2010 (2) TMI 618 - HC - Customs

Gold smuggling - accused were apprehended when they were coming from the side of Pakistan under the Indian territory - accused had fired upon them, however, they were nabbed and 225 gold biscuits were recovered - testimony of these two witnesses being without any bias, malice or enmity against the accused could not be discarded merely for the fact that the same are not corroborated by any independent source - in view the heavy recovery, no leniency on the quantum of sentence could be extended Petition is dismissed

Summary

Issues:
- Conviction under Section 135 of the Customs Act for possession of smuggled gold biscuits
- Reliability of prosecution witnesses and evidence
- Admissibility of confessional statements under Section 108 of the Customs Act
- Applicability of Section 24 of the Evidence Act to the statements made by the accused

Conviction under Section 135 of the Customs Act for possession of smuggled gold biscuits:
The judgment pertains to two connected petitions challenging the conviction of the accused for possessing 225 smuggled gold biscuits under Section 135 of the Customs Act. The accused were apprehended by B.S.F. officials while entering India from Pakistan, and the gold biscuits were recovered from them. The accused failed to produce valid documents for the gold. The gold biscuits were tested and found to be genuine, weighing 26.325 kgs and valued at Rs. 93,13,425/-. The accused admitted to bringing the gold from across the border for delivery to specific individuals. The trial court convicted the accused, and their appeal was dismissed.

Reliability of prosecution witnesses and evidence:
The defense raised multiple contentions challenging the reliability of the prosecution's case. They argued that the witnesses were interested, confessional statements were inadmissible, and the test report by the goldsmith was not proven according to law. In contrast, the prosecution contended that the witnesses were reliable, the recovery of a significant amount of gold could not be fabricated, and the statements made by the accused under Section 108 of the Customs Act were voluntary and admissible. The court found the testimonies of the B.S.F. officials consistent and reliable, despite minor discrepancies, and held that the prosecution had established the case beyond doubt.

Admissibility of confessional statements under Section 108 of the Customs Act:
The defense challenged the admissibility of the statements made by the accused under Section 108 of the Customs Act. They argued that the statements were obtained under pressure and should not be considered as evidence. However, the court held that the statements were recorded voluntarily under the signatures/thumb impressions of the accused. Referring to a previous case, the court clarified that Section 24 of the Evidence Act, which deals with inducement or threats affecting the admissibility of statements, did not apply in this scenario. Therefore, the statements made under Section 108 of the Customs Act were deemed admissible as evidence against the accused.

Applicability of Section 24 of the Evidence Act to the statements made by the accused:
The court analyzed the applicability of Section 24 of the Evidence Act to the statements made by the accused under Section 108 of the Customs Act. Citing a previous judgment, the court explained that for Section 24 to apply, the inducement or threat should lead the accused to believe they would gain an advantage or avoid harm in the proceedings against them. In this case, the court found that Section 24 did not apply to the statements made by the accused under Section 108 of the Customs Act. Therefore, the statements were considered as valid evidence against the accused.

In conclusion, the court dismissed both petitions, upholding the conviction of the accused under Section 135 of the Customs Act for possessing smuggled gold biscuits. The judgment emphasized the reliability of prosecution witnesses, the admissibility of confessional statements, and clarified the inapplicability of Section 24 of the Evidence Act to the statements made by the accused. The court highlighted the substantial recovery of gold and maintained that no leniency in sentencing could be granted due to the gravity of the offense.