TMI Blog1985 (7) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... e two letters there is no reference to the appellant and they contained only certain codes which even the departmental officials could not decipher. These letters have lost all significances and have not been relied on by the department or the learned single Judge. 3. Show cause notices were issued to the appellant and six others, namely, Shri M.M. Abdulla Kunhi s/o Mammunhi, Shri Mammad alias Srakutty Mammed s/o Kadavath Anthru, Shri M.M. Thajuddin alias M.M. Thaji s/o M.M. Abdulla Kunhi/ Shri B.M. Abdul Khader s/o Vadakkan Mammunhi, Shri C.M. Abdulla s/o Mammunhi and Shri Theruvath Kasmi s/o Anthunhi. 4. The appellant and others disclaimed any liability. There was a hearing. The appellant had the assistance of an advocate Sri. K. Kunhirama Menon who appeared for him before the authorities and appeared in this Court also. Oral evidence was also taken. Eventually the Additional Collector of Customs, Cochin, by order dated 4th February, 1978 (Ext. P6) imposed the penalty of a lakh of rupees on the appellant. The officer relied on the statements "by the other parties involved in the case" that the goods were smuggled for and on behalf of the appellant, found no reason to "disbeli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating petitioner No. 1. One could say that the testimony of Khader and Tajuddin implicating the petitioner needed some corroboration as they themselves were actively involved in the smuggling of the goods. This however is not true, in respect of the testimony of Khader and C.M. Abdulla who clearly stated that the goods recovered from their premises belonged to the petitioner No. 1 and that these were stored in their premises only temporarily and that these were earlier stored in the compound belonging to petitioner No. 1 only. Government are, therefore, satisfied that the involvement of petitioner No. 1 in respect of the goods in question is established beyond doubt even though it is based only on the testimony of other co-accused persons. Petitioner No. 1 is therefore liable to penalty under Section 112 of the Customs Act, 1962 and the penalty of Rs. 1 lakh imposed on him does not call for any moderation". 8. The writ petition was filed challenging these three orders. The learned Judge rightly found that the department "chose to rely solely on the testimony of the co-accused" and proceeded to confirm the decision of the authorities on the ground that the findings can be justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do with the goods and did not expressly or impliedly implicate himself. With great respect to the learned Judge, we cannot agree that Ext. P1 statement, not relied on by the department, could be pressed into service for supporting the impugned orders in this court. 10. The thrust of the submission therefore rests on the admissibility and acceptability of the statements made by the "co-accused", persons involved in the case (as described in Ext. P6 itself). The counsel contends that a retracted confession of a co-accused is wholly inadmissible and cannot be pressed into service to impose penalty on another accused, the appellant; that the statement when retracted is no substantive evidence and the evidence of the person who gave the statement alone can be evidence. When that evidence also does not support the department, the charges have to fail. The counsel also submits that there has been infraction of the principles of natural justice. 11. The contention therefore lies in a narrow compass and with reference to the admitted facts and those disclosed by the evidence on record, the conclusion also poses no difficulty especially when the Supreme Court has spoken, if we may say so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, should consist of statements made in the presence of the workman charged. An exception was envisaged where the previous statement could be used after giving copies of that statement well in advance to the workman charged, but with the further qualification that that previous statement must be affirmed as truthful in a general way when the witness is actually examined in the presence of the workman. Applying this principle to the present case, it is clear that the previous statement made by Nand Kishore to Vazifdar could not be taken as substantive evidence against the respondent, because Nand Kishore did not affirm the truth of that statement when he appeared as a witness and on the other hand, denied having made that statement altogether. Even though his denial may be false, that fact would not convert his previous statement into substantive evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed by him at the time of his examination by the Enquiry Officer. This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In cirminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt." 20. m Shrishail Nageshi v. State of Maharashtra AIR 1985 SC 866 it was again observed thus :- "We wish to make it clear and this is only to repeat what is so well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources. It cannot however, be the basis for convicting co-accused though it may be taken into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, or (ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act, and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom if purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under Cl. (i) also presume, unless the contrary is proved, the truth of the contents of such document." 25. The learned Judge held thus :- "Section 138B makes it clear that in proceedings before an administrator, as in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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