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TMI Blog2019 (2) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... 111 and 112 of the Customs Act by the Commissioner Customs (P), Lucknow on 05.08.2014 and the said order records the entire proceedings conducted during the investigation. A perusal of the aforesaid order would indicate that no efforts were made by the appellants to prove that the confessional statements were made voluntarily. No Customs Officer or any independent witness was examined by the said authority which could prove that the said confessional statement was taken voluntarily and could be used as a substantial piece of evidence against the respondents. A confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused - In the present case the CESTAT has rightly concluded that a confiscation and penalty order was passed solely on the retracted statement of the appellant Mr. Shakil Ahmad Khan and father of the appellant Mr. Mridul Agarwal and further these persons were not examined in the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 20.12.2013 and again on 13.01.2014), that the seized gold was given to him by Shri Satish Kumar and Mridul Agarwal for delivering Lucknow, can be used against 'noticee' for fixing liability, even is retracted subsequently in his defense reply dated 11.06.2014? Brief facts giving rise to these appeals are that on 27.11.2013, a team of Customs (Preventive) Officers of Lucknow Commissionerate intercepted the appellant - Shakil Ahmad Khan (respondent in Customs Appeal No. 3 of 2018) when he was travelling by UPSRTC Bus No. UP33T9412 on Barabanki - Bahraich Road near Ram Nagar Railway Crossing. Statement of Shakil Ahmad Khan was recorded on 27.11.2013 at Customs Commissionerate, Lucknow wherein he stated that he has been doing business of making gold and silver ornaments for the last 20 years, the gold carried by him has been handed over to him by Mridul Agarwal of Bahraich (about 01 Kg) and Satish Kumar of Bahraich (about 700gms), the gold had been handed over to him at his shop at about 11.00AM in Bahraich, he does not know the name and address of the person to whom the goods were to be delivered, the said foreign origin gold has been smuggled into India through Nep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier version. Shakil Ahmad was subsequently arrested under Section 104 of the Act, 1962 on 27.11.2013 and was produced before the Chief Judicial Magistrate (EF), Lucknow on 28.11.2013 for obtaining judicial custody. That search of residential premises of Shakeel Ahmad Khan was carried out on 28.11.2013 but nothing objectionable was recovered. It is also evident from the record that summons were issued to Satish Kumar on 09.12.2013 for his presence on 13.12.2013 and his statement was recorded on the same date. He clearly retracted from his earlier statement and asserted that he had not given or handed over any such item to Shakil Ahmad Khan and that he had no connection with the aforesaid ceased foreign original gold. Summons were also issued to Krishna Kumar, who in his statement stated that he had suffered paralysis in past and on seeing officers and the Police, he got nervous and might have told like that and further stated that he in his full consciousness stated the truth that neither he nor Mridul Agarwal had anything to do with the seized gold nor did he talk to Shakil Ahmad Khan on 27.11.2013. Summons were also issued to Mridul Agarwal and Mohd. Daud, the Muneem on 03.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments are not admissible, as evidence under the provisions of Section 138B of Customs Act, which provides that - if an authority in any proceedings under the Act wants to rely upon the statement of any person (made during enquiry), such person is required to be examined as witness and if the adjudicating authority finds the evidence of the witness 'admissible', then such witness should be offered for cross examination and only thereafter the evidence is admissible. In absence of compliance with the provision of Section 138B of the Act, the statements are not admissible as evidence and accordingly, the case of revenue against the appellants namely Shri Mridul Agarwal and Shri Satish Kumar have categorically denied their connection with the seized Gold and in absence of any corroborative evidence the imposition of penalty on them is bad and fit to be set aside . In light of the aforesaid facts, we have been called upon to determine whether the substantial question of law as formulated by the appellants deserves admission and further consideration. With regard to the first substantial question of law raised by the appellant they have stated that judgment and order of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y passenger about a black packet. The officers asked about his profession, when he told that he is a gold artisan, the Officer dragged him, alleging that the gold belongs to him. We have perused the record from which it is evident that there is no other material for imposition of the penalty apart from confessional statement of Shakil Ahmad Khan. Facts in the case of Collector of Customs Madras Vs. D. Bhoormull reported at 1983 (13) ELT 1546 (SC) are distinguishable and would not be applicable in the facts of the present case as there was no other evidence produced by the Customs department against the respondents except their confessional statement which could assist them in linking the respondents to the offence of smuggling. In the case of Noor Aga Vs. State of Punjab and another 2008 16 SCC 417 , the Hon ble Supreme Court has delved in detail about the weightage to be given to a confessional statement which has been retracted subsequently. The Hon ble Supreme Court has held that a retracted confessional statement may be relied upon but a rider must be attached thereto, namely, if it has been made voluntarily. The burden of proving that such a confession was made vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated . 12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar MANU/SC/0059/1964 : (1964) 6 SCR 623 at 631-633 wherein it was observed: As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval. By the law laid down above it is clear that a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. In the present case the CESTAT has rightly concluded that a confiscation and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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