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TMI Blog2007 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Feeling aggrieved thereby, the petitioner preferred an appeal before the Tribunal which vide its order dated 13/1/1998 while upholding the order-in-original passed by the Commissioner dismissed the appeal. Hence, the writ petition. 3. We have heard Mr. Rajendra Prasad, learned counsel for the petitioner and Mr. Tej Prakash Sharma, learned counsel for the respondents. 4. Mr. Rajendra Prasad, learned counsel for the petitioner argued that the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 submitted that the authorities below have arbitrarily disbelieved the explanation offered by the petitioner in a most perfunctory manner. Eight gold biscuits which were seized from his premises were of M/s.Ashish Jewellers and the petitioner would have only earned Rs.100/- per biscuit as profit for getting the work of Kundan done on them. These gold biscuits were delivered to the petitioner by Mr. Ashok Suri of M/s.Ashish Jewellers who had received such gold biscuits from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 false report or a fabricated story. Reference was made to the order of this Court dated 25/1/1994 whereby bail application of the petitioner was rejected by this Court after consideration of the aforesaid statement. 11. Mr. Tej Prakash Sharma further argued that the order-in-original passed by the Commissioner was based on correct appreciation of all the facts and circumstances of the case and consideration of the material on record including the defence set up by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrency 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, the petitioner could not justify his possession of such seized goods or articles and could not produce any evidence about their genesis. Falsehood of the explanation later given by the petitioner stands proved if what he has stated is considered in the right perspective in that the petitioner sought to develop this story on the basis of the affidavit of Mr.Ashok Suri dated 27/12/1993 that the petitioner went to his shop on 16/12/1993 and received eight gold biscuits and that Mr. Ashok Suri hande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. It is not in dispute that the petitioner was in custody on 20/12/1993 when the letter of retraction was allegedly sent. But then, the respondents have denied having received that letter on that day and contend that in fact the said letter was received as late as 6/1/1994. This letter has not been sent through jail authorities. It would thus be evident that the letter was sent by someone else, presumably at the behest of the petitioner. Allegation of duress and all that has been stated in the aforesaid let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in Ramesh Chandra Mehta Vs. State of West Bengal : AIR 1970 SC 940 reiterated with reference to Section 24 of the Evidence Act that custom officer is not a police officer and so is person whose statement is recorded is not "a person accused of the offence" in the meaning of Section 24 of the Evidence Act till a complaint is filed against him in the court of competent jurisdiction of the Magistrate to take cognizance of the offence and summons are issued. In so far as relevant to the controversy involved in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfession 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 case corroboration is required on material particulars of the prosecution case. Each case would, therefore, required to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of a given set of facts. The high degree of proof and probative value is insisted in capital offences". 22. In view of the aforesaid discussion, we are not inclined to accept the argument of the petitioner that his statement recorded under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises 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 be declared to have become vitiated. This argument ignores that the search eventually yielded positive results for the customs department and that gold biscuits having foreign marking, foreign currency inasmuch as Indian currency with other suspected items were recovered from the premises of the petitioner for which no valid explanation was offered by him. We would nonetheless examine the strength of this argument. Although it is correct that according to Section 105 of the Act, the Assistant Collector or the officer empowered by the Board cannot mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 is not attracted, the prosecution can discharge its burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the good in question were smuggled goods. We may in this connection refer to para 10 and 18 of the report, which for the facility of reference is reproduced hereunder:- "10. Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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