TMI Blog2011 (1) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... gled. Though this statement is sought to be retracted after two days in the bail application which is not signed by the petitioner but by his counsel wherein it has only been written that the confession was coerced from him and the same stands withdrawn. This is not a proper retraction but a defence sought to be laid. This so called retraction does not cast a doubt on the voluntariness of the confessional statement. It is a settled legal principle that under Section 30 of the Evidence Act, confession of co-accused can be used only to lend assurance. Petition dismissed - decided against petitioner. - Crl. Rev. P. No. 261 of 2007 - - - Dated:- 14-1-2011 - Mukta Gupta, J. Dr. Surat Singh, Advocate, for the Petitioner. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner gave his statement in his own handwriting under Section 108 of the Customs Act vide Ex.PW1/A wherein it was inter alia stated that he has a shop at Mori Gate where he was selling tractor parts which is closed for the last 10 months and since then he is doing in the sale and purchase of tractor parts by roaming around; since his business was not doing well he was in difficulty; when he met his old friend Sushil Jain who was studying with him in school and college, who has a shop of gold jewellery at Beadon Pura, Karol Bagh; around 8-10 days ago Sushil Jain told him that in case he had money he could tell him some work and told that if the gold of foreign origin was purchased and melted to make it Vitoor and taken to Madras, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner contends that both the learned ACMM and the learned Additional Sessions Judge committed grave illegality in convicting the petitioner in the absence of substantive evidence, on the basis of statement under Section 108 of the Customs Act. It is argued that the gold recovered from the petitioner was of Indian origin and hence no offence is made out. In the absence of the foreign marking on the gold which finding of fact has been arrived at by both the Courts below, the petitioner cannot be convicted of the abovementioned offences. Reliance is placed on UOI v. Bal Mukund and Ors., JT 2009 (5) SC 45 to contend that confession of the accused cannot be the basis of conviction and the same can be used only to lend credence. Reliance on Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that they are not smuggled goods. The panchnama which talks about the gold being smuggled is duly signed by the petitioner. The statement of the petitioner recorded under Section 108 of the Customs Act is in his own hand writing and till date there is no allegation that the same was taken from him after beating or using any unlawful means. Reliance is placed on Kanhaiyalal v. Union of India, 2008 (1) JCC (Narcotics) 23, UOI v. Satrohan, 2008 (3) JCC (Narcotics) 182 and Remmatullah v. Narcotics Control Bureau, 2008 (3) JCC (Narcotics) 174 to contend that the conviction can be simply based on the confessional statement recorded under Section 108 of the Customs Act. I have heard learned counsels for the parties and perused the record. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and was recorded by the petitioner at the dictation of PW2 and was got signed from him. Thus, the suggestion itself shows that there is no allegation of torture and moreover the statement is written in his own handwriting whereas the explanation under Section 313 Cr.P.C. is that he was forced to sign on blank paper. 7. I find no merit in the contention of the learned counsel for the petitioner that in the present case, the conviction has been based only on the statement of the petitioner recorded under Section 108 [Customs Act]. The possession of gold has been proved and the fact that it is of foreign origin has been proved by the statement of the petitioner recorded under Section 108 of the Customs Act. Under Section 123 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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