TMI Blog2007 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case is that the Customs officials of Udaipur and Jodhpur range jointly conducted search of the shop and residential premises of the petitioner and prepared a Panchnama/Seizure Memo and seized eight foreign marked gold biscuits, 1067 US Dollars, 15 Singapore Dollars and Indian Currency worth Rs.11,10,000/-. Statement of the petitioner under Section 108 of the Customs Act 1962 (for short, "Act") was recorded on 19/12/1993. A show cause notice dated 3/6/1994 was issued to the petitioner as to why (a) eight gold biscuits under Section 111(b), (b) foreign currency notes under Section 111(d), (c) Indian Currency notes and (d) other material be not confiscated under Section 119(1) of the Act and penalty should not be imposed on him in respect of each of the above three under Section 112(b) of the Act. The petitioner submitted reply to the show cause notice on 3/2/1995. Commissioner, Central Excise Customs, Jaipur upon consideration of the entire material on record and explanation putforth by the petitioner, passed the final adjudication order on 27/30.10.1995 thereby confiscating the aforesaid articles and imposing Rs.20,000/- as penalty upon the petitioner and one Ashok Suri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents and such statement being in the nature of confession, could not be relied and acted upon as against the petitioner. The statement having been recorded under the fear of physical pain was not a voluntary statement and, therefore, being hit by Section 24 of the Evidence Act, 1872 was inadmissible in evidence. 6. It was argued that the petitioner apart from running the STD, was dealing in the exchange of mutilated currency notes and it was in connection of his this business that the Indian currency notes were found in his premises. Indian currency was not a notified item under sub-Section (2) of Section 123 of the Act and therefore no presumption under Section 123 of the Act for that article could arise. The petitioner produced ledger and cash book in which cash was duly accounted for and it was also shown in the return of the relevant period filed before the authorities of Income-tax Department. Authorities below have erred in drawing presumption in an arbitrary manner that the Indian currency was the sale proceeds of the smuggled gold biscuits and such inference was wholly unfounded and baseless. 7. As regards the Gold biscuits of foreign marking, it was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevented him from disclosing this at the time of preparing panchnama on 18/12/1993 itself. The letter of retraction dated 20/12/1993 was in fact anti-dated which is proved from the fact that it was received in the department belatedly on 6/1/1994. The petitioner has also not mentioned anything in his statement about the facts aforesaid regarding Ashok Suri and Shankardas Vadhvani of whose names he sought to introduce subsequently. Allegation contained in the letter of retraction that his statement was recorded under duress coercion and under the fear of physical pain is totally baseless. It was argued that this story has been concocted by the petitioner much subsequently to save himself from the clutches of law. The papers including panchnama dated 18/12/1993, the aforesaid statement recorded on 19/12/1993 etc. were produced before the Special Magistrate (Economic Offences) Rajasthan, District Judge, before the Sessions Judge and even before this Court when the bail application of the petitioner was considered on different dates and till that time, no such case was set up before any of the court by the petitioner or his advocate on his behalf that the respondents have prepared a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 of the Evidence Act and would be admissible in evidence. Mr. Ashok Suri for whom petitioner stated that he received the gold biscuits from K.N. Babu under a baggage receipt, in his statement denied having met the aforesaid K.N. Babu and also stated that he did not know him. 14. As regards the foreign currency, it was argued that Section 2(22) of the Act defines the foreign currency as goods attracting Section 110 of the Act. From the evidence of this case, it was proved that foreign currency was being purchased as smuggled goods and its unlawful acquisition was also proved. The petitioner also failed to prove about gold biscuits having foreign marks that the same were not illicitly imported or were possessed by him legally as required by Section 123 of the Act. Apart from the aforesaid articles, the manner in which 1000 U.S. Dollars were found in the cavity of a wooden chowki, secret jackets having concealed pockets and two paper slips indicating transactions in gold, were recovered and seized in the presence of the petitioner and his brother and independent witnesses with a pointed note in the panchnama, clearly proved those articles to be smuggled once. On being asked, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the statement was recorded on 19/12/1993, the petitioner on the following day i.e. on 20/12/1993 retracted the said statement, we must begin with noticing that although both sides agree on the fact that the aforesaid statement of the petitioner was recorded on 19/12/1993 and that he was arrested also on 19/12/1993 but no definite pleadings have come from either side as to which of the events preceded the other. This is however not a very significant aspect of the matter because even if it is accepted that the statement of the petitioner was recorded when he was in custody, it would nonetheless be a validly recorded statement under Section 108 of the Act. There is no material on record nor are there any such contemporaneous circumstance to support, let alone substantiate, the allegations of duress and coercion. We have to however examine as to what would be the effect of the letter of retraction dated 20/12/1993 as to the admissibility or otherwise, of the aforesaid statement and further whether the allegations contained in that letter of retraction inspire so high a confidence that they should be accepted in preference to the statement recorded under Section 108 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that purpose to search any person or premises on reasonable suspicion. Mere fact therefore that when statement of the petitioner was recorded he was in custody of the custom officials would not make any difference and make the statement less acceptable. A person arrested by a Custom Officer in such circumstances when asked to make a statement, is not an accused of an offence within the meaning of Article 20(3) of the Constitution of India because the Custom Officer is not a police officer within the meaning of Section 24 of the Evidence Act. Law is therefore clear on the subject that the statement of a person u/s.108 of the Act in adjudicatory proceedings against him cannot be discarded just because he has later retracted it. 20. Question as to what should be the evidentry value of a retracted statement recorded during confiscation proceedings under Section 108 of the Act, came up for consideration of the Hon'ble Supreme Court in K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin : [1997] (90) E.L.T. 241 (SC): (1997) 3 SCC 721. Their lordships in that case while following the law laid down by the Constitutional Bench judgment of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise like any other person as was held in Bhagwan Singh v. State of Punjab (1) (AIR para 30). If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the 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 in accomplice in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer who in turn could further authorise any other officer to conduct the requisite search. In other words, the officer with delegated powers has been permitted to further delegate the powers so as to effectuate the object of the enactment and ensure its effective implementation. The respondents have in this respect made a specific reference to the notification of the Government dated 30/1/1970 specially its para 1(a) according to which a Gazetted Officer of Customs and Central Excise has been authorised under Section 105 of the Act to search the premises and it has not been disputed before us that Superintendent of Customs is a gazetted officer. We are therefore not inclined to accept this argument of the petitioner. 24. This now takes us to the next argument of the petitioner that there was no reason for the aforesaid belief of the Custom Officer particularly when no such reason has been recorded anywhere as to what was the information and from whom such information was received on the basis of which the aforesaid officer entertained such belief and therefore it should be presumed that there did not exist any reason and the search, seizure and confiscation on that basis should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of law that if the custom officer taking into consideration various compelling circumstances has reasonable belief that the seized goods are smuggled goods and the person from whom these contraband are seized has not satisfactorily explained the possession of the same as required by Section 123 of the Act that they are not smuggled goods and if prima-facie there are grounds for justifying the belief, the courts have to accept the belief of the officer and cannot substitute the conclusions of the fact finding authority just because they have a different perspective of the matter. 27. We may at this juncture refer to the judgment of the Hon'ble Supreme Court in State of Maharashtra Vs. Natwarlal Damodardas Soni : 1983 E.L.T.(13) 1620 (S.C.) which was heavily relied upon by the learned counsel for the respondents. Their lordships while considering the case of seizure in the Customs Act, 1962 categorically held that even if the search was eventually found to be illegal, then also, it will not affect validity of the seizure and further investigation by the customs authorities. Besides this, their lordships also held that in cases where Section 123(1) of the Customs Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir statement on different dates but the Commissioner has examined the matter in totality of the circumstances and then recorded his findings. 29. Applying the test laid down by the Hon'ble Supreme Court in State of Maharashtra Vs. Natwarlal Damodardas Soni , supra, it can be said that the respondents have in the present case discharged their burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the seized articles and the currency notes were smuggled goods and their sale proceeds. These findings though recorded on the touch stone of the relevant provisions of law contained in the Act, are essentially findings of fact. Scope of interference by this Court in exercise of its writ jurisdiction of certiorari in such matters is very limited and that is made only when the impugned-order passed by the subordinate tribunal suffers from any error apparent on the face of record. In the present case, we find none. 30. In view of what has been discussed above, we do not find that the impugned-order-in-original passed by the Commissioner dated 27/30.10.1995 and subsequent order dated 26/12/1997 passed by the Tribunal suffe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
