2020 (1) TMI 503 - HC - Customs

Smuggling - foreign currency - retraction of statements relied upon - prosecution of accused person - Section 137(1) of the Customs Act - HELD THAT - On perusal of deposition of PW 1 and PW 2, it has come on record that no incriminating material was found either on the person of the accused no.2 or from his baggage. The only material is sought to be relied upon is his statement recorded on 24th March 1996 which is subsequently retracted. The Appeal is premised on the ground that the learned Chief Metropolitan Magistrate has failed to accord any weightage to the said statement wherein the accused has confessed that he had met one Gurmit Singh and he acted as a carrier for smuggling the foreign currency and he also agreed to accompany the accused no.1 who was to act as a carrier to ensure the safe delivery of the foreign currency at Dubai. Perusal of confession statement of accused no.2 would disclose that there is no warning in the form of intimation contained therein that the statement is likely to be used against him, the intention being the possibility of coercion or inducement while recording the said statement is to be ruled out. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2 - In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion. Appeal dismissed.

Summary

Issues:
1. Acquittal of Suresh Kumar Parmar by the Addl. Chief Metropolitan Magistrate.
2. Attempted smuggling of foreign currency by accused persons.
3. Prosecution under Customs Act and IPC.
4. Evidence presented by the prosecution.
5. Retracted statement of accused no.2.
6. Legal validity of the confession statement.
7. Application of Customs Act and Indian Evidence Act.
8. Corroboration of evidence for conviction.
9. Time lapse between acquittal and appeal.

Analysis:

1. The case revolved around the appeal against the acquittal of Suresh Kumar Parmar by the Addl. Chief Metropolitan Magistrate, Mumbai. The Assistant Commissioner of Customs filed the appeal, alleging an attempt to smuggle foreign currency out of India, leading to the confiscation under the Customs Act, 1962.

2. The incident involved the interception of two passengers at Sahar Airport, Mumbai, attempting to board a flight to Dubai with concealed foreign currency. Accused no.1 admitted to concealing currency in various forms, including his rectum, while accused no.2 was alleged to be involved in the conspiracy. The prosecution contended that this act violated the Foreign Exchange Regulations Act and Customs Act, leading to charges under Section 135(1)(a) of the Customs Act and Section 120B of the IPC.

3. The Commissioner of Customs granted sanction for prosecution, and during the trial, witnesses testified against the accused. Accused no.2 retracted his statement, alleging coercion, and denied involvement. The Addl. Chief Metropolitan Magistrate found accused no.1 guilty but acquitted accused no.2 due to lack of corroborating evidence and conspiracy proof.

4. The prosecution argued on appeal that the retracted statement of accused no.2 should have been considered, but the High Court upheld the acquittal. The court noted the absence of material corroborating the statement and emphasized the importance of voluntary and truthful confessions for conviction.

5. The court highlighted the legal provisions under the Customs Act and Indian Evidence Act regarding statements made to Custom Officers and the necessity of corroboration for a retracted confession to sustain a conviction. The judgment emphasized the need for independent evidence to support a confession and the requirement for it to be voluntary and trustworthy.

6. Despite the significant time lapse between the acquittal and the appeal, the High Court found no legal infirmity in the lower court's judgment and dismissed the appeal against the acquittal of accused no.2. The court's decision was based on the lack of corroborative evidence and the retracted nature of the confession statement.