TMI Blog2024 (2) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment indicates, Alexander was summoned under Section 108 of the Customs Act for the second time and his statement was recorded on 19.06.2006 before the Jailer, Central Prison, Madurai. The appellant, vide summon dated 15.06.2006, was asked to appear before Senior Intelligence Officer, D.R.I., Chennai, on 19.06.2006 at 12.00 noon, to give evidence and produce documents in connection with the seizure of red sanders from M/s.Freedom Impex. The appellant had appeared before the Senior Intelligence Officer, D.R.I. at Chennai on 19.06.2006 in response to the summon. The statement recorded remain inconclusive with the noting that the appellant refused to reply to the question when confronted with the statement of John Alexander dated 19.06.2006, which was supposed to be recorded on the same day at Madurai Central Prison. In the impugned order, the conduct of the appellant his refusal to sign the statement been considered as an attended circumstances to infer his guilty. Whereas, the time and sequence apparently indicates that by all probability, the statement of John Alexander purported to have recorded in Madurai Central Prison on 19.06.2006 could not have reached Chennai and sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the order dated 30.11.2007, passed in Order in-Original No.64/2007, by the Commissioner of Customs, Tuticorin. 2 . On 24.03.2006, on specific information, DRI Tuticorin, conducted search of the Container No.CRXU 169704-8 covered under the shipping Bill No. 1590098 filed by M/s.Freedom Impex, Tuticorin, by its Proprietor John Alexander for export of 104 crates of gypsum boards. M/s.FG Global Resources, Malaysia, was shown at the consignor. 3 . The search of the cargo leads to recovery of 1.650 MTs. of red sanders, prohibited goods under the Customs Act. The red sanders were kept concealed under gypsum boards in 94 crates by creating a cut cavity inside the pile of gypsum boards. Following the seizure, the office premises of M/s.Freedom Impex was searched. The Proprietor John Alexander was secured and his statement under Section 108 of the Customs Act was recorded on 26.03.2006. The said statement found inclupatory in nature, admitting the mis-declaration also indicting T.Manivannan, the appellant herein as the abettor and supplier of the red sander logs, which is a prohibited goods. 4 . Thereafter, Manivannan s shop premises and godown were searched. Nothing incrimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a co-accused is not sustainable in view of the judgment of the Hon'ble Supreme Court in Naresh J Sukhawani vs. Union of India [1996 (83) ELT 258 (SC)] . 7 . Final Order No.322/2010 of CESTAT, dated 17.03.2010, in Appeal No.C/26/2008 was challenged by the appellant before this Court by filing C.M.A. (MD)No.1156 of 2010 under Section 130(1) of the Customs Act. The Division Bench of this Court at the time of admitting the appeal, granted stay of the order on condition that the appellant deposits 50% of the penalty and framed the following substantial questions of law for consideration:- ''(a) Whether the 1st Respondent Tribunal as a final fact finding body ought to have asked for corroboration on material particulars in the statement of co-accused John Alexander by independent evidence/material so as to rely on the same for suspending the penal liability against the Appellant? (b) Whether the 1st Respondent Tribunal has committed an error of jurisdiction in not even adverting to or evaluating the intrinsic worth of the exculpatory statements of the Appellant, which are on record in juxtaposition to the so called confessional and voluntary statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h incriminates the appellant. The three statements of the appellant recorded under Section 108 of the Customs Act is total denial and exculpatory in nature. While so, even the facts found in the statement of John Alexander, which are verifiable, were not verified by the Department and placed before the Tribunal. However, the Tribunal has held that it is the burden of the appellant to rebut those facts, which are facts not existing. He further submitted that the judgments of the Hon'ble Supreme Court rendered in Surjeet Singh Chhabra vs. Union of India reported in 1997 (89) E.L.T. 646 (SC) and K.I.Pavunny vs. Assistant Collector (HQ.), Central Excise Collectorate, Cochin reported in 1997 (90) E.L.T. 241 (SC) were misapplied to the facts of the case by the Tribunal and the facts were tweaked to suit the case of the Department. 11 . The learned Senior Panel Counsel appearing for the Customs submitted that, it is well settled principle of law that the statement recorded under Section 108 of the Customs Act is a substantive piece of evidence not only against the maker of the statement, but also against the co-accused. No corroboration to the statement is required. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 25 of the Evidence Act and so the confession statements made by an accused person to a Customs Officer is admissible in evidence against him. 16 . Having consistently held that the statement given to the Customs Officer recorded under Section 108 of the Customs Act is admissible in evidence, the Hon'ble Supreme Court has also considered the evidentiary value of retracted confession statements alleged to have been obtained under force, threat or coercion. The three Judges Bench of the Hon'ble Supreme Court in K.I. Pavunny vs. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin (cited supra), after referring to the earlier Constitutional Bench decisions rendered in Haricharan Kurmi and Jogia Hajam vs. State of Bihar (AIR 1964 SC 1184) and Nisshi Kant Jha vs. State of Bihar (1969 (1) SCC 347) and also few more judgments including Naresh J. Sukhawani vs. Union of India ( 1995 Supp (4) SCC 663 ) and Surjeet Singh Chhabra vs. Union of India ( 1997 (3) SCC 721 : 1997 (89) ELT 646 ), held as under:- ''25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve.'' 17 . The question whether the confession statement of an accused could be relied upon to prove the prosecution case against the co-accused tried in the same case, came up for consideration in Kashmira Singh vs . State of Madhya Pradesh (AIR 1952 SC 159) before Three Judges Bench of the Hon'ble Supreme Court and later by four Judges Bench in Balbir Singh vs . State of Punjab (AIR 1957 SC 216) and subsequently before the Constitutional Bench in Haricharan Kurmi and Jogia Hajam vs. State of Bihar (AIR 1964 SC 1184) . The march of law on this legal point succinctly extracted in K.I.Pavunny's case as below: - ''21. In Kashmira Singh case [(1952) 1 SCC 275 : AIR 1952 SC 159 : 1952 SCR 526], the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for a Bench of three Judges laid down the law that the Court requires to marshal the evidence against the accused excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etracted. This Court held that the evidence already on record of the police could be used to corroborate the retracted confession. 23. In Haricharan Kurmi v. State of Bihar [AIR 1964 SC 1184 : (1964) 2 Cri LJ 344], a Constitution Bench was to consider as to when the confession of a co-accused could be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co-accused cannot be treated as substantive evidence. If the Court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deducible from the said evidence, the confession of the co-accused could be used. It was, therefore, held that the Court would consider other evidence adduced by the prosecution. If the Court on confirmation thereof forms an opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the accused. It is, thus, seen that the distinction has been made by this Court between the confession of an accused and uses of a confession of the co-accused at the trial. As regards the confession of the accused and corrobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und in the portion of the statement which indicts the co- noticee. The cordinal principle an accomplice is unworthy of credit, unless he is corroborated in material particulars never to be ignored. (f) The portion of the statement indicting the co-noticee can be tested in two ways, (i) statements regarding facts which are verifiable must be verified based on evidence; and (ii) facts which are within the exclusive knowledge of the co-noticee, presumption with the aid of Section 106 of the Evidence Act can be drawn. 20 . The learned counsel for the appellant referring the statements of the appellant, which is exculpatory and total denial of his involvement in the alleged abetment to export red sanders through John Alexander and the retracted statement of John Alexander indicting the appellant submitted that, the statements read as a whole, would clearly show that the Department failed to check the veracity of facts, which are easily verifiable. Relying on the uncorroborated statement of a tainted person is contrary to the law laid by the Hon'ble Supreme Court. 21. Per contra, the learned counsel representing the Department heavily relying upon the statement of John Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. I do not know his contact phone number. 23 . On 19.06.2006, further statement of John Alexander was recorded while he was confined in Madurai Central Prison, being detained under COFEPOSA Act. He was shown a computer print out of a photograph and asked to identify. John Alexander has identified the person in the said photograph as Manivannan. It is relevant to note that the identification of Manivannan through photograph was after about three months from Manivannan was called to give his statement. Incidentally, it was also on the day when he was arrested and remanded to judicial custody. 24 . From the appellant Manivannan, three statements were recorded. First statement is on 31.03.2006, the second statement is on 04.04.2006 and the third statement is on 19.06.2006. The scrutiny of these statements reveals that the appellant had admitted that he know John Alexander of Tuticorin while he was doing garment business in the name of M/s.Raja International during the year 2000-2001. He recently spoke to Alexander over phone regarding alliance for his daughter to verify the credential of the prospective bridegroom. When the statement of John Alexander dated 26.03.2006 was sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seizure of red sanders from M/s.Freedom Impex. The appellant had appeared before the Senior Intelligence Officer, D.R.I. at Chennai on 19.06.2006 in response to the summon. The statement recorded remain inconclusive with the noting that the appellant refused to reply to the question when confronted with the statement of John Alexander dated 19.06.2006, which was supposed to be recorded on the same day at Madurai Central Prison. In the impugned order, the conduct of the appellant his refusal to sign the statement been considered as an attended circumstances to infer his guilty. Whereas, the time and sequence apparently indicates that by all probability, the statement of John Alexander purported to have recorded in Madurai Central Prison on 19.06.2006 could not have reached Chennai and shown to the appellant on the same day at 12.00 noon, when he appeared before the Senior Intelligence Officer, D.R.I. Further, by recording that the appellant had refused to sign the statement, the Department has made it as a reason to arrest him and produce before the Magistrate on the same day at about 09.00 p.m. 28. The order of CESTAT, which is impugned in this appeal, to say the least is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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