TMI Blog2019 (1) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, denial of cross-examination of co-accomplice who have allegedly retracted their statements is of no consequence as far as the appellant is concerned. An order of a quasi judicial officer is sustainable if the finding arrived therein are based on preponderance of probability and other overall evidences and documents on record. Whether the finding arrived in the impugned order is solely based on the statements of co-accomplices or based on preponderance of probability or not is something which can be examined only before the Appellate Commissioner and not in a writ proceeding - Scope of writ petition and the extent to which courts can interfere under Art. 226 is limited. The appellant should therefore explore options before the Appellate Commissioner and place all legal and factual submissions there. The remedies sought for by the appellant before this Court is available to him before the Appellate Commissioner. The Appellate Commissioner can on proper examination of records can come to a just conclusion. As the jurisdiction to interfere is very limited, we would not like to pass orders on merits particularly in view of the statements which appears to have been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of these persons have also withdrawn their retractions. 7. Statements were also recorded from the appellant. During investigation the appellant was tight lipped and had refused to give any categorical statement relating to his role and reserved his right to give a reply later. He however appears to have given statements on 22.2.2017, 5.3.2017, 24.4.2017 and 3.7.2017 relating to the role played by him in the smuggling. Copies of the statements are not before us. 8. The appellant replied to the show cause notice dated 18.08.2017 issued by the 2nd respondent and to the other co-notices which culminated in the impugned impugned Order in Original No.TCP/Cus.PRV/JYC/055-17 which was passed by the 1st respondent. 9. The learned counsel for the appellant submitted that the ends of justice would be met if the case is remitted back to the original authority instead of directing the appellant to workout his remedy before the Appellate Commissioner as the impugned impugned Order in Original No.TCP/Cus.PRV/JYC/055-17 passed by the 1st respondent was passed in gross violation of the principles of natural justice in as much as none of the persons whose statement was obtained have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore submitted that the present case also can be remitted back to the original authority by directing the 2nd respondent to produce co-noticees to allow the appellant to cross examine them. 13. Per contra, the learned counsel appearing for the respondent submitted that the impugned order passed and the order passed by the learned single Judge cannot be disturbed. It was submitted that the appellant has an effective remedy by way of right of appeal before the Appellate Commissioner against the order passed by the 1st respondent and therefore the writ petition was rightly dismissed giving liberty to the appellant to file an appeal. 14. It was submitted that there is no violation of principles of natural justice merely because the persons who gave statements were not presented for cross-examination by the appellant. 15. It was further submitted that these persons are the appellant's own employees, partner and partner s brother who have participated in the smuggling of the gold along with the appellant and therefore if the appellant wanted to cross examine them, he could produce them for cross examination. 16. It was submitted that to dilute evidentiary value of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and crossexamination by the petitioner. 20. Thus, if there was confession by the person himself admitting to the role played by him, the requirement of summoning his co-accomplices for cross-examination can be dispensed. 21. The Hon ble Supreme Court in Alok Nath Dutta v. State of W.B. [(2007) 12 SCC 230 : (2008) 2 SCC (Cri) 264 : (2006) 13 Scale 467] held as follows:- 125. We are not suggesting that the confession was not proved, but the question is what would be the effect of a retracted confession. It is now a well-settled principle of law that a retracted confession is a weak evidence. The court while relying on such retracted confession must satisfy itself that the same is truthful and trustworthy. Evidence brought on record by way of judicial confession which stood retracted should be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. 22. The Hon ble Supreme Court in Nathu v. State of Uttar Pradesh [AIR 1956 SC 56] held that confessions of co-accused are not evidence but if there are other evidence on which a conviction can be based, they can be refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of form but of substance. In our opinion they are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to-cross-examine them. 28. In the present case, the 1st respondent has relied on the statements of appellant and co-accomplices while passing Order in Original No.TCP/Cus.PRV/JTC/055-17 dated 07.12.2017. They are his employees and partners and partner s brother who are either absconding or are not traceable and cannot be produced for cross examination. 29. They have reportedly retracted their statements recorded under Section 108 of the Act though some of them have withdrawn their retractions and have stated that their original confessions to be true in their later statements. From the order impugned in the writ petition, it appears that certain ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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