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TMI Blog2009 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... as the said Act of 1962) which was retracted later on. The question is whether a conviction can be based only on a retracted statement of the 1st respondent under Section 108 of the said Act of 1962. The other question is if the requirement of law is that the 1st respondent cannot be convicted only on the basis of a retracted statement under Section 108, whether there is any evidence to corroborate and draw assurance to the contents of the statement. The last question involved is whether retracted statements under Section 108 of the said Act of 1962 of the co-accused (accused nos. 1 and 2) can be used as corroboration against the 1st respondent. 4. The complaint was filed by the applicant against the 1st respondent and two others (accused nos. 1 and 2). The process was issued on 5th February 1987. Bail was granted to the 1st and 2nd accused on the very day. They were released on bail. Thereafter they jumped the bail and never appeared before the trial Court. With a view to appreciate the submissions, it will be necessary to refer to the material averments in the complaint. Paragraph nos. 3 to 5 of the complaint read thus : "3. Acting on a specific information that a passenger by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... near seat no. 14A on the upper deck of the said aircraft and walked away. 4. Thereafter, the accused no. 1 alongwith the said cloth jacket was brought to a customs room in the arrival hall of Module II of the said airport. The officers, thereafter, examined the said jacket in the presence of panchas and in the presence of accused no. 1 which revealed that it contained 15 rows of pouches, each pouch containing a packet wrapped with adhesive paper. Thus, in all 15 packets wrapped in adhesive paper were so found in the said packet. All the 15 packets were opened by the DRI officers and each such packet was found to contain 10 gold biscuits of 10 tolas each with foreign markings. In all 150 (one hundred and fifty) gold biscuits with foreign markings were recovered from the said cloth jacket. All these gold biscuits were found to have on the obverse side the marking from the top to bottom thereof as "CREDIT-999.10-SUISSE-10 TOLAS-ESSAYEUR-FONDEUR". The accused no. 1 had no permission to import the gold. The DRI officers therefore seized the said 150 gold biscuits with foreign markings totally weighing 1500 tolas/17490 gms and valued at Rs. 41,97,600/- (Rupees Forty One Lakhs Ninety Sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the 1st respondent-accused no. 3 for monetary consideration of 10 pounds per gold biscuit. He stated that he had brought the said 150 gold biscuits on 7th January 1987 from the Swiss bank at Zurich. He boarded the Swiss air flight and alighted at London and declared the said gold to British Customs Authority. Thereafter, he boarded a flight on 7th January 1987 at London of Quantas airways to Bombay. According to the 1st accused he was to give the said gold in a rexin bag as per the previous arrangement to the 2nd accused who was on the board of the same flight. He stated that the modus operandi adopted for smuggling activities was that the 1st respondent was financing the entire operation by sending money from London to Zurich where the 1st respondent was having a bank account. The 3rd respondent had given standing instructions to the bank to deliver a pre-arranged quantity of gold to accused no. 1 on presentation of his passport. The 1st accused used to fly to Zurich from London on ticket supplied by the 1st respondent. The 1st accused used to pick up the gold from Swiss bank at Zurich and used to fly down to London by Swiss air flight. From London he used to board Quantas ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition of the gold which was ultimately smuggled into India, I have to state that in order avoid the payment, of VAT in England on the gold Shah and I decided that I should open a bank account in my name in Switzerland which would be used for the procurement of the gold. Accordingly, I opened a bank account in the Zurich airport branch of the CREDIT SUISSE BANK towards the end of 1983 or early 1984 as far as I recall. However, as during the period between late 1983 to early 1986 we did only two or three jobs, we have no occasion to utilise this account for this purpose. ……… Around early 1986 in view of the increased profit margins in gold smuggling Shah and I decided that we should re-activate our business. The: modus operandi agreed upon between us was that Shah would have sums money deposited in my account in Zurich and that these sums would be utilised for the acquisition of gold from the bank in Zurich by my nominee who would then bring the gold to London airport and board a connecting Qantas flight from London to Bombay and hand over the gold to one of the flight crew on board. As I mentioned earlier, Abdul Rehman Mayet had already agreed with me that he would be willing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the 2nd January 1987 Mike telephone me from Bombay and told me that he would be leaving for London on the 4th and would be back in Bombay on the 8th asked me whether there was any job for him. I told Mike that he would be required to bring 150 biscuits of gold from London to Bombay on his return journey. I then rang up Mayet and told him to contact Mike at his hotel and confirm with him that he would be on board the flight and would hand over the gold to Mike for clearance through Customs. I also rang up Shah and informed him of the arrangements made and Shah told me that he would arrange for the money to be deposited into my account in Zurich and that Mayet could take the delivery of the gold and that Shah's man would contact me as usual in Bombay and I should hand over the gold to him. After these conversations I had no further discussions with Mayet, Mike or Shah and I was expecting the gold to be delivered to me by Mike sometime this morning. The arrangement was that Mayet would have picked up the gold in Zurich, taken a flight to London and thereafter boarded a Quantas flight from London to Bombay and handed over the gold to Mike on board who would then clear it through B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f birth and other particulars as pointed out earlier. He submitted that there was no material on record to show that the said statement was obtained by threat, duress or promise. He submitted that there is evidence of the seizure of the gold and evidence of the responsible officers of the Customs Department which shows that the statement is true. He submitted that by stereotype letters all the accused have retracted their statements under Section 108 of the said Act and the said letters appears to have been drafted by the same advocate. He submitted that though the 1st respondent may not have played actual part in bringing smuggled gold to India, the 1st and 2nd accused were acting at his instance and therefore the confessional statements of the 1st and 2nd accused are sufficient to corroborate the confessional statement of the 1st respondent. He placed reliance on decision of the Apex Court in the case of Surjeet Singh Chhabra v. Union of India & Ors., 1997 (89) E.L.T. 646 (S.C.) = [(1997) 1 Supreme Court Cases 508] as well as another decision of the Apex Court in the case of Naresh J. Sukhawani v. Union of India, 1996 (83) E.L.T. 258 (S.C.) = [1995 Supp. (4) Supreme Court Cases 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been admittedly retracted. The statements of the 1st and 2nd accused under Section 108 of the said Act of 1962 have been produced and proved which have been also admittedly retracted. 13. Thus, the first question which arises is whether conviction of the 1st respondent could be based on the retracted statement under Section 108 of the said Act of 1962. The learned counsel appearing for the applicant has taken me through the decision of the Apex Court in the case of K.I. Pavunny (supra). The question which arose for consideration of the Apex Court is summarized in the first paragraph of the judgment which reads thus : "This appeal by special leave has come up before this Bench, pursuant to a reference order dated 9-11-1994 passed by a two-Judge Bench, to consider whether the confessional statement of the appellant made to the Customs Officers under Section 108 of the Customs Act, 1962 (for short "the Act"), though retracted at a later stage, is admissible in evidence and could form the basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence?...." 14. After considering the law on the point, the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the confessional statement of the 1st respondent was voluntary and was true, as a rule of prudence, the Court is required to seek assurance getting corroboration from the other evidence adduced by the prosecution. Thus, the Court is required to find out whether there are other facts and circumstances on the record to corroborate what is stated in the retracted confession. As stated earlier, except for the statements of 1st and 2nd accused under Section 108 of the said Act of 1962, there is nothing on record to corroborate what is stated in the confessional statement of the 1st respondent. Thus, if at all any assurance is to be drawn or assurance is to be taken, the same will have to be on the basis of statements of 1st and 2nd accused under Section 108 of the said Act which have been retracted. Thus, in short, now the question which remains to be decided is whether retracted confessional statements of the co-accused who are not being tried with the accused can be used as corroborative evidence for drawing assurance to what is stated in the statement of the accused (1st respondent) under Section 108 of the said Act, of 1962. 17. The learned counsel appearing for the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and evidence of accomplice which is recorded under Section 133 of the Indian Evidence Act, 1872 and held that statements contained in confession of co-accused persons stand on a different footing. In paragraph 14 the Apex Court observed thus : "14. The statements contained in the confessions of the co accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well-understood and well established....." 19. Thus, what has been held by the Apex Court is that though a confession of co-accused may be regarded as evidence in that generic sense, the fact remains that it is not evidence as defined by Section 3 of the said Act of 1872. Therefore, while dealing with a case against an accused person, the Court cannot start with the confession of the co-accused person and it must be begin wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of Section 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co accused by virtue of Section 30 of the Indian Evidence Act, as a matter of prudence and practice a Court would not ordinarily act upon it to convict a co-accused without corroboration......" (Emphasis added) 21. Again the Apex Court was dealing with a case where the co-accused were being jointly tried with the accused. Thus, what has been held by the Apex Court is that through retracted confession is admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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