1997 (3) TMI 304 - AT - Customs

Summary

Issues Involved:
1. Recovery of gold biscuits from the appellant.
2. Voluntariness of the appellant's statement to customs officers.
3. Legitimacy of the search and the credibility of the witnesses.

Issue-Wise Detailed Analysis:

1. Recovery of Gold Biscuits from the Appellant:
The customs officers, acting on information, conducted a search at Modern Dutta Jewellers on 1-2-1991, resulting in the recovery of gold biscuits from the premises and the appellant. The appellant initially denied possession of contraband but later admitted to concealing six gold biscuits in his rectum. The gold was assayed and found to be 24 carats. The adjudicating authority found the appellant guilty and imposed a penalty of Rs. 10,000/-.

2. Voluntariness of the Appellant's Statement:
The appellant argued that his statement was not voluntary, citing prolonged detention and coercion. He was detained on 1-2-1991 and produced before the C.J.M. on 4-2-1991. His statement was recorded on 2-2-1991 and 3-2-1991, with no statement recorded on 1-2-1991, indicating duress. The Gujarat High Court's judgment in Union of India v. Abdulkadar Abdulgani Hasmani supported this claim, stating that delayed recording of statements under prolonged custody raises doubts about voluntariness.

3. Legitimacy of the Search and Credibility of the Witnesses:
The appellant challenged the recovery of gold, arguing that it was improbable for him to eject gold biscuits from his rectum in the presence of others. The adjudicating authority inadequately addressed this plea, merely linking it to the appellant's admission of gold recovery from the shop premises, which only proved his presence at the scene. Furthermore, the appellant questioned the credibility of the witnesses, who were rickshaw pullers from a distant locality rather than respectable local persons. The adjudicating authority's explanation that "willing nearby persons were requested to sign as witnesses" was insufficient and admitted that the witnesses were not from the locality, casting doubt on the recovery process.

Conclusion:
The appellate tribunal found significant issues with the manner of the search and the recording of the appellant's statement. The prolonged detention and delayed statement recording suggested coercion, and the choice of non-local witnesses undermined the credibility of the recovery process. Consequently, the penalty of Rs. 10,000/- imposed on the appellant was set aside, and the appeal was allowed.