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TMI Blog2020 (1) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed an The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law - The order of acquittal, thus, not be interfered with - appeal dismissed. - CRIMINAL APPEAL NO. 136 OF 1995 - - - Dated:- 17-12-2019 - K.R. SHRIRAM, J. Ms Anuradha Mane for Appellant Mr. Taraq R. Sayed for Respondent Nos.1, 2 5 ORAL JUDGMENT: 1 This is a case where the customs authorities are impugning an order of acquittal dated 8-10-1993 passed by the Additional Sessions Judge, Mumbai, acquitting respondent nos.1, 2, 3, 4 and 5 of offence under various provisions of Customs Act 1962 and Imports and Exports (Control) Act 1947. 2. It is noted that accused no.4 during the course of pendency of this appeal died and as per the order dated 25-11-2011, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the import general manifest filed by the person in charge of the conveyance of the vessel under Section 30 of the Customs Act, nor were these goods mentioned in the personal property list of the vessel. As there were no legal documents for import of those goods, those goods were also seized under a panchnama in the reasonable belief that they were smuggled and liable to confiscation. 5. On 23-1-1987 the statement of accused no.1 was recorded. The statement is recorded in English but it is stated that it was read over to accused no.1, in Hindustani who accepted it and signed it. Further statement of accused no.1 was recorded in a similar fashion, i.e., asking questions in Hindi, answering in Hindi, but written in English and read over to accused no.1, who has signed it. The third statement of accused no.1 was recorded on 31-1-1987 and all these statements, of course have an endorsement that it has been read over and explained in Hindi to accused no.1, who has accepted it and signed it. Similarly, statement of accused nos.2, 3 and 5 was recorded on 23-1-1987, 24-1-1987 and 24-1-1987, respectively. 6. According to prosecution, all statements were voluntary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she is unable to explain where the accused were kept from 22-1-1987 to 24-1-1987 when their statements were being recorded. Ms Mane is unable to state whether those accused were allowed to go and come back, move around easily or they were kept in the office of the customs authorities. 10. The Learned Magistrate after considering the evidence and despite the fact that the panchas were not produced and panchnama recorded on 22-1-1987 and 17-2-1987, have not been proved, still passed the order of conviction relying on the statements recorded under Section 108 of the Customs Act. The Additional Sessions Judge while setting aside the order of the Learned Magistrate, has considered the validity of the statement recorded under Section 108. The Sessions court has held that the statements recorded under Section 108 have not been independently corroborated. The Sessions Court held that without an independent corroboration or without any evidence, the statements recorded of the accused under section 108 has no evidentiary value, more so, when there has been a retraction. I am in agreement with the conclusion arrived at by the Learned Sessions Judge. The Learned Sessions Judge has de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987 till 24-1-1987. There is no explanation whatsoever as to why, when the gold allegedly found on 22/23-1-1987 on board the said vessel, the accused were not immediately arrested and why were they not immediately produced on 23/24-1-1987 before the Magistrate. In my view, detention of the accused by the customs authorities upto 25-1-1987, is in clear violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. Therefore, for reasons stated above, I cannot accept that the statement of accused recorded under Section 108 was voluntary or absolutely truthful. 12. Various courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I find support in State of Maharashtra Vs. Harshad Vaherbhai Patel Ors. 2012(1) Bom.C.R.(Cri)500 and unreported judgment of this court in Shri Malki Singh Vs. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh s judgment reads as under: 8. It is no doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submit that customs officers are not police officers and the statement recorded under Section 108 of the Customs Act 1962, is admissible in evidence. I have to be candid that I have no quarrels with the preposition submitted by Ms Mane. The issue is, Can that statement be accepted blindly without corroboration, and the answer is no. 15. The fact is that the accused were kept in the custody of the customs authorities when the statements were recorded. The accused were arrested only in the evening of 24-1-1987 and produced before the Magistrate on 25-1-1987. As noted earlier, the detention, in my view, was not legal. Therefore, it will be reasonable to assume that there was coercion or undue pressure exerted on the accused to make the confession. 16. The Apex Court in Chandrappa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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