2025 (1) TMI 1158 - HC - Customs

Seeking grant of bail - smuggling of currency notes of U.S. Dollars and Gold - violation of provisions of section 77 of the Customs Act 1962 and Foreign Exchange Management Regulations 2000 and Foreign Exchange Management Act 1999 - corroboration of confessional statement - HELD THAT - The applicant was intercepted by the D.R.I. officials at CCS International Airport Lucknow and from the other co-accused persons the gold bullion was recovered whereas the applicant is connected with the present matter as the D.R.I. is said to be collected the evidence of conversations in between Ratnesh Pandey one of the co-accused person and the present applicant but the fact remains that there is no strong evidence that in consonance with the conversations any transaction has ever been done or the D.R.I. has failed to place any evidence that those conversations were specifically with respect to the offence which is said to be committed. Though it has been held by the Hon ble Apex Court in the case of Romesh Chandra Mehta Vs State of West Bengal 1968 (10) TMI 50 - SUPREME COURT that the custom officers are not the police officers and the statement recorded under section 108 of the Act, 1962 is admissible in evidence though there seems to be no quarrel regarding the same whereas the further issue is that can the statement of an accused recorded under section 108 of the Act, 1962 blindly be accepted without any corroboration of other evidences ? Infact the admissibility of an evidence is one aspect of the matter and the conviction can lead only on the basis of the confessional statement recorded under section 108 of the Act, 1962 is the other aspect of the matter and the answer would be no. This court is of the opinion that the confessional statement of an accused recorded under section 108 of the Act, 1962 cannot blindly be accepted unless it is corroborated by any independent evidence/material as the same would not lead to conviction. The examination of confessional statement of the accused is essentially required so as to find out that the same is not taken under coercion or under extraneous influences. The trial court has also to be conscious enough while examining the correctness and voluntariness of the nature of the statement of the accused. Further whether the alleged smuggled gold is under the prohibited category of gold or the restricted gold, is also one of the question which is to be looked into by the trial court at the subsequent stage. It has also been noticed that the applicant has no previous criminal history he is languishing in jail since 09-08-2024 coupled with the fact that he has undertaken that if he is granted bail he will not misuse the liberty of the same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides nature of accusation and severity of punishment in case of conviction nature of supporting evidence prima facie satisfaction of the Court in support of the charge reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and without expressing any view on the merits of the case this is a fit case of bail. Conclusion - The applicant s confessional statement under Section 108 while admissible requires corroboration by independent evidence to sustain a conviction. The applicant should be granted bail subject to conditions to prevent tampering with evidence or intimidating witnesses. Bail application allowed.

Summary

The core legal issue presented in this judgment is whether the applicant should be granted bail in a case involving alleged violations of the Customs Act, 1962, specifically under Section 135, and related provisions of the Foreign Exchange Management Act, 1999, and Foreign Exchange Management Regulations, 2000. The applicant was detained at CCS International Airport, Lucknow, with foreign currency, and the prosecution alleges involvement in smuggling activities. The Court considered the admissibility and sufficiency of evidence, including a confessional statement under Section 108 of the Customs Act, and the applicant's potential risk to the judicial process if released on bail.

The Court examined the legal framework surrounding the Customs Act, particularly Sections 77, 113, and 108, and relevant precedents. The Court noted that while statements recorded under Section 108 are admissible, they require corroboration by independent evidence to sustain a conviction. The Court referenced the case of Romesh Chandra Mehta, which established that customs officers are not police officers, thus making statements under Section 108 admissible. However, the Court emphasized the need for corroboration, citing the Bombay High Court's decision in Union of India v. Kisan Ratan Singh, which highlighted that a retracted confession cannot solely sustain a conviction without corroboration.

The Court scrutinized the evidence presented, including the applicant's alleged conversations with co-accused Ratnesh Pandey and the forensic examination of the applicant's mobile phone. The prosecution argued that these conversations indicated coordination in smuggling activities. However, the Court found that the prosecution failed to provide strong evidence linking these conversations directly to the alleged offense. The Court also considered the applicant's argument that the forensic report was not obtained from an authorized agency, questioning its admissibility under the Indian Evidence Act and the Information Technology Act.

The Court addressed competing arguments regarding the applicant's potential to tamper with evidence or threaten witnesses. The applicant argued that since the investigation was complete and the complaint filed, there was no risk of tampering. The prosecution countered that economic offenses have a significant societal impact and require stringent measures. The Court acknowledged the seriousness of economic offenses but found no substantial evidence suggesting the applicant would interfere with the judicial process.

In its significant holdings, the Court reiterated that a confessional statement under Section 108 of the Customs Act requires corroboration by independent evidence. The Court found that the prosecution did not present sufficient corroborative evidence to justify denying bail. The Court also emphasized the importance of Article 21 of the Constitution, which guarantees personal liberty, and the principle that bail is the rule and jail the exception.

The Court concluded that the applicant should be granted bail, subject to conditions ensuring the applicant's presence at trial and preventing interference with the judicial process. The Court ordered the applicant's release on bail upon furnishing a personal bond and sureties, with conditions including non-tampering with evidence, attendance at trial, and compliance with court orders. The Court clarified that its observations were confined to the bail application and should not influence the trial's merits.