TMI Blog1988 (7) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ulam. The officers of the Central Excise and the Customs Department got secret information that smuggled gold articles were hidden in the residential compound of the accused. P.W. 2 Superintendent of Customs (Preventive and Intelligence Unit), Cochin, accompanied by a team of officers of the Customs Department conducted a search of the house and premises of the accused on 6-12-1980. A box made of teak wood was disinterred from the courtyard. The box contained two hundred gold biscuits wrapped up in two bundles. Those articles were assayed by a goldsmith. Samples of them were got examined in the Mint. The result of such examinations revealed that the gold in question had twenty-four carat purity. Ext. P3 mahazar was drawn up by P.W. 2 for seizure of the gold biscuits along with the wooden box and the wrapper. Ext. P4 is the statement given by the accused (under his handwriting and signature), as per Section 108 of the Customs Act. 3. The accused did not dispute the fact that the gold biscuits were unearthed from his courtyard and that all such gold biscuits are smuggled goods within the purview of the Customs Act, and that they are "primary gold" within the meaning of the Gold (Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in that prosecution. Explanation. - "In this Section, culpable mental State" includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 7. Can the presumption envisaged in the aforesaid provisions be stretched to the point that the person from whose property the contrabands were recovered, knowingly possessed them? The presumption is evidently in favour of culpable mental state which is required to constitute the offence. It arises only in cases where a culpable mental state is required to constitute the offence. Though culpable mental state includes knowledge "of a fact", that should be what is required to make up the offence. Section 135 of the Customs Act, which is the penal provision, envisages a particular knowledge to constitute the offence. If any person acquires possession of any goods "which he knows or has reason to believe are liable to confiscation", such acts shall be punishable with the punishment prescribed therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cannot be found guilty of the offence merely on the strength of recovery of such goods from his property. 8. The facts here are different. The spot wherefrom the wooden box was disinterred is only two feet north of the northern wall of the "prayer room" of the accused's house. The prayer room has a spacious window on the northern wall. The "dining hall" adjoins the prayer room. The dining hall also has a spacious window on the northern wall. The main bed room adjoins the prayer room on the west. These features have been gathered from Ext. P15 plan of the building. It is not disputed by the accused that the building was constructed exactly in consonance with the plan. These are broad aspects which cannot be ignored in determining the question of conscious possession of the goods concerned. It does not stand to reason that any person other than the accused would have chosen the aforesaid spot to hide such enormously valuable gold articles from the sight and knowledge of all others. If an outsider has to conceal such valuables, he would never have selected such a spot which is so easily visible to the inmates of the house, particularly those who daily (if not frequently) use the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in this case. But it is the height of improbability to assume that P.W. 3 would have buried the articles in the place wherefrom they were disinterred without the consent of the accused, if not without the active participation of the accused. On broad probabilities, it is illogical to assume that if P.W. 3 had been the owner of the gold, he himself would have given information to the Customs authorities about the place of concealment and betray his own secret possession of enormously precious wealth. If P.W. 3 had passed any such information to the officials, the least which could then be inferred is that the valuable did not belong to him. The lower court failed to consider this broad probability when it accepted the defence contention that P.W. 3 would have leaked the information to the officials after having concealed it in the courtyard of the accused. 10. The most important item of evidence relied on by the prosecution is the statement of the accused in Ext. P4. It is a statement recorded as per statutory provision because Section 108 of the Customs Act empowers any gazetted officer of the Customs to summon any person whose attendance he considers necessary to give eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion used in Section 24 is "an accused person" whereas the expression used in Sections 25 and 27 is "a person accused of any offence". Statements recorded under Sec. 108 of the Customs Act were Impugned in some cases as offending Section 25 of the Evidence Act and Article 20(3) of the Constitution of India. Constitution affords protection to accused persons against testimonial compulsion through Article 20(3). The expression used in the Article is "person accused of any offence" - The challenges were repelled by the Supreme Court on the twin ground that Customs Officer is not a police officer and the person whose statement is recorded during enquiry is not "a person accused of any offence", although that person becomes an accused subsequently. (Vide Ramesh Chandra v. State of W.B. AIR 1970 S.C. 940 and Veera Ibrahim v. State of Maharashtra AIR 1976 S.C. 1167) = 1983 E.L.T. 1590 (S.C.). As early as 1960, a Constitution Bench of the Supreme Court in State of U.P. v. Deoman (AIR 1960 S.C. 1125) has held as follows : "The expression, "accused person" in S. 24 and the expression "a person accused of any offence" in S. 25 have the same connotation, and describe the person against whom e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fession for perjury is also insufficient to sideline the confession. Section 24 will continue to remain out of reach unless such inducement or threat or promise is sufficient to afford grounds to suppose that he would be a gainer by making the confession. 14. In the present case the trial court did not consider the aforesaid important aspect even though the statement in Ext. P4 was found to have been extracted through compulsion. Neither P.W. 2 nor P.W. 5 has stated that the accused was given any impression that by making the statement he would get some advantage. On the other hand Ext. P4 itself contains a recital that P.W. 2 told him in advance of the consequences of such a statement and also that the statement would eventually be used against the maker. The accused is a businessman in Cochin. He has studied up to S.S.L.C. Ext. P4 was written in his own handwriting. Absolutely nothing has been elicited from any of the witnesses that the accused had at any time supposed that by making the statement he would score any advantage". In P. Rustomji v. State of Maharashtra (AIR 1971 S.C. 1087) = 1983 E.LT. 1590 (S.C.) the Supreme Court has observed thus:- "It is not every threat, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traband articles taken out from his courtyard and that too in his presence. 16. There is yet another circumstances which ensures confidence about the truth of the statement contained in Ext. P4. The stand of the accused is that he disowned the statement recorded in Ext. P4 for the first time on 15-12-1980. The statement was recorded and signed by him on 7-12-1980. He was released on bail by the court on 7-12-1980 itself. What would have been the normal conduct of a person placed in the position of the accused when he became a free man by evening of 7-12-1980? If he was made to write untrue statements implicating him in a substantial way, I have no doubt that the first thing which would, in all probabilities, have done was to inform the court or at least the higher officials in the Customs Department about what happened. Accused is not an uneducated or helpless person. His business place is situate in a commercially important area very near to Broadway, Ernakulam. He has other partners in his business enterprise and there are employees working under him. Why did he not raise a little finger until 15-12-1980 against the serious offence committed against him by P.W. 2? He made a fee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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