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TMI Blog2009 (3) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate, Amritsar, and the judgment dated 30-9-2002, rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld - Crl. Revn. No. 2078 of 2002 - - - Dated:- 19-3-2009 - Sham Sunder, J. Shri A.K. Jain, Advocate, for the Petitioner. Shri Vibhor Bansal, CGC, for the Respondent. ORDER This revision petition is directed against the judgment dated 30-9-2002, rendered by the Court of Additional Sessions Judge, Amritsar, vide which it dismissed the appeal, against the judgment of conviction and the order of sentence dated 16-12-1999, rendered by the Court of Chief Judicial Magistrate, Amritsar, convicting the accused, for the offence, punishable under Section 135 of the Customs Act, (hereinafter referred to be as the Act only) and sentenced him to undergo RI for a period of four years, and to pay a fine of Rs. 15,000/-, in default of payment of the same, to undergo further rigorous imprisonment, for a period of six months. 2. The facts, in brief, are that on 27-2-1991, at about 14.30 hours, a special picket (naka) was held by the Border Security Force Officials, consisting of Mange Ram, Inspector, Anil Anand, Sub-Inspector, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , through receipt alongwith Panchnama and recovery memo. These gold biscuits were got weighed, valued and tested, from Experts Vijay Kumar and Ghansham Dass, who opined that the same were of 24 carat purity, valued at Rs. 1,26,51,100/-. 78 gold biscuits recovered subsequently on 21-3-1991 were also taken into possession, through recovery-cum-seizure memo. These gold biscuits were also got weighed valued and tested from Vijay Kumar and Ghansham Dass, who opined the same to be of 24 carat purity and valued at Rs. 31,82,445/-. In the voluntary statements, made by the accused, which were reduced into writing, they admitted the manner of importation and factum of recovery, as stated above. It was further stated that the acquisition/posses-sion/importation and indulgence in the aforesaid activities of smuggling of gold, was in contravention of the provisions of Import Control Order No. 17/55, as amended, issued under Section 3(1) of the Imports and Exports Control Act, 1947 read with Section 11 of the Customs Act, 1962, and Section 13 of the Foreign Exchange Regulations Act, 1973. It was further stated that the accused, thus, committed an offence, punishable under Section 135 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence to the accused merely on the basis of his alleged confessional statements, under Section 108 of the Act, recorded by the Customs officers. He further submitted that the Customs officers, being Police Officers, the confessional statements, allegedly made before them by the accused, were hit by the provisions of Section 25 of the Indian Evidence Act, 1872 and, thus, were not legally admissible. He further submitted that no other evidence was produced by the complainant to prove that the accused was found in possession of the gold biscuits, aforesaid and thus, he committed the offence, punishable under Section 135 of the Act. He further submitted that the Courts below were, thus, wrong in recording conviction, and awarding sentence, on the basis of legally inadmissible statements, under Section 108 of the Act, allegedly made by the accused, resulting into miscarriage of justice. He, thus, submitted that the judgments of conviction and the order of sentence, being perverse and illegal, are liable to be set aside. 13. On the other hand, the Counsel for the respondent submitted that the voluntary confessional statements made by the accused, before the Customs officers, under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to make them Police Officers, within the meaning of Section 25 of the Evidence Act. 15. In Romesh Chandra Mehta v. State of West Bengal, AIR 1970, (SC), 940 = 1999 (110) E.L.T. 324 (S.C.), a Constitutional Bench of the Apex Court, observed that the test for determining, whether an Officer of the Customs, is to be deemed a Police Officer, is whether, he is invested with all the powers of a Police Officer, qua investigation of an offence, including the power to submit a report under Section 173 Cr.P.C. It was held that since a Customs Officer exercising the powers, to make an enquiry, could not submit a report, under Section 173 Cr.P.C, and as such, he could not be said to be a Police Officer, within the meaning of Section 25 of the Evidence Act. 16. In Illias v. Collector of Customs, Madras, AIR 1970 (SC) 1065 = 1983 (13) E.L.T. 1427 (S.C.), the same very Bench was required to consider, if the Customs Officers under the Customs Act, 1962, were Police Officers, within the meaning of Section 25 of the Evidence Act. The Apex Court, referred to all the cases earlier decided, and came to the conclusion, that they were not Police Officers, within the meaning of Section 25 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Evidence Act and, as such, inadmissible into evidence, being in the nature of confession or not. While answering the poser, the Apex Court held that, in order to claim the benefit of the guarantee, against testimonial compulsion, embodied in clause (3) of Article 20 of the Constitution of India, it must be shown, firstly, that the person, who made the statement was accused of any offence and secondly, that he made this statement, under compulsion. The phrase accused of any offence includes within its ambit, only a person, against whom a formal accusation, relating to the commission of an offence, has been levelled, which, in the normal course, may result in his prosecution. In these circumstances, it was held by the Apex Court, that when the statement of the appellant, was recorded, by the Customs Officers, under Section 108 of the Act, the appellant was not a person accused of any offence under the said Act. It was further held that an accusation which would stamp him, with the character of such a person, was levelled only, when the complaint was filed against him, by the Assistant Collector of Customs, complaining of the commission of offences, under Section 135(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when he was produced before the Court, during the course of remand and even during the course of trial, to retract from such statements. The mere fact that he has retracted from such confessional statements, after about eight years, in itself, goes to show that he voluntarily made the same, but lateron his retraction was only an afterthought. The voluntary confessional statements made by the accused coupled with the recovery of gold biscuits, with regard to the possession/acquisition/importation whereof he could not produce any proof, were sufficient to record his conviction and award him sentence. In Union of India v. Satrohan, 2008 (3) RCR (Crl.) 803, (SO recovery of 99 bags of contraband from the accused was effected by the Customs Officers. The accused retracted from his voluntary confessional statements, after more than six years. In these circumstances, it was held that the retraction was an afterthought and the conviction could be based on such voluntary confessional statements. The principle of law, laid down, in Union of India s case (supra) is fully applicable to the facts of the instant case. The submission of the Counsel for the revision-petitioner, being without meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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