2010 (9) TMI 882 - HC - Customs

Whether on the basis of the retracted confessional statements made by the accused under Section 108 of the Act before the Customs Superintendent confessing his guilt could be made the basis of conviction or not Held that - recovery of only six gold biscuits weighing about 700 gms was effected from the petitioner; the occurrence took place about 15 years back and since then the petitioner has been facing the agony of protracted proceedings; at the time of recovery he was a young boy and he has already undergone about one year of sentence therefore these could be treated as mitigating circumstances for reduction of the sentence petition is dismissed with the modification in the sentence which is reduced to two years

Summary

Issues Involved:
1. Admissibility of confessional statements under Section 108 of the Customs Act.
2. Voluntariness of the confessional statements.
3. Basis for conviction on retracted confessional statements.
4. Evaluation of defense evidence.
5. Quantum of sentence.

Detailed Analysis:

1. Admissibility of Confessional Statements:
The primary issue was whether the confessional statements made by the accused under Section 108 of the Customs Act were admissible as evidence. The court examined precedents, including *State of Punjab v. Barkat Ram* and *Romesh Chandra Mehta v. State of West Bengal*, which established that Customs Officers are not considered police officers under Section 25 of the Indian Evidence Act, 1872. Consequently, confessional statements made to them are admissible. The court noted that despite the powers conferred on Customs Officers, their primary function is the detection and prevention of smuggling, not the prevention and detection of crime, distinguishing them from police officers.

2. Voluntariness of the Confessional Statements:
The court considered whether the confessional statements made on 23-3-1995 and 25-3-1995 were voluntary. It was argued that the delay in recording the statements indicated they were not voluntary. However, the court found no evidence of torture, coercion, or duress. The statements were read to the accused, who admitted their correctness and thumb-marked them, indicating they were made voluntarily. The court emphasized that the statements themselves noted they were made without fear, pressure, or allurement.

3. Basis for Conviction on Retracted Confessional Statements:
The court addressed whether retracted confessional statements could form the basis for conviction. The accused retracted his statements only during the trial under Section 313 of the Code of Criminal Procedure. The court held that such late retraction allowed for adverse inferences against the accused. The voluntary confessional statements, combined with the recovery of gold biscuits, were deemed sufficient for conviction. The court referenced *Union of India v. Satrohan*, where a similar retraction was considered an afterthought, supporting the use of voluntary confessional statements for conviction.

4. Evaluation of Defense Evidence:
The court reviewed the defense evidence, including testimonies from Lala Ram (DW1), Parkash Chand (DW2), Prem Kumar Bansal (DW3), and Parshotam Lal (DW4). The defense witnesses claimed the accused was taken from his home and falsely implicated. However, the court found this evidence insufficient to counter the prosecution's case. The testimonies were deemed inadequate to undermine the findings of guilt based on the prosecution's reliable and trustworthy evidence.

5. Quantum of Sentence:
The court considered the longevity of the proceedings and the relatively minor recovery of gold as mitigating factors. The accused had already undergone about one year of the sentence, and the incident occurred 15 years prior. Given these circumstances, the court reduced the sentence from three years to two years, while maintaining the fine.

Conclusion:
The petition was dismissed, but the sentence was modified to two years of rigorous imprisonment, with no change to the fine. The court upheld the admissibility and voluntariness of the confessional statements and found the defense evidence insufficient to overturn the conviction.