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TMI Blog1992 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... a from Kakdwip at about 02.00 hrs on 29-3-1984. The same were intercepted at Kulpi More. There was another chocolate colour ambassador car behind these two vehicles which escaped towards Kakdwip while the above two vehicles were intercepted by the Customs Officers. Thereafter, the Jeep as well as the Ambassador Car were stopped and it was found to contain package of wrist watches of foreign origin. There were five persons in the Jeep and the car, who disclosed their identities as Mrinal Saha, Kanwarlal Jain, Amar Singh, Govindlal Modi and Md. Kalachand. According to the case of the Department, these persons stated that a trawler named "Kingfisher" had been engaged to carry these wrist watches from a foreign ship and the watches were off-loaded at Harwood Point, Kakdwip to these vehicles. On the strength of that information, the Customs Officers rushed and singled out the trawler inside a canal in Kalinagar area at the extreme No. 8 Ghat of Kakdwip. There were 10 crew members inside the same who disclosed their names as Abdul Gani, Ali Mohd. Umar, Ashim, Kashim, Md. Soleman, Hussain, Sakeh Mohammed, Suleman and Noor Mohammod. On search from that trawler, they recovered two pairs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the chocolate colour car which was the third one escaped from Kulpi. The statement of Govindlal Modi who is the elder brother of appellant was also taken and he also stated that the appellant was doing business in smuggled watches. He also corroborated the statement of Mrinal Saha. 4. The statement of Kanwarlal Jain alias Kamal Raj who was intercepted along with the smuggled goods by the Customs Officers on 29-3-1984 at Kulpi was also taken. He had stated that he along with Govindlal went to Kakdwip where the huge packages were loaded from the trawler in the car. He also stated that he travelled in the jeep along with Mrinal Saha. 5. The statement of Amar Singh, the driver of the seized jeep was also taken, who also stated that he took the jeep to Kakdwip from where the packages were loaded in the vehicle from the trawler. The statements of Md. Kalachand and Abdul Gani, Suleman, Md. Umar, Md. Soleman, Hussain & Ashim, Noor Mohd., Ali Mohd, Kashim, Sakeh Md. were also taken by the Departmental Officers. The appellant was implicated in his case by the statement of the above persons. Accordingly, show cause notices were issued to the appellant Om Prakash Modi, Giridharilal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandigarh (5) 1987 (29) E.L.T. 668 (T) - Chandrabadan Bavabhai Jadhav v. Collector 8. Replying to the above-said contentions, the learned Senior Departmental Representative Shri S. Dutta Majumder contended before us that there are several circumstances and evidence in this case implicating the appellant. He pointed out that it is quite clear that a detailed plan had been worked out by the appellant along with the others to smuggle a huge quantity of watches into the mainland from a foreign vessel with the help of a fishing trawler named "Kingfisher" and two ambassador cars and a jeep. It was also pointed out that almost Rs. 50 lakhs worth of wrist watches were seized along with the trawler, one ambassador car and a jeep plus a small quantity of miscellaneous goods. Shri Majumder also pointed out that five people including the elder brother of the appellant Govind Lal Modi were apprehended at the spot and wrist watches from the ambassador car WMD 2483 and jeep No. BHF 5043. He also pointed out that there were five occupants of the above-said vehicle, viz. Mrinal Saha, Kanwarlal Jain, driver Omar Singh, who were found seated in the ambassador car and Govindlal Modi, the elder brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates this version. In such circumstances, it was pointed out that the department has proved the complicity of the appellant in the above-said smuggling transaction and, therefore, he is a person concerned with the above transaction of smuggling and the whole operation was done at the instructions of the appellant. Therefore, he is a person concerned with the conveyance of the smuggled goods and liable to be penalised under Section 112 of the Customs Act, 1962. In support of his contentions, he relied on the following decisions :- (a) 1984 (15) E.L.T. 129 - K.A. Hajee v. Collector of Customs (b) 1987. (27) E.L.T. 74 (Tri.) = 1986 (9) ECR 574 - Sukar Narain's case. 9. We have considered the submission of both the sides. The point that arises for our consideration is whether the imposition of penalty of Rs. 1 lakh on the appellant under Section 112 of the Customs Act is in accordance with the law. In order to deal with this point, it is very essential for us to deal with the decisions which are relied on by the learned Advocate for the appellant. The learned Advocate Shri Bholanath Sen, in the first instance, contended that the only evidence available in this case is the evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but this section does not say that the confession is tantamount to proof. Clearly there must be other evidence. The confession is only one element on the consideration of all the facts proved in the case it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct." 11. A perusal of the decision goes to show that the confession of a co-accused is a weak type of evidence and there must be independent corroboration on the same. It is also seen that this decision was followed by the Supreme Court in a decision reported in AIR 1952 SC 159: A co-accused who confesses is naturally an accomplice and his evidence is not on oath. Therefore, prudence requires that a conviction can be based only if the same is corroborated by independent evidence. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of Section 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co-accused without corroboration." 13. It is now seen that in this case, the statements given by the above persons were retracted. Therefore, the amount of credibility to be attached to the retracted confession as against the appellant is to be considered by the Tribunal, as held by their Lordships. As a matter of prudence and practice, a Court would not find a person guilty only on the confession of a co-accused without independent corroboration. In the above-cited at paras 10 and 11, their Lordships further held as follows :- "(10) The case of the Judicial Committee dealt with accomplice evidence which was sought to be corroborated by retracted confessions. The case of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (b) to Section 114 of the Evidence Act because the Illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the evidence available in this case. The most important evidence which was relied on by the learned Senior Departmental Representative is the statement of Govindlal Modi who is none other than the elder brother of the appellant. Govindlal Modi had given a statement before the Customs Officers on 29-3-1984. That statement of Govindlal Modi given on 29-3-1984 reads as follows :- "I, Govindlal Modi son of late Rameshwar Lal Modi live at 123, Chittranjan Avenue, First floor, Calcutta-73 with my family. Today on 29-3-1984 I am giving my statement before Customs Officer with my own will. I am a driver of the car number W.M.D. 2483. This car belongs to my brother Sri Ajoy Kumar Modi - who lives with me at the above-mentioned address. We live in a joint family, and this car is property of both brothers. Last Friday, on 23-3-1984, Bijoy Sharma who is resident of 38, Tarachand Dutt Street, Calcutta, met with me and asked me to give the car on hire. I know him since last two years and it is also known to me that he does smuggling. Bejoy Sharma told me that his some goods are to be unloaded from the ship at Kakdwip, the same is to brought by my car. For this job he assured me to give 3000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove packing room of Himani Snow, Powder etc. During day time key of the above room is kept by Om Prakash and in the night it is given to us (myself and my wife) for using the same to have night sleep. Omprakash has a medicine shop named and styled as "Mavsh Pharmacy" at 7, Zakaria Street, Calcutta. The said shop is looked after by Omprakash, Girdharilal, Vijoy, Ashoke, Omprakash's son Padip. The Gaddi at 41A, Tarachand Dutta Street is looked after by Omprakash and Giridharilal. On many occasions, I have heard Omprakash and Giridharilal to discuss about illicit transaction of smuggled gold. So far I heard the smuggled gold had been smuggled by them from Bangladesh. I could hear the above conversation since I also sit in the above Gaddi in connection with my transport Brokery business in the name & style of "Pradip Transport". I am running the above business for the last 6 years. My partner was Gopal Sharma who was with me for 2 years. Thereafter, Bijju Sharma became my partner and subsequently he became the friend of my brother Omprakash. Since last six months he became interested in Omprakash illegal business and he was taken into confidence by my brother Omprakash. Bijju used to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d us to wait for a while. We two began to wait in the car. At about 04.00 hrs. in the night, Serang came and called us and wanted to off-load goods from the trawler. Serang and other Laskars off-loaded all total eight medium size wooden boxes from the trawler and loaded in the back of and inside the car. Those boxes were much heavy. With those eight boxes of goods we reached the Gaddi of Omprakash Babu in Calcutta at about 07.00 hrs. in the morning by that car from Kakdwip through Diamond Harbour Road. Omprakash Babu was in his gaddi then. As per his directions, those eight boxes of goods were off-loaded in the gaddi from the car with the help of coolies. After that, I returned to Omprakash Babu the full amount of Rs. 20,000/- which he gave me. After 3/4 days of that incident, Omprakash Babu told me that I brought his goods and for that he gave me Rs. 1,000/-." 17. This statement is in contradiction with the statement of the co-accused Govindlal Modi. In the statement of Govindlal Modi, he stated that Giridhari came and directed Kalachand and Mrinal Saha to go by ambassador car WM10 2483. Giridhari gave Mrinal Saha Rs. 25,000/- for incidental expenses. He also gave Rs. 21,000/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and back seat from a trawler. After loading of the goods, I asked my friend Govinda Modi about the goods. To that Govinda said that I need not know about the goods. According to their instructions, we (myself and Govinda) started the Car. On way back, inspite of my un-willingness, I could not raise any protest. We were scheduled to come in front of Metro Cinema." This statement also does not implicate the appellant. His statement implicates Govindlal Modi. This is further in contradiction to the statements given by the other persons, i.e. Mrinal Saha and Govindalal Modi himself. This statement of Kalachand was dated 29-3-1984. He had also given another statement dated 31-3-1984. In that statement, for the first time he stated that on 26th March, 1984, Govindlal Modi went to him at 7 p.m. and asked him to come to the Guddi in the next afternoon. Giridharilal was present with him. Next day, at 5 p.m., he went to Guddi where Giridharilal and Omprakash (appellant) were present. He asked him to come on 28th March afternoon at 5 p.m. and accordingly he went there at 5 p.m. There, Omprakash Modi, Giridharilal, Govindalal and Mrinal Saha were busily talking something. He waited there till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1984 does not implicate the appellant, but he introduced the name of the appellant only on 31-3-1984. Therefore, there is an apparent contradiction between his two statements. This statement given by him is completely contradictory to the statement given by Mrinal Saha which we had already discussed above. The statement of Mrinal Saha is further in contradiction with the statement of Kalachand inasmuch as even with respect to Kalachand he did not mention the name of the appellant on 29-3-1984. It was only on 31-3-1984, for the first time, he introduced the name of the appellant; but the story given by him implicating the appellant is completely contradictory to the story given by Govindalal Modi. It is also in contradiction to the story given by Mrinal Saha. In this connection, it would be relevant for us to extract the observation of their Lordships in the case Dagdu v. State of Maharashtra, reported in AIR 1977 SC 1579 (pp 1586). The same appears below :- "He made several significant statements for the first time in the Court and though we agree that an approver has real incentive to speak out his mind after tender of pardon, it is impossible to reconcile his earlier statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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