9911796707
TMI Blog2011 (1) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The case of the respondent is that on 4th July, 1985, the baggages of two domestic passengers Shri Subhash Jain and Akbal Jain travelling on IC 439, bound for Madras, were examined at Delhi Airport by customs officers in the presence of two independent witnesses. Thereafter, the petitioner and Akbal Jain were brought down and were asked to identify their baggage. The baggage with baggage claim tag No. 038639 was identified by the petitioner. The same was opened by the keys supplied by the petitioner. On search, 5 gold bars wrapped in newspaper and thereafter by adhesive tape were recovered. An expert was called, who certified the purity of gold as 23 Ct. and the weight of the same to be 2413 gms. The petitioner failed to produce an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agh and melted the same and were taking it to Madras. 3. After recording the statement of the petitioner and his co-persons under Section 108 of the Customs Act, the petitioner along with co-accused was arrested and produced before the learned ACMM on 5th July, 1985. Bail application was filed on behalf of the petitioner on 6th July, 1985 which was not signed by the petitioner but by his counsel wherein it was stated that he is a businessman dealing in tractor parts and has been falsely implicated in this case; the alleged recovery has already been effected and no further investigation is to be carried out; the statement has been coerced out of the petitioner, which stands withdrawn. 4. On filing of the complaint, the learned AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosure statement of the accused which has been retracted and in the absence of any other evidence on record, a person cannot be penalised without any independent corroboration. 6. Learned counsel for the respondent contends that the prosecution has proved recovery of gold of 23 Ct. purity weighing 2413 gms. The petitioner did not give any explanation or any legal evidence for lawful possession of the said gold. In every case of recovery of gold, it is not essential that there should be a foreign marking to prove that the gold is of foreign origin. The retraction made by the petitioner is no retraction in the eyes of law and moreover, mere retraction is not sufficient, the same should be translated into legal evidence. The prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner that the gold was of Indian origin but no evidence has been adduced by the defence. As per the evidence produced by the prosecution in the form of statement of the petitioner under Section 108 of the Customs Act, the gold was of foreign origin. In the statement under Section 313 Cr.P.C., the case of the petitioner is that he has been falsely implicated; he identified his bag and from the said baggage nothing incriminating was recovered, and a false recovery case was made against him to get award this case. As regards the statement Ex. PW1/A recorded under Section 108 of Customs Act is concerned, the explanation under Section 313 Cr.P.C. is that it was not a voluntary statement; the petitioner was tortured and forced to sign the blank p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d found in possession of the petitioner is smuggled. Though this statement is sought to be retracted after two days in the bail application which is not signed by the petitioner but by his counsel wherein it has only been written that the confession was coerced from him and the same stands withdrawn. This is not a proper retraction but a defence sought to be laid. This so called retraction does not cast a doubt on the voluntariness of the confessional statement. The reliance of the learned counsel for the petitioner on the decision rendered in UOI v. Bal Mukund (supra) is wholly misconceived. In the said case, the Hon'ble Supreme Court was dealing with the confession of the co-accused and was thus considering its evidentiary value under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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