2016 (3) TMI 472 - HC - Customs

Revision petition - Setting aside of judgment of conviction and order of sentence - Commission of offences under Section 135(1)(a) of the Customs Act 1962 - import / possession of gold - Held that - there are several lacunae in the prosecution case. The statement of the petitioners recorded under Section 108 of the Customs Act cannot be said to be voluntary and therefore cannot be used against them in evidence. It has also been observed that the confessional statement of co-accused/petitioner cannot be read against the petitioner as the same was shown to be not voluntary and that there was nothing incriminating against the petitioner in the alleged confessional statement of petitioner. The non-examination of public independent witnesses is also a loophole in the case of the prosecution. Another lacuna in the case of prosecution is non-examination of goldsmith who allegedly gave the purity certificate of gold and in the absence of his examination contents of purity certificate cannot be held to be duly proved. Therefore the judgment of conviction and order of sentence passed by the learned Trial Court are set aside. - Decided in favour of petitioner

Summary

Issues Involved:
1. Admissibility of confessional statements under Section 108 of the Customs Act.
2. Voluntariness of confessional statements.
3. Non-examination of independent witnesses.
4. Non-production of physical evidence (gold) in court.
5. Reliability of the purity certificate of gold.

Issue-wise Detailed Analysis:

1. Admissibility of Confessional Statements under Section 108 of the Customs Act:
The primary issue revolved around whether the confessional statements made by the petitioners under Section 108 of the Customs Act could be used against them. The court referenced the Supreme Court's judgment in Union of India v. Bal Mukund and Others, which held that a statement made by an accused cannot be used against a co-accused unless it falls under Section 30 of the Evidence Act. Consequently, the confessional statement of Ajit Singh could not be used against Om Prakash.

2. Voluntariness of Confessional Statements:
The petitioners argued that their confessional statements were obtained under coercion and duress. The court noted that Ajit Singh's medical examination report (MLC) showed injuries that suggested coercion, casting doubt on the voluntariness of his statement. The court reiterated the principle from Pakala Narayana Swami v. The King-Emperor and Noor Aga v. State of Punjab & Anr., emphasizing that a retracted confession must be corroborated by other evidence and that the burden of proving voluntariness lies with the prosecution.

3. Non-examination of Independent Witnesses:
The prosecution failed to produce two panch witnesses, Abhlesh Kumar and Vijay, who were involved in the recovery and seizure proceedings. The court highlighted that no explanation was provided for their non-examination, which weakened the prosecution's case. The court cited DRI v. Satyanarayan Agarwal, emphasizing that the non-examination of independent witnesses creates a material lacuna, benefiting the accused.

4. Non-production of Physical Evidence (Gold) in Court:
The gold allegedly recovered from Om Prakash was not produced in court for identification. The court found this to be a significant discrepancy, referencing Noor Aga's case, which stressed that non-production of physical evidence warrants drawing a negative inference under Section 114(g) of the Evidence Act. The absence of the gold bar and biscuit in court further weakened the prosecution's case.

5. Reliability of the Purity Certificate of Gold:
The purity certificate of the recovered gold, allegedly issued by a goldsmith, was not substantiated by the goldsmith's testimony. The court noted that mere marking of the certificate as an exhibit does not prove its contents without the author's testimony, as established in Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam @ Satteyya & Ors. and Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. The non-examination of the goldsmith led to the certificate being deemed unreliable.

Conclusion:
The court found several lacunae in the prosecution's case, including the involuntary nature of the confessional statements, non-examination of independent witnesses, non-production of physical evidence, and the unreliable purity certificate. Consequently, the court allowed the revision petitions, setting aside the judgment of conviction and order of sentence passed by the Trial Court. The petitioners were discharged of their bail bonds.