2020 (1) TMI 508 - HC - Customs

Smuggling - contraband item - acquittal of accused - confessional statement - statement under coercion - offences punishable under Section 135(1)(a) (i) of the Customs Act 1962, read with Section 67 of the Foreign Exchange Regulation Act, read with Section 11 of the Customs Act, read with Section 77 of the Customs Act 1962, read with Section 135(1)(b)(i), read with Section 5a of the Imports and Exports (Control) 1947 - HELD THAT - The fact is that the accused were kept in the custody of the customs authorities when the statements were recorded. The accused were arrested only in the evening of 24-1-1987 and produced before the Magistrate on 25-1-1987. As noted earlier, the detention, in my view, was not legal. Therefore, it will be reasonable to assume that there was coercion or undue pressure exerted on the accused to make the confession. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed an The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law - The order of acquittal, thus, not be interfered with - appeal dismissed.

Issues Involved:
1. Validity of statements recorded under Section 108 of the Customs Act.
2. Legality of detention of accused by customs authorities.
3. Evidentiary value of unproduced panch witnesses and unproved panchnama.
4. Double presumption of innocence in case of acquittal.
5. Appellate court's power to review acquittal.

Issue-wise Detailed Analysis:

1. Validity of Statements Recorded under Section 108 of the Customs Act:
The prosecution relied heavily on the statements recorded under Section 108 of the Customs Act, asserting that they were voluntary and correctly recorded. However, the Additional Sessions Judge found that these statements lacked independent corroboration and were retracted by the accused, who claimed they were made under duress. The court emphasized that without corroboration, these statements could not sustain a conviction, especially when retracted. The judgment cited precedents such as *State of Maharashtra Vs. Harshad Vaherbhai Patel* and *Shri Malki Singh Vs. Suresh Kumar Himatlal Parmar* to support this view.

2. Legality of Detention of Accused by Customs Authorities:
The court scrutinized the detention of the accused by customs authorities from 22-1-1987 to 24-1-1987, noting that they were not produced before a magistrate until 25-1-1987. This detention was deemed illegal and a violation of fundamental rights under Articles 21 and 22 of the Constitution of India. The court inferred that the prolonged detention likely involved coercion, affecting the voluntariness of the confessions.

3. Evidentiary Value of Unproduced Panch Witnesses and Unproved Panchnama:
The prosecution failed to produce panch witnesses for the panchnama recorded on 22-1-1987 and 17-2-1987, which documented the seizure of gold and contraband goods. The court questioned the reliability of these documents without the testimony of panch witnesses. It highlighted that relying solely on the uncorroborated statements recorded under Section 108, without the panchnama being proved, was insufficient for conviction.

4. Double Presumption of Innocence in Case of Acquittal:
The judgment underscored the principle of double presumption of innocence in cases of acquittal. Firstly, the fundamental principle of criminal jurisprudence presumes innocence until proven guilty. Secondly, an acquittal by the trial court reinforces this presumption. The court cited *Chandrappa & Ors. V/s. State of Karnataka* to outline the appellate court's reluctance to interfere with an acquittal unless there are compelling reasons.

5. Appellate Court's Power to Review Acquittal:
The appellate court has full power to review, reappreciate, and reconsider the evidence upon which the acquittal is based. However, it must bear in mind the double presumption of innocence. The court concluded that the trial court's decision to acquit the accused was not illegal, improper, or contrary to law, and thus, there was no reason to interfere with the acquittal.

Conclusion:
The court dismissed the appeal, affirming the acquittal of the accused. The judgment emphasized the lack of independent corroboration for the statements recorded under Section 108, the illegal detention of the accused, and the unproved panchnama. It reinforced the principle of double presumption of innocence in acquittal cases and upheld the appellate court's cautious approach in reviewing such cases.

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