TMI Blog2010 (9) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the accused-petitioner Satnam Singh (herein referred as the accused) against the judgment dated 24-8-1999 passed by Chief Judicial Magistrate, Amritsar, convicting and sentencing him lo undergo rigorous imprisonment for three years and to pay fine of Rs. 5000/- under Section 135 of the Customs Act, 1962 (for brevity the Act ) was dismissed. 2. Succinctly put, the facts are that on 22-3-1995, at about 8.30 PM. when the Prevention Staff of Customs Department. Amritsar assisted by Punjab Police were present at the T-point of village Nangal Tola near Rajasansi, the accused was seen coming. On suspicion, he was apprehended. After disclosure of the identity by the Investigating Officer, they conducted the personal search of the accused in the presence of independent witnesses, namely; Kuldip Singh and Karaj Singh, leading to the recovery of 6 gold biscuits of foreign origin and Rs. 220/- in cash. Panchnama (Ex. PA) was prepared and signed by Mahipal Singh, Inspector Customs Preventive Amritsar, Hansa Singh OPD and two independent witnesses Kuldip Singh and Karaj Singh. Recovery memo (Ex. PB) was also prepared by Inspector Mahipal. The accused was brought to the Customs House, Amr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d anything having been recovered from him. In defence, he examined Lala Ram (DW1), Parkash Chand (DW2), Prem Kumar Bansal (DW3) and Parshotam Lal (DW4). However, the trial ended in conviction and the appeal also failed. 8. Arguments heard. Record perused. 9. The Counsel for the accused has submitted that the accused was not found in possession of the aforesaid gold biscuits, on any occasion. He has urged that the Courts below recorded the conviction merely on the basis of his alleged confessional statements, under Section 108 of the Act, recorded by the Custom Officers. He has further submitted that the Custom Officers, being Police Officers, the confessional statements, allegedly made before them by the accused, were hit by the provisions of Section 25 of the Indian Evidence Act, 1872 and, thus, were not legally admissible. He has further submitted that no other evidence was produced by the complainant, to prove that the accused was found in possession of the gold biscuits. It was also submitted that though the alleged recovery was effected on 22-3-1995 from the accused, whereas, his alleged confessional statements were recorded on 23-3-1995 and 25-3-1995 under Section 108 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, whether an Officer of the Customs, is deemed to be a Police Officer, is whether, he is invested with all the powers of a Police Officer, qua investigation of an offence, including the power to submit a report under Section 173 Cr.P.C. It was held that since a Custom Officer exercising the powers to make an enquiry, could not submit a report under Section 173 Cr.P.C., and, as such, he could not be said to be a Police Officer, within the meaning of Section 25 of the Evidence Act. 12. In Illias v. Collector of Customs, Madras, AIR 1970 (Supreme Court) 1065 = 1983 (13) E.L.T. 1427 (S.C.), the same very Bench was required to consider, if the Custom Officers under the Customs Act, 1962, were Police Officers, within the meaning of Section 25 of the Evidence Act. The Apex Court, referred to all the cases earlier decided and came to the conclusion, that they were not Police Officers within the meaning of Section 25 of the Evidence Act, as they could not present report, under Section 173 Cr.P.C. 13. In K.I. Pavunny v. Assistant Collector, 1997 (3) RCR 71 (S.C.) = 1997 (90) E.L.T. 241 (S.C.), the Apex Court reiterated the earlier view and observed that the confessional statement, made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of law. laid down, in the aforesaid cases, it is clearly evident that the confessional statements made by the accused, before the Custom Officers, under Section 108 of the Act, if found to be voluntary, would be legally admissible into evidence. The Counsel for the petitioners, however, has placed reliance on Noor Aga v. State of Punjab and Another, 2008 (3) RCR (Criminal) 633 (SC), a decision rendered by two Hon ble Judges of the Apex Court in support of her contention, that since the Custom Officers, are Police Officers, confessional statements, made by a person, before them, under Section 108 of the Act, are hit by the provisions of Section 25 of the Indian Evidence Act, 1872. In view of the principle of law, laid down, in Romesh Chandra Mehta s, Illias s, State of Punjab s and Pavunny s cases (supra) decided by larger Benches of the Apex Court, no help could be drawn, from the principle of law, laid down, to the contrary, on the same point, in Noor Aga s case (supra) decided by a two Judge Bench of the Apex Court. In this view of the matter, the submission of the Counsel for the petitioner, being without merit, must fail, and the same stands rejected. 16. The mere fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er more than six years. In these circumstances, it was held that the retraction was an afterthought, and the conviction could be based on such voluntary confessional statement. The principle of law, laid down, in Satrohan s case (supra) is fully applicable to the facts of the instant case. 18. Counsel for the petitioner has also taken me through the testimonies of the defence witnesses and has persuaded to believe the same and discard the prosecution evience. The contention is not approved. Lala Ram (DW1) and Parkash Chand (DW2) have only stated that the accused had been residing at Malout for the last about 10/12 years and about 4 years back, and the accused along with his brother was taken away from his house and involved in the false case. Prem Kumar Bansal (DW3) Inspector Food and Supply Department. Malout proved copy of ration card, while Parshotam Lal (DW4) is Senior Clerk in the office of Municipal Council, Malout who proved the enlistment of the accused as voter in M.C. Malout. Such evidence led by the accused is hardly sufficient to shake the findings of his guilt. 19. The concurrent findings, recorded by the Courts below based on the correct appreciation of the cogent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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