TMI Blog2009 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 135(1)(a) and 135(1)(b) read with Section 135(3)(i) of the Customs Act, 1962. The 1st respondent was also acquitted of the offence punishable under Section 5 of the Imports and Exports Control Act, 1947. He has been also acquitted of the offence punishable under Section 120-B of the Indian Penal Code. 2. Originally the complaint was filed by the applicant against three accused. After the 1st and 2nd accused absconded, their case was separated and was kept on dormant file and the learned trial Judge proceeded against the 1st respondent. 3. The case against the 1st respondent is based on a statement of the said respondent recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as the said Act of 1962) which was retracted later on.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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Quantas flight No. QF-010 for Bombay with the said jacket containing foreign marked gold. He had further admitted that although he allotted seat No. 15J in the said aircraft, he was in fact, occupying seat No. 14A. He also admitted before the panch witnesses that he was to deliver in the said aircraft itself the said jacket containing the gold biscuits to a crew member Mr. Michael Kypriadis, the Quantas Flight Service Director (accused no. 2) who was on board of the said Quantas flight. Accused no. 1 also stated to the DRI officers in the presence of panch witnesses, that since the accused no. 2 did not turn up, he left the said jacket containing gold biscuits in the rack on the left hand side of the aircraft, 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 packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the DRI office at Hotel Waldorf, Colaba, Bombay, for interrogation, disclosed that he was to deliver the said gold biscuits to Ahmed Abdul Karim of Bombay V.T. In the light of this, searches of the residential and business premises of Ahmed Abdul Karim (Accused no. 3) as identified by accused no. 2 were carried out in the presence of accused no. 3 and in the presence of panchas and some documents were seized under a panchnama as being relevant to the case proceedings under the provisions of the Customs Act, 1962." 5. The confessional statement of the 1st accused under Section 108 of the said Act of 1962 was recorded on 8th January 1987. In the said confessional statement the 1st accused admitted that he was working 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jacket containing gold. Thereafter, he put the said jacket containing gold in the locker near seat no. 14/15A. 7. On the same day statement of the 1st respondent was recorded under Section 108 of the said Act of 1962. In the said statement he gave all particulars such as his date of birth, place of birth, particulars of his family and the manner in which he went to London and started business. He also disclosed as to how he came in contact with crew members of the airlines including the accused no. 2. He also disclosed as to how he used to visit gold shop of Heerji Lakha situated at Wembley, London to buy gold coins and ornaments. The material portion of his statement reads thus : "As regards the arrangements for the acquisition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he flight from London to Bombay. Ken in turn cleared the biscuits through Bombay Customs and thereafter handed them over to me near Excelsior Cinema in Bombay as pre-arranged between us in terms of the arrangements made earlier between Shah and me I handed over the gold to Shah's representative. I do not know the identify of this man as this was never conveyed to me. Shah had only told me that whenever a consignment of gold was received by me in this manner his man would contact me on the telephone in Bombay and that I should hand over the gold to him. I am unable to give the details of Shah's representative in Bombay. After this about 5 to 6 similar jobs were done by us using different Quantas crew. …… I have to state that 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 Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the 1st respondent has disclosed all material particulars right from his date of birth and place of birth. He pointed out that he has given all the particulars of the members of his family and as to what transpired in the family. He has stated the manner in which he reached London in the year 1975 and the manner in which he developed business at London. He submitted that there are certain corrections made in the typewritten statement of the 1st respondent and all corrections have been initiated by the 1st respondent. He submitted that this shows that the confessional statement was voluntary. He submitted that if it was not voluntary, all personal details could not have been incorporated in the statement right from the date of 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Ramchandra Bapuji Shinde was examined as he had recorded statement of the 1st respondent under Section 108 of the said Act of 1962. He produced retraction letter dated 13th January 1987 of the 1st respondent. He was cross-examined at length by the advocate for the accused. 12. Thus, it appears from the evidence that nothing incriminating was found in the custody of the 1st respondent when his house and business premises were searched. None of the witnesses have stated anything which will connect the 1st respondent with the seizure of the gold on the board of the plane. Thus, the only material brought on record by the prosecution against the 1st respondent is his statement, under Section 108 of the said Act of 1962 which has 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to corroborate the retracted confession; (iii) The Court is required to examine whether the confessional statement Ls voluntary in the sense whether it was obtained by threat, duress or promise; (iv) If the Court is satisfied from the evidence that it was voluntary, then it is required to be examined whether the statement is true; (v) If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction; (vi) However, the practice and prudence requires that the Court should seek assurance getting corroboration from other evidence adduced by the prosecution. 16. Considering the law laid down by the Apex Court, even assuming 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." (Emphasis added) 18. The Apex Court made a distinction between confession of co-accused 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against his co-accused. The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused. Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co-accused. An examination of the reported decisions of the various High Courts in India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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