1997 (8) TMI 327 - AT - Customs

Summary

Issues Involved:
1. Admissibility and reliability of confessional statements of co-accused.
2. Retraction of confessional statements and its impact.
3. Disparity in the penalties imposed on different accused.
4. Legality of prolonged custody and its effect on the confessional statements.

Detailed Analysis:

1. Admissibility and Reliability of Confessional Statements of Co-Accused:
The primary issue revolves around whether the confessional statements of co-accused can be relied upon to implicate the appellant. The appellant's counsel argued that confessional statements alone are insufficient to establish guilt unless corroborated by other evidence. The counsel cited Supreme Court decisions (AIR 1964 SC 1184 and AIR 1968 SC 832) to support this contention. The Tribunal noted that these decisions pertained to criminal proceedings under the Criminal Procedure Code and Section 30 of the Indian Evidence Act, which treat such confessions as weak evidence.

However, the Tribunal referred to the Supreme Court's decision in Naresh J. Sukhawani v. Union of India (1996 (83) E.L.T. 258) and K.I. Pavunny v. Assistant Collector (HQ), C.E., Cochin (1997 (90) E.L.T. 241), which clarified that confessional statements made to Customs officials under Section 108 of the Customs Act are substantive evidence and can be sufficient for conviction if corroborated by other evidence. The Tribunal concluded that the confessional statements of the co-accused, corroborated by the seizure of gold biscuits and other circumstantial evidence, were sufficient to establish the appellant's involvement in smuggling activities.

2. Retraction of Confessional Statements and Its Impact:
The appellant's counsel argued that the confessional statements were retracted after two months, suggesting they were made under duress or coercion. The Tribunal emphasized that the burden of proving coercion or threat lies on the appellant. The Tribunal noted that the co-accused did not complain of ill-treatment before the Magistrate, and there was no evidence of physical harassment by the Customs officers. The Tribunal referred to the presumption under Section 114(g) of the Indian Evidence Act that official acts are done in accordance with the law. The Tribunal concluded that the retraction of statements did not diminish their evidentiary value as the appellant failed to prove coercion or threat.

3. Disparity in the Penalties Imposed on Different Accused:
The appellant's counsel highlighted the disparity in penalties, noting that the appellant was penalized Rs. 20 lakhs while co-accused Mr. Abdulla, who was also a partner in the smuggling activity, was penalized only Rs. 50,000/-. The Tribunal acknowledged this disparity and expressed surprise at the low penalty imposed on Mr. Abdulla, especially given the value of the smuggled gold. The Tribunal criticized the lack of reasoning in the adjudication order for this disparity but clarified that the penalty on the appellant should be based on his role in the smuggling activity, not the penalty imposed on others.

4. Legality of Prolonged Custody and Its Effect on the Confessional Statements:
The appellant's counsel argued that the prolonged custody of the co-accused (from 24-2-1989 to 27-2-1989) diminished the value of their confessional statements. The Tribunal noted that the Customs officers claimed the co-accused were arrested on 26-2-1989 and produced before the Magistrate on 27-2-1989. The Tribunal referred to the decision of the Calcutta High Court (1997 (89) E.L.T. 478) which held that the burden is on the appellant to prove illegal detention or coercion. The Tribunal found no evidence of illegal detention or coercion and concluded that the prolonged custody did not affect the reliability of the confessional statements.

Conclusion:
The Tribunal upheld the admissibility and reliability of the confessional statements of the co-accused, corroborated by other evidence, to establish the appellant's involvement in smuggling activities. The retraction of statements was not deemed sufficient to diminish their evidentiary value as the appellant failed to prove coercion or threat. The Tribunal acknowledged the disparity in penalties but emphasized that the penalty on the appellant should reflect his role in the smuggling activity. Considering the totality of circumstances, the Tribunal reduced the penalty on the appellant from Rs. 20 lakhs to Rs. 15 lakhs. The appeal was otherwise dismissed.