TMI Blog1991 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation of the gold bars and gold stick are concerned it is the case of the writ petitioner that this is a matter of complete irrelevance to him, because he never owned nor possessed nor had anything to do with the same. His only grievance is against the imposition of penalty. 3. In fact, the question of possession of the three items of gold form the central issue which gave rise to the instant matter. The case of the prosecuting customs authorities is that these gold items were found in a bag which was being carried by Manindra Chandra Dey. He entered the shop room of one Prakash Yadav, a small businessman carrying on trade in gold and, apparently, travel agency. The apprehension took place at the instance of one Nepali boy whose name and address are mentioned in the show cause notice annexed to the writ petition. The surname of the Nepali boy is Shreshtha. It is surprising that though the Nepali boy's name and the address are given, yet the authorities have satisfied themselves by mere recording in the orders that the Nepali boy is absconding. Apparently, the Nepali boy gave a statement. This will appear from page 90 of the annexures to the writ petition where the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis on the delay that occurred (5 days) between the confessional statement and the retracting statement. No doubt if a retracting statement comes after a certain lapse of time its weight is naturally reduced. There is a clear cut distinction between the admissibility of a piece of evidence and the weight to be attached to it. Unfortunately, the learned Tribunal proceeded on the basis that because of delay for a few days the retracting statement will not be considered at all. There is no balancing attempted by the Tribunal as between the statements made in the confessional statement and the retracting statement. I am not to sit in appeal over the assessment of any piece of evidence by the Tribunal. However, after I find that a particular piece of evidence has not been considered at all because of the Tribunal labouring under a wrong impression of law, then indeed this jurisdiction in the writ Court has to be exercised and the decision arrived at by the Tribunal is to be set aside. 7. In regard to the above approach of the Tribunal in dealing with the question whether the retracting statement is to be taken into consideration at all or not, the portion of the decision appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 11. In considering the circumstances under which a confessional statement becomes inadmissible by reason of it not being voluntary the Tribunal again quoted a relevant and apposite decision. At page 111 of the annexures it appears that the Tribunal relies upon the case of Swaran Singh reported in AIR 1957 SC 637. The relevant passage is also quoted. The passage indicates that even where the confessional statement has been taken under the provisions of Section 164 of the Code of Criminal Procedure it must should be considered to be a matter of the utmost importance to see that the mind of the accused person was completely freed from any possible influence of the police. It was also pointed out there that the person making the confession should not be under any pressure of time. 12. Also the Tribunal while dealing with the above case Ibrahim noted that the statement by way of confession should not be given under fear or threat or coercion by use of status of officers as persons in authority. 13. Now in considering the confessional statement in the instant matter the question as to what was the state of mind of the writ petitioner at the time of making of the confessional sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the voluntary nature of the confessional statement, it was the duty of the Tribunal to enquire into the state of the mind of the writ petitioner, as to whether he was labouring under the impression of being under arrest, i.e., of being not free to move out from the Customs House, even if he wanted to. That state of the mind of the writ petitioner was not enquired into at all. On the other hand, the Tribunal came to the conclusion (see page 112 of the petition) that there is nothing sufficient to conclude that the appellant was under arrest, when he made the statement. The Tribunal did not consider the relevant question as to whether the writ petitioner was labouring under the impression of being under arrest at the material time. Even when the Tribunal came to the conclusion that the appellant could not be said to be under arrest, the Tribunal did not take into account the relevant material which it had quoted in the very same sentence. It has been recorded in the Tribunal's decision that the Officers of the Customs took the appellant to the Customs Office. Now, the fact of taking somebody with the Officers is a fact which, without anything more, shows a deprivation of liberty. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a further summons to give evidence, or produce evidence, in case he is already willing to give a voluntary confessional statement. Be that as it may I find from the records that the Tribunal has not held that the writ petitioner was not under arrest on the ground of the confessional statement being taken under the summons procedure of Section 108. As such this matter was not in the consideration by the Collector or the Tribunal, and accordingly it was not treated as a relevant material for supporting the conclusion of the Tribunal, that the writ petitioner, at the time of his signing the confessional statement, was not under arrest. If anything, this adds to the list of non-consideration of relevant matters, and thus rather helps the writ petitioner than the respondents. 17. In considering the voluntary nature of the statement the Tribunal laid weight upon the fact that there was no evidence of physical torture upon the writ petitioner. It was nobody's case ever that there was direct physical torture upon the writ petitioner in the sense that he was manhandled or beaten up. In view of this, considering the confessional statement to be voluntary because of the absence of physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision against Manindra Chandra Dey and while that was being used, the Tribunal treated the confessional statement of Manindra Chandra Dey as a corroborative statement. If the confessional statement is to be admitted with reluctance and if it is to be treated with strong warnings as to its weight, then it was in law the duty of the Tribunal to look for corroborative evidence with regard to Prakash Yadav's statement elsewhere than in the confessional statement of Manindra Chandra Dey himself. 20. The above point assumes greater importance because the Tribunal itself has quoted a decision to the legal effect that an approver's statement is not to be relied upon without sufficient corroboration; (Swaran Singh's case mentioned above). 21. While I am on this point of the statement of Prakash Yadav it may also be pointed out, as will appear from page 120 of the petition that the Tribunal committed the logical and, therefore, legal error of pre-judging the issue. The question was whether the contraband gold items were found on the person of Manindra Chandra Dey or whether they were otherwise lying in the shoproom of Prakash Yadav. The Tribunal observed as follows: "But here in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authoritative influence of the Customs Officers was completely removed from the mind of Manindra Chandra Dey and also whether Manindra Chandra Dey had sufficient time to relieve himself of the impact of the events before he made the confessional statement. On a wrong appreciation of law apparent on the face of the record the Tribunal failed to embark upon such enquiry. 25. No doubt, if the Tribunal's order is to be quashed, the decision of the Collector shall perish with it because it has merged into that order. But if I find from the Collector's order that all the above points of law were correctly dealt with by the Collector, the above relevant matters were treated as relevant by the Collector and the above irrelevant matter was kept out of consideration by the Collector, then I would not hesitate to uphold the appellate order, in the exercise of my discretionary jurisdiction. In this case no such question arises. The order of the Collector is far less satisfactory than the order of the Tribunal and I say this with all respect due to both the Authorities. The order of the Collector commences at page 81 of the writ petition. Though it is stated at page 84 that the findings are t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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