2014 (9) TMI 191 - HC - Customs

Acquittal of accused - Recovery of foreign and Indian currency - attempted to be exported in contravention of the provisions of the Customs Act and the Foreign Exchange Regulation Act, 1973 ( FERA ) - whether the bag recovery was belong to accused - retracted statement - Held that - Once the confessional statement had been retracted it was necessary to seek corroboration of the facts adverted to therein. - The mystery of Mr. Grover carrying only one hand bag for visiting Hongkong without a change of clothes has not really been satisfactorily explained by the prosecution. One shaving kit was recovered from the cardboard carton and the other from the sea green suitcase. Why would the Respondent be carrying two shaving kits has also not been explained. The mere fact that one shaving kit was recovered from Mr. Grover and another from the Respondent does not lead to the conclusion that the Respondent was carrying Mr. Grover s carrying shaving kit. Surprisingly the baggage tags were not consecutive which was even more surprising, if indeed both the bags had been checked in at the same time. There are too many unexplained facts and unanswered questions in the prosecution case which persuade the Court to agree with the reasoning and conclusion arrived at by the trial Court. The prosecution has been unable to prove the case against the Respondent beyond reasonable doubt. - Decided against the revenue.

Summary

Issues Involved:
1. Legality of the acquittal of the Respondent under Sections 132 and 135(1)(a) of the Customs Act, 1962.
2. Admissibility and voluntariness of the Respondent's confessional statement under Section 108 of the Customs Act.
3. Impact of the non-production of key witnesses and the Respondent's right to cross-examination.
4. Reliability of the defense evidence and the prosecution's burden of proof.
5. Procedural fairness and the implications of the Commissioner of Customs (Appeals) order dated 15th December 2008.

Detailed Analysis:

1. Legality of the Acquittal:
The Department of Customs challenged the acquittal of the Respondent by the Additional Chief Metropolitan Magistrate (ACMM) in Case No. 444/2004. The trial Court found substantial elements of doubt in the prosecution's case, particularly questioning the ownership of the sea green suitcase and the lack of a satisfactory explanation for the Respondent's confession. The trial Court concluded that the prosecution failed to prove its case beyond reasonable doubt, thus granting the Respondent the benefit of doubt.

2. Admissibility and Voluntariness of the Confessional Statement:
The Respondent's confessional statement under Section 108 of the Customs Act was a key piece of evidence. The Respondent retracted this statement, claiming it was made under threats and coercion. The trial Court noted the lack of corroboration for the confessional statement and found it inconsistent and involuntary. The High Court upheld this view, emphasizing the necessity of corroboration for retracted confessions, especially when the statement was alleged to have been obtained under duress.

3. Non-Production of Key Witnesses and Right to Cross-Examination:
The prosecution failed to produce Mr. Grover and the panch witnesses for cross-examination, which significantly impacted the Respondent's defense. The trial Court and the High Court noted that the absence of these witnesses deprived the Respondent of an effective defense. The High Court referenced the legal principle that the right to cross-examine is crucial when the credibility of a witness is in question.

4. Reliability of Defense Evidence and Prosecution's Burden of Proof:
The defense presented witnesses who testified about the Respondent's and Mr. Grover's travel plans and interactions. Despite the trial Court finding the defense witnesses unreliable, it emphasized that the prosecution bore the burden of proof. The prosecution's failure to provide consistent and corroborative evidence led to the acquittal of the Respondent.

5. Procedural Fairness and Commissioner of Customs (Appeals) Order:
During the appeal's pendency, the Commissioner of Customs (Appeals) allowed the Respondent's appeal against a penalty order, noting procedural lapses and the improper handling of evidence. The High Court considered this development, which highlighted the prosecution's failure to follow due process, further weakening its case.

Conclusion:
The High Court dismissed the appeal, agreeing with the trial Court's reasoning that the prosecution failed to prove the Respondent's guilt beyond reasonable doubt. The Court emphasized the importance of procedural fairness, the right to cross-examination, and the necessity of corroborative evidence for retracted confessions. The judgment underscored the principle that in an appeal against acquittal, interference is warranted only if the trial Court's conclusion is perverse or against the weight of evidence, which was not the case here.