2001 (1) TMI 101 - HC - Customs

Summary

Issues Involved:
1. Legality of the seizure of gold bars and fishing nets.
2. Voluntariness and admissibility of the accused's confessional statements.
3. Credibility of the prosecution's evidence and witnesses.
4. Involvement and complicity of the accused in the smuggling operation.
5. Impact of procedural irregularities on the prosecution's case.

Detailed Analysis:

1. Legality of the Seizure of Gold Bars and Fishing Nets:
The prosecution's case is based on the interception of a boat and a launch near Tuticorin, leading to the seizure of 120 gold bars and fishing nets of foreign origin. The gold bars were found concealed in a cloth bag in the engine room of the launch. The total value of the seized goods was Rs. 51,10,787/-. The defense argued that the seizure was made in the high seas, not at the shore, and questioned the credibility of the seizure process. However, the court held that the seizure was made at the shore, and the initial entrustment of the gold bars to customs officials was for safe custody, not seizure. The court emphasized the distinction between search and seizure, noting that the seizure was completed only at the shore.

2. Voluntariness and Admissibility of the Accused's Confessional Statements:
The accused retracted their confessional statements, claiming they were obtained under coercion and torture. The court examined whether these statements were voluntary and reliable. It noted that the statements were retracted 45 days after being recorded and that no complaints of torture were made when the accused were produced before the Magistrate. The court found no evidence of coercion or torture and held that the statements were voluntary. The court referred to the Supreme Court ruling in Naresh J. Sukhawani v. Union of India, which held that statements made before customs officials are material evidence under Section 108 of the Customs Act. The court also cited Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras, to support the admissibility of the confessional statements.

3. Credibility of the Prosecution's Evidence and Witnesses:
The prosecution relied on the testimonies of P.W. 1 (Superintendent of Police, Customs and Central Excise Department), P.W. 2 (an appraiser), and P.W. 3 (a Sipoy who translated the statements of the Sri Lankan accused). The defense argued that no independent witnesses were examined to prove the seizure. The court held that the evidence of customs officials could be relied upon if found trustworthy and reliable. It cited the Supreme Court ruling in Tahir v. State, which stated that the absence of independent witnesses does not affect the credibility of police officials' evidence if it inspires confidence. The court found P.W. 1's evidence to be trustworthy and reliable, noting that the defense failed to discredit his testimony.

4. Involvement and Complicity of the Accused in the Smuggling Operation:
The court examined the involvement of each accused based on their statements and the evidence presented. A1 to A3 admitted they were waiting to receive smuggled gold bars from a launch coming from Ceylon. A4's involvement was revealed through his statement and the statements of A1 to A3, which indicated that he was coordinating the smuggling operation with Razack of Colombo. A5 to A8, who were found in the launch with the gold bars, admitted to smuggling gold biscuits from Ceylon. The court held that the statements of the co-accused could be used as substantive evidence against each other, as per the Supreme Court ruling in Naresh J. Sukhawani v. Union of India.

5. Impact of Procedural Irregularities on the Prosecution's Case:
The defense raised several procedural issues, including the late production of the accused's statements and the lack of independent witnesses. The court addressed these concerns, noting that the late production of statements did not affect their credibility, as the accused were in jail and could not have signed blank papers. The court also dismissed the argument that the statements should have been recorded in Singalese and then translated into Tamil, finding that P.W. 3's role as an interpreter was sufficient. The court concluded that the procedural irregularities did not undermine the prosecution's case.

Conclusion:
The court found the prosecution's evidence credible and the confessional statements of the accused voluntary and reliable. It held that the seizure of the gold bars and fishing nets was legal and that the accused were involved in the smuggling operation. The procedural irregularities raised by the defense did not affect the overall credibility of the prosecution's case. The court's judgment was based on a thorough examination of the evidence and adherence to legal principles, leading to the conviction of the accused.