TMI Blog2014 (7) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements. The defence was successful in creating doubt in the mind that the vessel Rajendra Jyoti was not the only vessel berthed at the Hay Bunder during that period but nearly 25 vessels had arrived and, therefore, the possibility that any other person might have thrown the tin filled with gold bars in the sea could not have been overruled. - the trial Court has taken an evenly balanced view while assessing the evidence and, therefore, there is no need to disturb the finding of the trial Court. - Decided against the revenue. - Criminal Appeal No. 440/1994 - - - Dated:- 10-7-2014 - Mridula Bhatkar,JJ. For the Petitioner : Ms. A. A. Mane For the Respondents : Mr. Shantanu Phanse i/b A. H. Solkar, Jahangir A. Khan, Ms. Alpa Javeri JUDGMENT 1. The appeal is directed against the judgment and order of acquittal dated 17.1.1994 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Bombay, thereby acquitting the respondent from the offences punishable under section 135 (1)(a)(i) and 135 (1)(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. 2. It is the case of the prosecution that the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sea was recorded under section 108 of the Customs Act. The cargo bags in which the gold bars were seized in which they were carrying wet dates were also shown and that was also seized by the customs. Statements of all the 12 crew members were also recorded under section 108 of the Customs Act, who have stated that they were with the respondent threw gold bars in the sea. The accused was thereafter arrested under section 104 of the Customs Act on 12.5.1987 and was produced before the JMFC and sent to the judicial custody. A complaint was presented before the learned Judge on 7th June, 1988. The Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, framed charge on 10.7.1989 against the respondent under section 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act and under section 5 of the Imports and Exports (Control) Act. 3. The prosecution in support of its case has examined 5 witnesses, namely, Akhilesh Kumar (PW1) who was an intelligence officer at Hay Bunder, Narendrakumar Kasturilal Punjabi (PW2) who was working as Superintendent, Rummaging and Intelligence, Shah Alam Qureshi (PW3), a panch of seizure panchanama, Narendra Dayaram Koteja (PW4) another panch for repa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h statement of the accused may be a confession but is admissible in evidence as the customs officer is not a police officer. 5. In support of her submissions, she relied on the decision of the Supreme Court in the case of K.I. Pavunny vs. Asstt. Collector (HQ), CE Collectorate, Cochin 1997 (69) ECR 209 (SC) ; the decision of Calcutta High Court in the case of Extrusion vs. Collector of Customs 1994 (70) ELT 52 (Cal.); and of Customs, Excise Gold (Control) Appellate Tribunal, New Delhi in Chander Kant Modi Ors. vs. C.C, Delhi 2001 (132) ELT 375 (Tri. - Delhi). 6. Learned Counsel for the Respondent No.1 supported the judgment of the trial Court and argued that the panchas of search and seizure panchanama did not support the prosecution. He argued that the conviction cannot be based solely on a statement of the accused recorded under section 108 of the Customs Act. He submitted that in the absence of any corroborative evidence especially the evidence of panchas, panchanama is not proved and, therefore, no value can be attached to the statement of the respondent-accused recorded under section 108 of the Customs Act. He further submitted that the statements of the crew memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point of statement made by the respondent and recording of statement under section 108 and thereafter finding of gold in the combing operation on 10.5.1987 and 11.5.1987. The gold was recovered in two parts and it was seized and sealed, Both of them have stated that the Panchanama to that effect was made, PW Shah Qureshi is the panch. He has deposed that he was called by the customs officer on 9.5.1987 at Hay Bunder at around 9.15 am and the panchanama continued till the next day. He has stated that the other panch Tulsidas was also present. He has stated that PW1 and PW2 were also present. However, he did not support the case of the prosecution and only deposed that he signed the panchanama in the customs chowki and the officers told him that the contraband gold was recovered from sea water. He admitted his signatures but he showed ignorance about the contents in the panchanama. He refused that the respondent made confession before the customs officers in his presence that he had smuggled 53 gold bars and then, he dumped those gold bars in the tin container and sealed the container and threw them in the sea. The fact of recovery of gold from the sea which is produced before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed to be before the judicial proceeding within the meaning of sections 193 to 228 of the Indian Penal Code and it is not for the purpose of convicting an accused under any other statute including the provisions of the Act. It is also observed that Article 20(3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself and thus, a statement recorded under section 108 of the Customs Act must give way to Article 20(3) wherever there is a conflict between the two. The retracted confessional statement may be relied upon with rider that if it is made voluntary and the burden of proving such voluntary action is on the prosecution. The Supreme Court also dealt with the effect of retracted confession and held that it is a weak evidence and it can be used only if it is found truthful and trustworthy if substantially corroborated by other independent and cogent evidence. 12. In Kanhaiyalal VS. Union of India (supra), the Supreme Court has o held that there is a necessity of corroboration in the case of retracted confession in order to base conviction thereupon. If the circumstances of a particular case raised doubts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members, when the same were relevant u/w 108(b) of the Customs Act, it was the duty of the Prosecution to examine either the interpreter or the scribe and record their statements in order to confirm the veracity of the contents of the statements. PW2 Narendrakumar Punjabi in his further cross-examination has admitted that it was difficult to say who has endorsed read over, translated and explained the above statements and accepted by the crew member as correctly recorded . 16, Thus, these statements cannot be attached much value, However, this evidence was available to the prosecution. It was further pointed out to me that at the relevant time i.e., between 1.5.1987 and 6.5.1987 that in the further cross-examination of PW2, he admitted that from 1.5.1987 to 6.5.1987, arrival entries of 25 ships were made in the arrival register and only one vessel had departed between and only one vessel had departed between 1.5.1987 and 6.5.1987 and on 9.5.1987, 6 vessels had arrived and on 10th May, 1987, 4 vessels had arrived. Thus, the defence was successful in creating doubt in the mind that the vessel Rajendra Jyoti was not the only vessel berthed at the Hay Bunder during that period but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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