TMI Blog2020 (9) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... tation- D.R.I. Varanasi (Directorate of Revenue Intelligence), District- Varanasi. Heard learned counsel for the applicant and learned A.G.A. Perused the record. Submission of counsel for the applicant is that the applicant was travelling from Guwahati to Kanpur and he was arrested from Pandit Deendayal Upadhyay Railway Station (Mughalsarai). Submission is that there is no evidence on record that the alleged gold biscuits (3652.270 gms. amounting ₹ 1,42,07,330/) were smuggled by the applicant as the real owner of the said article is one D.K. Khan and the applicant was only carrying the said biscuits from Guwahati to Kanpur. Further submission is that the statement of the applicant allegedly recorded by the officials of Customs Department under section 108 of the Customs Act, 1962 is not volunteer statement of the applicant and the same was obtained by coercion. Shri Krishna Agarawal, learned counsel for the opposite party has opposed the prayer for bail and has submitted that as the applicant could not show any relevant paper regarding the article (gold) obtained from the possession of the applicant of such quantity, it is deemed proper that the said material was bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under the Act. The Act enlarges his powers. The Customs Officer is not a police officer nor is he empowered to file charge-sheet under Section 173 of the Code though he conducts enquiry akin to an investigation under some of the provisions of the Code. His acts are in the nature of civil proceedings for collecting evidence to take further action to adjudicate the infringement of the Act and for imposition of penalty prescribed thereunder which would be self-evident from sub-section (4) of Section 108. Further in the year 2009 Hon'ble Apex Court has well considered the abovenoted facts and in the judgment of Union of India Vs. Padam Narain Agarwal Etc. AIR 2009 SC 254 has observed as follows :- Sections 107-09 confer power on Custom Officers to examine persons, to summon them to give evidence and to produce documents. 55. Section 108 which is a material provision, reads thus; Power to summon persons to give evidence and produce documents.--(1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost . (emphasis supplied) 59. It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by Police Officers during the course of investigation under the Code. After perusal of the aforesaid judgment, it is very clear that the statement recorded under Section 108 of the Act is admissible as evidence, hence, the arguments advanced by the applicant is not sustainable. Lastly, learned counsel for the applicant has also tried to place reliance upon the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not deserves any indulgence. They have submitted that the contention of the learned counsel for the applicant that the applicant has not committed any crime has only been stated to be rejected on the ground that the applicant was apprehended with huge quantity of the smuggled foreign origin gold along with the co-accused Sanjay Kumar Agrwal. Both the accused could not show any valid papers of the impugned gold bards and categorically admitted in their statement tendered under Section 108 of the Act, that the same were smuggled from neighbouring country Bangladesh and the specific marks have intentionally been erased so as to avoid identification. They have further submitted that the contention of the learned counsel for the applicant that the applicant is not the owner of the alleged gold bars as nothing has been recovered from his possession is also liable to be rejected on the ground that on the information received, when the officers of D.R.I. intercepted the applicant and the co-accused Sanjay Kumar Agrawal, upon enquiry whether they were carrying any contraband/gold bars etc., they accepted that they were carrying foreign origin gold bards with them concealed in waist belt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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