2011 (1) TMI 1429 - HC - Customs

Smuggling - Gold Bars - the conviction has been based only on the statement of the petitioner recorded under Section 108 - Held that - The possession of gold has been proved and the fact that it is of foreign origin has been proved by the statement of the petitioner recorded under Section 108 of the Customs Act - Under Section 123 of the Customs Act the burden of the prosecution is not to prove beyond reasonable doubt that the goods recovered were smuggled goods. The statement of the petitioner recorded under Section 108 of the Customs Act proves that there is a reasonable belief that the gold found in possession of the petitioner is smuggled. Though this statement is sought to be retracted after two days in the bail application which is not signed by the petitioner but by his counsel wherein it has only been written that the confession was coerced from him and the same stands withdrawn. This is not a proper retraction but a defence sought to be laid. This so called retraction does not cast a doubt on the voluntariness of the confessional statement. It is a settled legal principle that under Section 30 of the Evidence Act confession of co-accused can be used only to lend assurance. Petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to conviction under Section 135(1)(b) of the Customs Act based on possession of gold bars, legality of conviction based on confessional statement under Section 108 of the Customs Act, retraction of statement, burden of proof, sufficiency of evidence, voluntariness of statement, relevance of case laws.

Analysis:
1. Conviction under Section 135(1)(b) of the Customs Act:
The case involved a challenge to the conviction of the petitioner under Section 135(1)(b) of the Customs Act based on the possession of gold bars. The prosecution established that the petitioner was in conscious possession of 2413 gms. of gold of 23 Ct. purity, recovered from his baggage. The petitioner failed to provide legal evidence for lawful possession of the gold bars. The absence of foreign marking on the gold did not negate the offence, as the burden of proof shifted to the accused to prove the gold was not smuggled. The conviction was based on the positive evidence of gold recovery and conscious possession by the petitioner.

2. Legality of Conviction based on Confessional Statement:
The petitioner contested the conviction based on his confessional statement under Section 108 of the Customs Act, arguing that it was coerced and retracted. The court found the statement to be voluntary, written in the petitioner's handwriting, and not obtained under duress. The retraction was deemed a defense strategy rather than a genuine withdrawal of the statement. The court emphasized that the burden of proof shifts to the accused once the prosecution establishes reasonable belief of possession of smuggled goods. The confessional statement was considered valid evidence for conviction.

3. Burden of Proof and Sufficiency of Evidence:
The prosecution successfully proved the recovery of gold from the petitioner, shifting the burden to prove lawful possession. The petitioner's defense of the gold being of Indian origin lacked supporting evidence. The court noted that the prosecution's evidence, including the confessional statement, indicated the gold was of foreign origin. The court highlighted that mere retraction of a statement is insufficient to discredit its voluntariness or evidentiary value.

4. Voluntariness of Statement and Relevant Case Laws:
The court rejected the petitioner's argument that the conviction was solely based on the confessional statement, emphasizing the proof of gold recovery and foreign origin. The court cited legal precedents to support the admissibility of voluntary confessional statements as a basis for conviction. The relevance of case laws such as UOI v. Bal Mukund and others was discussed to differentiate the evidentiary value of confessions by co-accused from that of the accused himself. The court upheld the conviction based on the evidence presented by the prosecution.

In conclusion, the court dismissed the revision petition, affirming the legality of the conviction under Section 135(1)(b) of the Customs Act. The court found no merit in the challenges raised by the petitioner regarding the sufficiency of evidence, voluntariness of the confessional statement, and the burden of proof. The judgment highlighted the importance of valid evidence and the admissibility of voluntary confessions in establishing guilt in cases involving possession of smuggled goods.