2014 (7) TMI 778 - HC - Customs

Retracted statements - Acquittal from offences punishable under section 135 (1)(a)(i) and 135 (1)(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947 - carrying contraband gold in the vessel - said gold was smuggled into India from Sharjah - evidence of two witnesses i.e., the customs officer - Held that - the statement under section 108 is admissible and it can be relied also. However, if at all it is retracted, then, weightage can be given to it only if there is corroboration on other material particulars, In the present case, as the panchas did not corroborate and the prosecution did not examine the other panch, that material evidence collapsed. The learned trial Judge has rightly observed that in the absence of the statements of these crew members, when the same were relevant u/w 108(b) of the Customs Act, it was the duty of the Prosecution to examine either the interpreter or the scribe and record their statements in order to confirm the veracity of the contents of the statements. The defence was successful in creating doubt in the mind that the vessel Rajendra Jyoti was not the only vessel berthed at the Hay Bunder during that period but nearly 25 vessels had arrived and, therefore, the possibility that any other person might have thrown the tin filled with gold bars in the sea could not have been overruled. - the trial Court has taken an evenly balanced view while assessing the evidence and, therefore, there is no need to disturb the finding of the trial Court. - Decided against the revenue.

Issues Involved:
1. Legality of the acquittal judgment by the Metropolitan Magistrate.
2. Admissibility and reliability of the respondent's statement under section 108 of the Customs Act.
3. Corroboration of the respondent's statement with other evidence.
4. Procedural and evidentiary discrepancies in the prosecution's case.

Detailed Analysis:

1. Legality of the Acquittal Judgment by the Metropolitan Magistrate:
The appeal challenges the acquittal judgment dated 17.1.1994, which acquitted the respondent of offenses under section 135 (1)(a)(i) and 135 (1)(b)(i) of the Customs Act, 1962, and Section 5 of the Imports and Exports (Control) Act, 1947. The prosecution argued that the acquittal was erroneous and illegal, asserting that the trial court failed to fully accept the evidence provided by key witnesses, PW1 Akhilesh Kumar and PW2 Narendrakumar Punjabi, who corroborated the recovery of gold based on the respondent's confession.

2. Admissibility and Reliability of the Respondent's Statement under Section 108 of the Customs Act:
The prosecution emphasized the admissibility of the respondent's statement recorded under section 108 of the Customs Act, arguing that such statements are admissible as the customs officer is not a police officer. They cited the Supreme Court's decision in K.I. Pavunny vs. Asstt. Collector (HQ), CE Collectorate, Cochin, which supports the admissibility of retracted confessions if found to be voluntary and truthful. However, the defense argued that the conviction cannot solely rely on the respondent's statement under section 108, especially in the absence of corroborative evidence and the presence of procedural irregularities.

3. Corroboration of the Respondent's Statement with Other Evidence:
The prosecution's case relied heavily on the respondent's confession and the recovery of gold from the sea. However, the defense pointed out that the panchas of the search and seizure panchanama did not support the prosecution's case. The defense also highlighted the lack of corroboration from the crew members' statements, which were recorded under section 108 but not presented in court. The trial court noted that the prosecution failed to examine the interpreter or the scribe who recorded the crew members' statements, further weakening the prosecution's case.

4. Procedural and Evidentiary Discrepancies in the Prosecution's Case:
The defense argued that the prosecution's case was marred by inconsistencies and procedural irregularities. They noted that the panchanama was not reliably proved, as the panchas did not corroborate the prosecution's version of events. Additionally, the defense raised doubts about the origin of the recovered gold, suggesting that it could have been thrown into the sea by someone from another vessel, given the presence of multiple vessels at Hay Bunder during the relevant period. The trial court found that the prosecution failed to establish a clear nexus between the respondent and the recovered gold, leading to the acquittal.

Judgment:
The appellate court upheld the trial court's judgment of acquittal, emphasizing the importance of corroborative evidence and the procedural safeguards required for the admissibility of confessions. The court reiterated the principles laid down by the Supreme Court in Muralidhar @ Gidda & anr. vs. State of Karnataka, which caution appellate courts against disturbing trial court findings unless they are palpably wrong or based on erroneous views of the law. The appeal was dismissed, affirming the trial court's balanced assessment of the evidence and procedural adherence.

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