TMI Blog2010 (12) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent. [Judgment (Oral), (Common)]. As in all these Criminal Revision Applications, common questions arise for consideration as the aforeasid Revision Applications are also arising from the common judgment and order of the learned Additional Sessions Judge, Kutch at Bhuj, they are being considered simultaneously by the present common order. 2. The present Revision Applications have been filed challenging the impugned judgment and order passed by the learned Additional Sessions Judge, Kutch at Bhuj, in Criminal Appeal No. 28/2003, dated 21-5-2005 confirming the judgment and decree passed in Criminal Case No. 566/87 by the learned Chief Judicial Magistrate, Bhuj, dated 26-3-2003 recording conviction of the present applicants, original accused Nos. 2, 1, 5, 7, 3, 11 6 respectively, on the grounds set out in these applications. 3. In all there were 21 accused persons who were tried for the alleged offences under Section 135(1)(b)(i) of the Customs Act, 1962. Out of this, A-9, A-12, A- 13, A-15, A-16, A-17, A-19, A-21 were acquitted. Accused Nos. A-1, A-2, A-3, A-5, A-6, A-7 and A-11 were convicted and held guilty, whereas A-4, A-8, A-18 and A-20 were not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the statement of the present applicant is inculpatory, can conviction be based solely on such confessional statement? He further submitted that there has to be a corroborative evidence and such confessional statement can be used for corroboration. Learned counsel Mr. Pardiwala submitted that the statement of the other co-accused recorded under Section 108 of the Customs Act is a weak piece of evidence qua the other accused and cannot be relied upon without any other corroborative material and evidence. He submitted that the statement of the co-accused can be used against other co-accused for a limited purpose as required under Section 30 of the Evidence Act. 9. In support of the submissions, learned counsel Mr. Pardiwala referred to and relied upon the judgment of the Hon ble Apex Court in case of Union of India v. Bal Mumund Ors., reported in 2009 AIR SCW 2604 and submitted that the Hon ble Apex Court in this judgment has referred to the earlier judgment with regard to the confessional statement under Section 108 of the Customs Act. He emphasised the observations made in Para 21 wherein the earlier judgment has been quoted as under :- It must be remembered that the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence is not satisfactory, the prosecution seeking to rely on the confession of the co-accused has to be considered with presumption of innocence of the accused. 12. Learned counsel Mr. Pardiwala has also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Param Hans Yadav and Sadanand Tripathi v. State of Bihar and Ors., reported in (1987) 2 SCC 197 = AIR 1987 SC 197. He has also referred to the judgment of the Hon ble Apex Court in the case of Superintendent of Customs v. Bhanabhai Khalpabhai Patel and anr., reported in AIR 1992 SC 1583 = 1995 (76) E.L.T. 508 (S.C.), again referring to the confessional statement under Section 108 of the Customs Act and he emphasised the observations made in Para 6 : Coming to the statements recorded from A1 and A3 under S. 108 of the Customs Act, the High Court has correctly pointed out that the first Appellate Court was not at all justified in taking those statements of the accused persons as corroborative pieces of evidence to that of witness No. P.W. 7 (who was arrayed initially as accused No. 2 in the complaint). When these two pieces of evidence, namely, the evidence of P.W. 7 and the statements of A1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements. He has also submitted that even the statements of the co-accused, which may be considered as inculpatory, could not be confined to him and the statements of the co-accused cannot be a basis for conviction without any corroborative evidence. However, he has pointedly referred to Exh. 737, which is a statement of the accused No. 1 recorded under Section 108 of the Customs Act and submitted that it is not inculpatory but it is an exculpatory. He submitted that the accused no. 1 is the owner of the vessel and so far as goods are concerned, there is No evidence to connect the accused No. 1 with the alleged offence except the statements of the co-accused. He has also referred to and relied upon the judgments, which have been cited by the learned counsel, Mr. Pardiwala and, hence, same are not repeated. Criminal Revision Application Nos. 386 to 390 of 2005 16. Learned Sr. Counsel Mr. B.B. Naik appearing with learned advocate Mr. D.K. Nakrani for the applicants submitted that the allegations against A-3, A-7, and A-11 are that they were involved in sale of the watches. The role attributed to A-5 is that he recovered the consideration and thereby he has abetted or helped in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to and relied upon the judgment of the Hon ble Apex Court in the case of Ramesh Chandra Mehta v. The State of West Bengal, reported in AIR 1970 SC 940 = 1999 (110) E.L.T. 324 (S.C.). He emphasised the observations made in Para 26 27 and submitted that as observed in this judgment the Customs Officer does not accuse him with the commission of offence and the detention may be only for the purpose of holding effective inquiry under Sections 107 and 108 of the Act and the accusation can be made only after the complaint is lodged. He further emphasised that under Article 20(3) of the Constitution, the right cannot be denied to an accused. He therefore submitted that the impugned judgment and order passed by the trial court and confirmed by the lower appellate court deserves to be quashed and set aide and the present application may be allowed. 21. He further submitted that the statement of the person who is not examined as a witness cannot be relied upon. He submitted that the statement of some persons who are neither an accused nor a witness have been relied upon and therefore there is material irregularity for which he referred to Exhs. 760, 762 and 763. Therefore, Learned Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts emerging from the evidence in the case, there is no scope for this Court to interfere with the order in that regard in exercise of jurisdiction under article 136 of the Constitution. 25. Learned counsel, Ms. Yagnik submitted that there was a specific allegation made with regard to ill-treatment and the complaint was also filed but that would not make such statement recorded under Section 108 of the Customs Act inadmissible. She has submitted that though such allegations are made, there is no evidence produced on record, particularly, with regard to the complaint being C.R. No. I-32/1997. Therefore, it was submitted that the presumption cannot be readily made that there was any such duress, threat or compulsion. It was submitted that when there is no such evidence brought on record, such contentions cannot be considered in revision when both the Courts below have examined and it could have been considered on the basis of the material and evidence and as they have failed, such contention, which is raised, is without any basis. 26. She has also referred to the statements as stated above in detail and submitted that it is a matter of appreciation of evidence whether s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon ble Apex Court reported in AIR 1973 SC 799 in case of Amar Chand Agarwal v. Shanti Bose Anr. and emphasised referring to the observation made in Para No. 20 of the said judgment that only in exceptional circumstances, discretion may be exercised . 28. Similarly, she has referred to and relied upon the judgment reported in 1991 (3) JT 63 in case of Gagan Bihari Samal Anr. v. State of Orissa. She referred to and relied upon the judgment reported in AIR 1998 SC 1487 = 1997 (96) E.L.T. 211 (S.C.) in case of Bhana Khalpa Bhai Patel v. Assistant Collector of Customs, Bulsar, Gujarat Anr., more particularly, Para No. 73 and submitted that inculpatory and exculpatory admission are required to be considered and this aspect has also been considered in a subsequent judgment reported in (2008) 9 SCC 475 in case of State of Maharashtra v. Sujay Mangesh Poyarekar and (2008) 4 SCC 70 in case of Ran Singh Anr. v. State of Haryana Anr. 29. Learned counsel, Ms. Yagnik has also submitted that the submissions made by the learned counsel with regard to admissibility of the confessional statement and also the admissibility of the statements recorded under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such statements. The submissions, which have been made at length referring to this aspect and also discussion in the judgments given by both the Courts below though sound appealing requires closure scrutiny, it does not seem to be well-founded. The first aspect about the admissibility of the statements recorded under Section 108 of the Customs Act is well settled in light of the judicial pronouncement made by the Apex Court that such statement made before the Officer is admissible in evidence as it carmot be said that the statement before the Police, which is also relied upon time and again that when during the inquiry, such statement is made before the authorized officer under the statute, such statements would be admissible in evidence and it would not be hit by the provisions of Section 34 or 30 of the Evidence Act. 33. A useful reference can be made to the observations made by the Hon ble Apex Court in a judgment reported in (1997) 3 SCC 721 =1997 (90) E.L.T. 241 (S.C.) in case of K.I. Pavunny v. Assistant Collector, (HQ), Central Excise Collectorate, Cochin decided by the bench of three Judges on very this point with regard to the statements recorded under Section 108 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish by evidence that such statement was recorded under such compulsion or coercion or threat then burden would shift on the prosecution to discharge that it was recorded voluntarily. In the facts of the present case, it could be seen that the accused had moved earlier Criminal Misc. Application Nos. 1340, 1347 1348 of 1985 and as per the order dated 19-9-1985 passed therein, it has been clearly recorded that the appellant had undertaken to accept summons under Section 108 of the Customs Act and had agreed to remain present for recording such statement. Therefore, such applications were made under Section 438 of the Criminal Procedure Code, wherein the orders have been passed recording some statements on behalf of the accused and, thereafter, when such statements are recorded, the submission with regard to coercion or threat cannot be readily accepted. Further, as rightly submitted by the learned counsel, Ms. Yagnik, no evidence has been broughton record on this aspect to primarily establish that it was not made voluntarily. Even the statements under Section 313 of the Criminal Procedure Code does not refer to this aspect, in which, it was open for the accused persons to say o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 39. Therefore, as such statements recorded before the authority under the special statute like Customs Act are not a statements of the accused and, therefore, the submissions made by the learned counsel that the statements of the co-accused would not be admissible also is misconceived. 40. Further, as discussed hereinabove referring to the judgment of the Hon ble Apex Court reported in (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) wherein the purpose and object is also reflected and the purpose as indicated is that while making such inquiry for the purpose of collecting evidence and in furtherance thereof when the seizure has been made of the contrabands goods, the entire evidence would be a relevant for considering the guilt of the accused persons. Therefore in the facts of the case, on the basis of such statements of the accused recorded revealing the details with regard to the transaction which have taken place leading to further recovery of the contraband articles and or money, for which, panchnamas are made. Therefore, observations have been made by the Apex Court in a judgment reported in (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) that such statements will lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and if such independent evidence is there, it cannot be said that other co-accused are implicated merely on the basis of the statements of other co-accused recorded under Section 108 of the Customs Act. In fact, it is on the basis of such revelation, further evidence has been collected like in the present case on the basis of the statement of the co-accused when search has been made and the contraband articles (watches and money) have been recovered from the other co-accused would in fact be a evidence against them. Further, there is no explanation with regard to this aspect in further statements under Section 313 of the Criminal Procedure Code. Therefore, cumulative effect of the entire evidence has to be considered and particularly when there is no explanation coming forth from the accused or the concerned accused with regard to the incriminating evidence against him. Therefore, it cannot be said that the impugned judgment and order recording conviction, which has been confirmed, is perverse or resulted into miscarriage of justice. It is also well settled that the provisions of Section 313 of the Criminal Procedure Code is specific for the purpose of pointing out circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view has taken, it cannot be even substituted even if other view is possible. 50. Therefore, having considered the aforesaid guidelines with regard to limited scope, there is no reason to interfere with the concurrent findings arrived at by both the Courts below and the present Revision Applications deserve to be dismissed. 51. Accordingly, the present Revision Applications stand dismissed. The applicants are on bail and, hence, their bail bonds stand cancelled. Rule is discharged. 52. Office shall keep copy of the order in each matter. Further Order 53. After the order was pronounced, the learned counsel Mr. J.B. Pardiwala with Ms. Megha Jani appearing in Criminal Revision Application No. 381 of 2005, learned counsel Mr. H.A. Dave appearing in Criminal Revision Application No. 385 of 2005 and learned senior counsel Mr. B.B. Naik with Mr. D.K. Nakrani appearing in Criminal Revision Application Nos. 386 of 2005 to 390 of 2005 have requested for grant of ten weeks time to surrender and to enable them to approach the higher forum. In the facts and circumstances, the request is granted. Time to surrender is, therefore, granted of eight weeks. - - TaxTMI - TMITax - Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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