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TMI Blog1992 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act. 2. Briefly stated, it was alleged that the accused No. 3 who is the present respondent and who was working in Dubai at the relevant time had along with the remaining accused been parties to an ingeneous method of smuggling various foreign items into the country. The prosecution contended that accused No. 3 used to dispatch parcels by sea, to certain destinations via Bombay and that the routing of these parcels was such that the transhipment had to take pace at Bombay. While the parcels were at Bombay, it is alleged that the two of the remaining accused who worked in the Foreign Post Office used to open the parcels in question and take out the contraband such as watches, costly sarees etc and that the remaining accused used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned trial Magistrate accepted the prosecution evidence and convicted the appellant under both heads and awarded him a sentence of rigorous imprisonment for six months and fine of ₹ 10,000/- in default rigorous imprisonment for two months under the first charges and rigorous imprisonment for 2 months and fine of ₹ 3,000/- in default rigorous imprisonment for one month under the second head of charge. The matter was thereafter carried in appeal to the Court of Sessions and the learned Sessions Judge after a very detailed and careful consideration of all the materials before him as also the law on the point, set aside the conviction and acquitted the accused of both the heads under which he had been convicted. It is agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused both under the provisions of the Imports and Exports (Control) Act as also under the provisions of the Customs Act. He therefore contends that the appellate order be set aside and that the conviction recorded by the trial Court be restored. 5. Mr. Kotwal, learned counsel appearing on behalf of the respondents has supported the appellate judgment and he points out to me, with some justification to my mind, that this Court is dealing with a judgment wherein the accused has been acquitted. He reiterates the position in law that interference with such a judgment can only be done in those of the few instances where it is demonstrated that the lower Court has ignored the material evidence of that it has recorded findings which can be cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the Customs Officer that this particular accused had not made any admissions in the first instance in spite of which the interrogation continued. Further more, it has come on record that the statement of the wife of the accused who was also shown as an accused by the Department before the trial Court, was first recorded and it was pointed out to the accused that both of them would be detained under CAFEPOSA if he did not make a clean breast of everything. In this situation the learned Judge has discarded the statement not only on the ground that it is tainted in so far as it is a retracted statement but more importantly on the ground that on the facts of the present case it cannot be treated as being a voluntary statement. As far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with the aspect of the admissibility of such a statement and it is now well settled law that since a Customs Officer is not a Police Officer a statement made to such an authority is admissible in evidence. Mr. Kotwal, has not disputed the admissibility but he has seriously assailed the evidentiary value of this statement in relation to the facts of the present case and to that extent the submission canvassed is a very sound and a valid one. In the case of Haroom Haji Abdullah v. State of Maharashtra, , the Supreme Court had occasion to observe that a Court should be put an caution while dealing with a statement under S. 108 of the Customs Act in so far as these statements are distinguishable from confessions recorded by a Magistrate who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated by me the voluntariness of the statement is in serious dispute and under these circumstances no conviction could be based on this statement. 8. Mr. Kotwal has also attacked the original findings whereby the accused is alleged to have identified and pointed out the three parcels and this circumstance has been used as a piece of corroborative evidence. Mr. Kotwal points out a fundamental error in the reasoning adopted by the trial Court wherein the learned trial Magistrate has erroneously delinked this particular piece of evidence from the earlier statement attributed to the accused. Mr. Kotwal submits, and very rightly to my mind, that there is virtually no distinction between admissions contained in the 108 statement and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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