TMI Blog2018 (4) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 to 4 hours. In fact Mrs. Mane submitted statements were recorded after concluding house search panchanama. Question is why accused were detained in office for whole night ? Why Appellant could not clarify at what time statements of accused under Section 108 of the Customs Act were recorded ? As informed accused were arrested on 9.1.1988 at 10 a.m. i.e. next day. In these circumstances, it can be safely concluded that both the accused were detained in the office of the Customs for whole night and thus, the contention of the Appellant that the statements were voluntary and were not influenced by the authorities cannot be accepted. Both the statements recorded under Section 108 of the Customs Act, 1962 were not voluntary statements in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has and found that he was having one paper wrapped heavy packet in his banian pocket containing three gold biscuits of foreign origin. He was removed by the officers at Everest House and three gold biscuits of foreign origin were recovered weighing 349.800 gms valued at ₹ 1,14,000/. Biscuits were seized by the officers under reasonable belief that same were smuggled in contravention of the provisions of the Customs Act, 1962 and Gold (Control) Act, 1968. It is the complainant's case that the statement of Accused No.1, Kashiram Karade was recorded under Section 108 of the Customs Act, 1962 wherein he disclosed that he was working with M/s. Shah Rupchand Tarakchand and Company at Zaveri Bazar owned by the Accused No.2, Mr. Jayantila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31.8.1994. 7. That aggrieved by the order of acquittal, Assistant Collector of Customs has preferred this appeal. 8. Heard Mrs. Mane, the learned counsel for the Appellant and Mr. Abbas Mookhtiar the learned counsel for the Respondent-Accused No. 2. 9. It may be stated that vide order dated 5.6.2002, the case of the Respondent No.1 is separated since notice could not be served to him despite all efforts were made. That as such this appeal now proceeds only against the Accused No.2. 10. Mrs. Mane the learned counsel for the Appellant has taken me through the statements of the Accused No.1 recorded under Section 108 of the Customs Act, 1962 on 8.1.1988 a date on which biscuits were recovered from Accused No.1. I have gone throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld further submit that statements of the Accused No.1 were not under Section 161 of the Code of Criminal Procedure and being inculpatory, the trial Court ought to have held the said statements as substantive evidence. However, having not done so has committed illegality and further committed mistake by recording the acquittal. 13. On the other hand, Mr. Abbas Mookhtiar appearing for the Accused No.2 has taken me through the evidence of P.W.1 and P.W.2. So far as the evidence of P.W.2 is concerned, he is the person at whose instance, statements of the accused were recorded under Section 108 of the Customs Act. I have gone through his evidence. At the relevant time, he was working as Superintendent of Customs and posted at M P Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the same was retracted by him on 14.1.1988. In support of his submission, he has taken me through the evidence of P.W.2 who has stated in his cross-examination that I received retraction letter issued by the Accused No.2 Jayantilal on 15.1.1988. We replied to the letter of the Accused No.2 on 20.1.1988 . Mrs. Mane the learned counsel for the Appellant when confronted with this portion of evidence and was called upon to answer as to how this has been dealt with by the learned Judge while weighing and appreciating evidence, she could not give any satisfactory reply as both the letters dated 15.1.1988 as well as reply dated 20.1.1988 were not found on record. 16 Be that as it may, the fact remains that Accused No.2 had retracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs and panchanama was concluded on the same day at about 3.30 p.m. He would further submit that house and office of Accused No.2 was searched on the same day and panchanama were concluded at 6.30 p.m. and thereafter statements under Section 108 were recorded. As against this the learned counsel for the Appellant was asked to ascertain at what time statements of Accused Nos.1 and 2 recorded under Section 108 were concluded. She could not answer at what time both the statements of the Accused Nos.1 and 2 were concluded. I have perused the statements. However, I could not find time at which statements were recorded and concluded. This query was made to ascertain for what purpose both the accused were detained in the office for whole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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