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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 ..... shable under Section 135(1)(a) (i) of the Customs Act 1962, read with Section 67 of the Foreign Exchange Regulation Act, read with Section 11 of the Customs Act, read with Section 77 of the Customs Act 1962, read with Section 135(1)(b)(i), read with Section 5a of the Imports and Exports (Control) 1947. The Learned Magistrate had sentenced the accused for various terms of rigorous imprisonment and fine. 3. The case of the prosecution in brief is that on 22-1-1987, on information received, the customs officers went to Hay Bunder in Mumbai port and noticed a country craft, which was anchored there and boarded the said country craft. The name of the country craft is M. V. Mamun (the said vessel). There were 20 crew members which include the accused as well. Accused no.1 was the Tandel of the said vessel. The officers had also taken with them two panch witnesses and in the presence of those panch witnesses, searched the vessel. During the search, the officers found that there were cavities in the planks at different places in the vessel and there were 14 cloth belts and 8 brown paper packets concealed in those cavities and when those 14 cloth belts and 8 brown paper packets were opened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely proceed on the basis that all 750 bars were of gold weighing 10 tolas each. 7. After the completion of investigation the papers were processed, sanction was obtained and complaint is filed. The prosecution examined three witnesses, i.e., Anilkumar Tak, a Preventive Officer of Customs, Bombay (P.W.-1), Girdhari Arjun Sahoo, a Preventive Officer of Customs Bombay (P.W.-2) and T. S. Jairaman, Superintendent of Customs, Bombay (P.W.-3). P.W.-1 was the officer who boarded the said vessel on 22-1-1987, when the gold was recovered. P.W.-2 is the officer, who boarded the said vessel on 16-2-1987 and found the contraband goods. P.W.-3 is the officer, who speaks of recording of the statements of various accused persons. 8. In the statements recorded under Section 108 of the Customs Act, it is allegedly stated that accused including original accused no.4 are the only persons who are involved in carrying gold and the contraband goods and, therefore, the customs have proceeded to prosecute only these 5 persons and not the rest of the crew. The vessel had a complement of 20. 9. On 25-1-1987 accused were produced before the Magistrate and were remanded to judicial custody till 10-2-1987. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Ms Mane that dehors the panchnama, in view of the confession recorded under Section 108, the court can still convict the accused, then I ask myself why should they even take any panch witness and why should any one go through the trouble of recording of panchnama and producing the panch witness at the time of trial. Moreover, if I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the customs authorities recorded the statement under section 108, in which the accused has confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial. First of all, all the statements have been recorded in English. The accused have stated that they do not read or write English. The statements do not state why the accused were not asked to write their statements in their handwriting in the language they knew. The statements do not mention anywhere that the accused stated that they could not write and hence it was written by one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned are bound to attend, on being summoned. The statement made to the Custom Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Custom Officers are not police officers and resultantly, a statement made to the Custom Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled:- without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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