TMI Blog1997 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings that the prosecution has proved the case based upon the confession of the appellant given in Ex. P-4 under Section 108 of the Evidence Act and the evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt and the High Court has committed no error of law. .Having reached the finding that the appellant has committed the offences under Section 135 (1)(i) of the Act and Sections 85(1)(a) and 86 of the Gold (Control) Act, 1968 we think that instead of being committed to jail, the appellant should be sentenced to pay fine of ₹ 10,000/- and ₹ 5,000/- respectively for the two aforementioned offences, within 4 months from today. In default, he shall undergo imprisonment for a period of 2 months and 1 month respectively which are directed to run consecutively. Appeal is accordingly allowed to the above extent of modification. - 543 of 1988 - - - Dated:- 3-2-1997 - K. Ramaswamy, S. Saghir Ahmad and G.B. Patta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and 6 months respectively and both the sentences were directed to run concurrently. 3.Shri Thakur, learned Senior Counsel for the appellant, has contended that the confessional statement, Ex. P-4 was obtained by coercion and threat of implicating his wife in the offences and, therefore, the appellant had not made voluntary statement. The recovery of the gold biscuits from his compound was shrouded with several suspicious features. He further argued that the panch witness, PW-3 was involved in smuggling activities and initially a warrant to search his house was obtained but when the same proved unsuccessful, recovery came to be made from the house of the appellant. They went to the compound and straightaway got the spot located and dugged up the place from which the gold biscuits were recovered. That would go to show that PW-3 had implanted them in the compound of the appellant for safe custody thereof. Unless the appellant had conscious possession of the contraband, he could not be convicted of the offence. The Magistrate has given valid and cogent reasons in support of his conclusion that the prosecution failed to prove the case beyond reasonable doubt. The High Court, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t independently be proved beyond reasonable doubt. When the Magistrate considered all the evidence and gave him the benefit of doubt, the High Court did not test the correctness of all the reasons of the Magistrate, reversal of the acquittal by the High Court is bad in law. In support thereof, he relied upon Satbir Singh Anr. etc. etc. v. State of Punjab - (1977) 3 SCR 195. 4.When we asked the learned Counsel appearing for the Union of India whether Customs Officer is a person in authority, the learned Counsel started arguing that under Section 108 of the Act the officers are empowered to record the statement of the accused and then he pointed out that under the Act, though they were authorised to have the statement of the accused recorded under Section 108, in view of the ratio of Vallabhdas Liladhar case they are persons in authority. He started conceding to the question whether confession is inadmissible in evidence and prosecution could rely thereon, he started conceding to the question. We are constrained to observe at this stage that though the two-Judge Bench referred the question of law to a three-Judge Bench, the learned Counsel did not make any attempt to investigate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe for its consideration? Since we did not receive any assistance on the question of law, we have independently investigated the case law ourselves and to the extent we could lay our hands, we are dealing with the relevant case law in that behalf. Section 24 of the Evidence Act deals with admissibility of the confession. It reads as under : "24.Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 6.A bare reading of the above provision would indicate that for application of Section 24 of the Evidence Act, the following ingredients are required to be established : (a) the statement in question is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of customs duties and prevention of smuggling and for that purpose they are invested with the power to search any person on reasonable suspicion, to summon, X-ray the body of the person for detecting secreted goods, to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act, to obtain a search warrant from a Magistrate, to search any place within the local limits of the jurisdiction of such Magistrate, to collect information by summoning persons to give evidence and produce documents and to adjudge confiscation. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve summons to produce a document or other thing or to give evidence and the person so summoned is bound to attend either in person or by an authorised agent, as such officer may direct, is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things as may be required. The power to arrest, the power to detain, the power to search or obtain a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Magistrate was accused of an offence and that, therefore, gave the Magistrate the power to proceed further under the Code to remand the person to the judicial custody. As regards the person arrested for committing an offence under the Act, in Romesh Chandra Mehta's case (supra), at page 740, Constitution Bench held that Customs Officer does not at the stage of enquiry accused the person suspected of infringing the provisions of the Sea Customs Act, with the Commission of any offence. His primary duty is to prevent smuggling and to recover duties of Customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act. In Illias v. Collector of Customs, Madras - 1983 (13) E.L.T. 1487 (S.C.) = 1969 (2) SCR 613 another Constitution Bench had held that Customs authorities have been invested under the Act with many powers of a police officer in matters relating to arrest, investigation and search, which the Customs Officers did not have under the Sea Customs Act. Even though the Customs Officers have been invested with many of the powers which an officer in charge of a police station exercises while investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulsion prohibited under Article 20(3) of the Constitution. This Court held that he was not an accused person of an offence at that time and confession was not inadmissible. But on facts it was held in that case that the confession was not inculpatory but one exculpating him from the offence. It was, therefore, held that the statement could not be pressed into service by the State. However, on other evidence, the conviction under Section 135 was upheld. Ratio of Romesh Chandra Mehta's case was applied. 11.In Maqbool Hussain v. The State of Bombay - 1983 (13) E.L.T. 1284 (S.C.) = 1953 SCR 730 another Constitution Bench held that hierarchy of officers under the Sea Customs Act is not the same as of police officers. That Act was enacted to prevent smuggling. The Customs Officers are empowered to arrest persons reasonably suspected of having committed an offence under the Sea Customs Act but the person arrested has to be taken forthwith before the nearest Magistrate or Customs Collector. The Magistrate is empowered to commit such persons to jail or order him to be kept in custody of the police for such time as may be necessary to enable the Magistrate to communicate with the proper o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Constitution were rejected. 13.In Thomas Dana v. The State of Punjab - 1983 (13) E.L.T. 1302 (S.C.) = (1959) Supp. 1 SCR 274, another Constitution Bench was concerned with the question whether the conviction under the Sea Customs Act, after the confiscation proceedings became final, was violative of Article 20(2) of the Constitution (double jeopardy). The Constitution Bench held that it was not violative of Article 20(2) since the two proceedings were independent and distinct of each other. One is for confiscation for infringement of the provisions of the Act and the second is in respect of charge of criminal offence. Accordingly, we have no hesitation to hold that the appellant was not accused of an offence when he gave in his own hand-writing his confessional statement, Ex. P-4. 14.The question then is : whether the confession under Section 24 of the Evidence Act was obtained by threat, force or inducement etc. and thereby is inadmissible in evidence? In Vallabhdas Liladhar case (supra) the Constitution Bench had held that the statements made before the Customs authorities were used in support of the prosecution case. The admission thereunder constituted the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193, I.P.C. applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence." It was further held that "it is not every threat, inducement or promise even emanating from the person in authority that is hit by Section 24 of the Evidence Act." In order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that "by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him". In the case before us, what is it that the appellant has been told? He has been told that the law requires him to tell the truth and if does not tell the truth, he may be prosecuted under Section 193, I.P.C. for giving false evidence". The plea of the appellant therein was that he was compelled to make the statement under the threat that otherwise his mother and another brother would be prosecuted. He had further stated that he was induced to make statement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that such statements given by the accused should be strictly, meticulously and minutely scrutinised as they emanate at the threat of persons in authority and are inadmissible in evidence under Section 24, does not merit acceptance for the reason that the primary object of enquiry under the Act is to initiate proceedings for confiscation of the contraband and collection of excise duty and the persons acquainted with the facts are duty bound to speak truth or to give statement truthfully upon the subject respecting which the person is examined or made statement at the pain of prosecution for perjury or produce such document or other things. In the light of the legislative policy the question of unfairness or untrustworthy of process does not arise and such a plea cannot be given countenance or acceptance. 16.Ramanlal Bhogilal Shah Anr. v. D.K. Guha Ors. - (1973) 1 SCC 696 was cited in support of the contention that when the person summoned under Section 108 of the Act was in the company of the Customs Officer he was an accused and that, therefore, the appellant therein was entitled to the protection. That case is distinguishable from the present case. Therein, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ender, such statement cannot be characterised to have been obtained by threat, inducement or promise. (5) The collection of evidence under Section 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. (6) The self-same evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes. 18.It is true, as pointed out by Shri Thakur, that PW-2 admitted in cross-examination that they treated the appellant as an accused and decided to prosecute the appellant. But the above evidence requires to be tested in the light of the above legal position. The assumption of PW-2 that the appellant was an accused as on December 6, 1980, is erroneous, since as on that date no formal complaint had been laid against the appellant. Therefore, it cannot be considered that on December 6, 1980, the appellant was an accused of the offence under Section 24 of the Evidence Act. 19.Next question for consideration is : whether such statement can form the sole basis for conviction? It is seen that, admittedly, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously, therefore, it would be the appellant who had concealed 200 gold biscuits of foreign marking in his compound at a place always visible from his bed-room window. Therefore, the High Court was right in its conclusion, though for different reasons, that Ex. P-4 is a voluntary statement and was not influenced by threat, duress or inducement etc. Therefore, it is a voluntary statement given by the appellant and is a true one. 20The question then is : whether the retracted. confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for Bench of three-Judges laid down the law that the Court requires to marshall the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant Kashmira Singh of the charge of murder. The appellant was acquitted of an offence under Section 302 IPC but was convicted for the offence under Section 201 IPC for destroying the evidence of murder and sentenced him to seven years rigorous imprisonment. This decision was considered by a four-Judge Bench in Balbir Singh v. State of Punjab - AIR 1957 SC 216 wherein it was held that if there is independent evidence, besides the confession, the rule that the confession could be used only to corroborate the other evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an accused and uses of a confession of the co-accused at the trial. As regards the confession of the accused and corroboration to the retracted confession, in Girdhari Lal Gupta Another v. D.N. Mehta, Assistant Collector of Customs Another - 1970 2 SCC 530 a Bench of two-Judges considered and held that if the evidence of an investigating officer is found to be reliable, whether it can be used to corroborate the evidence depends on the facts of each case. In that case, relating to the offence under Foreign Exchange Regulation Act, it was held that the evidence of the investigating officer and other evidence could be used to corroborate the recoveries made of the Indian currency being exported. This Court upheld the conviction of the accused. 24.In Nishi Kant Jha v. The State of Bihar - 1969 (1) SCC 347, another Constitution Bench was to consider whether, when a part of the confessional statement is inculpatory and the other part exculpatory, the former point was admissible in evidence. It was held that the exculpatory part was inherently improbable and was contradicted by other evidence and was, therefore, unacceptable. The incriminating circumstances contained in the incul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements which agree in so many details". On consideration of the evidence it was held that "although Noor Mohammad's statement was not used by the High Court and we have reluctantly left it out of consideration also, "nothing was shown to us to "destroy the conclusion about the truth of accomplice evidence. If it was, we would have considered seriously whether we should not take it into consideration. Further Haroon himself was also served with a notice like others. He was unwilling to make a statement till he had seen what the others had said. This may well be regarded as peculiar conduct in a man who now claims that he was not concerned with the smuggling". The normal rule that accomplice's evidence requires corroboration on material particulars from independent evidence was not applied. Thus this Court had accepted the accomplice evidence and the statements of others were used to confirm the conviction. Normally mens rea is an essential ingredient of the crime but this Court in the case of offences punishable under Section 14 of the Food Adulteration Act or Section 7 of the Essential Commodities Act, had held that mens rea is not an essential ingredient in proof of statutory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant was found to have sustained grievous injuries while he was in custody of the police. Moreover, the house from which the contraband was recovered was in joint possession of others along with the appellant. This Court, therefore, drew the inference that the statement was not voluntary. This case also has no application to the facts in the present case. Satbir Singh's case also is not of any help to the appellant. Therein, the confession was recorded by a superior police officer questioning the accused separately on several dates and ultimately it was recovered at the end. Under those circumstances, it was held that the confession was not voluntary. That case relates to the prosecution for offences under Section 364 and 302 read with Section 120B, IPC. The ratio therein is equally inapplicable to the facts in the present case. 31.It is seen that the contraband of 200 gold biscuits of foreign marking concealed in a wooden box and kept in the pit in the compound of the appellant was recovered at 9.00 a.m. on December 6, 1980 in the presence of Panch (mediator) Witnesses including PW-3. This is proved from the evidence of PWs 2, 3 and 5. There was nothing for PW-3 to speak false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality in the approach adopted by the learned J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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