identified Shri Abdul Sathar as the person who had passed through the green channel and whom he and his colleague Shri John Baretto had assisted in clearing through Customs on 9-2-2001. The Commissioner rejected the statements of S/Shri Baretto and Abdul Sathar as evidence against Shri Santhosh Talpade as they were not made available for cross-examination by Shri Santhosh Talpade. In the case of another co-noticee and officer of Customs Shri John Baretto, the Commissioner did not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etracted 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 records and considered the rival submissions. We find that in the impugned order, the Commissioner noted that Shri Santhosh Talpade was not able to cross-examine S/Shri Abdul Sathar and John Baretto who had given statements incriminating him, as they did not participate in the adjudication proceedings. Since these persons were not offered for cross-examination, the Commissioner found their statements not reliable evidence against the respondent. The respondent had been posted at counter No. 9 at the airport under a Superintendent of Customs, which was situated close to the Deputy Commissioner's cabin. As an officer posted to attend counter duties, he could not have cleared any passenger passing through the green channel under the supervision of two other Superintendents of Customs. The Commissioner noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that there were witnesses to statements by the respondent and the passenger on 13th February. This mahazar drawn on 13-2-2001 was aimed at establishing that Shri Abdul Sathar and Shri Santosh Talpade knew each other and that the respondent had assisted in the smuggling activities of Shri Abdul Sathar. This mahazar is reproduced below : "We the above named panchas on being called by Shri P.P. Kuriakose, Senior Intelligence Officer, Directorate of Revenue Intelligence (DRI), Zonal Unit, Mumbai, presented ourselves in the DRI office at 3rd floor. Hotel Waldorf building, 16, Arthur Bunder Road, Colaba, Mumbai - 400 005 on 13-2-2001 at 14.00 Hrs. Here the said officer showed us two persons who on asking in our presence gave their names as Abdul Sathar and Santosh Talpade. On further asking, Shri Sant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent'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 legally recognized procedure to find that the respondent and the passenger Shri Abdul Sathar were known to each other and that Shri Talpade had abetted smuggling. What is sought to achieve by the proceedings is to lend credibility to the statements of the respondent and the passenger. We find that statements obtained by the DRI in their office the presence of persons called to witness the same need not be voluntary; it is also an environment where a witness feels under pressure. The mahazar version also does not entirely correspond to the earlier statements. 11. In the judgment relied on by the Revenue in the case of Surjeet Singh Chhabra (supra), the Apex Court upheld the reliance of the Revenue on the retracted statement of the accused therein on the ground that the statement recorded under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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 the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences. 12. In Kashmira Singh's case the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." In the Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. - JT 2000 (8) SC 530 = 2000 (120) E.L.T. 280 (S.C.), this Court held : "...The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non-police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impalr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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