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TMI Blog2023 (12) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it - For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it. Viewed in the above perspective, the contents of Ext. D1 cannot be said to have been proved. Hence, Ext. D1 cannot be treated as a retraction of the statement given under section 108 of the Act. Can the statement given by the accused under section 108 of the Act, produced as Ext. P8, Ext. P8(a) and Ext. P8(b) be relied upon? - HELD THAT:- The initial burden to prove that a statement given under section 108 of the Act was voluntary is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the impugned judgment cannot be said to be perverse or impossible. The judgment of acquittal of the accused on the files of the Additional Chief Judicial Magistrate (EO), Ernakulam, needs no interference - Appeal dismissed. - HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS For the Appellant : By Advs. P. Vijayakumar, Manu S. ASG of India, Sri. Suvin R. Menon, CGC For the Respondents : By Advs. Sri. Sajeev Kumar M.S, Smt. Lakshmi S Kumar, Smt. A.N. Jyothilekshmi BECHU KURIAN THOMAS, J. JUDGMENT An Irish citizen was found in possession of ten gold bars at the Cochin International Airport on 13.07.2015. He was soon indicted for smuggling gold and prosecuted in C.C. No. 411/2016 before the Additional Chief Judicial Magistrate (EO), Ernakulam. By judgment dated 26.03.2019, the learned Additional Chief Judicial Magistrate acquitted the accused. Hence, this appeal. 2. The prosecution was initiated based upon a complaint filed by the Assistant Commissioner of Customs, alleging offences punishable under sections 132 and 135 of the Customs Act, 1962 (for short 'the Act'). 3. The prosecution case was that the accused arrived at Cochin I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of a document, it was argued that the Ext. D1 was merely marked without any person being examined. The learned counsel referred to various decisions in support of the above proposition. It was further argued that the admission of the accused in the statement under section 313 of Cr.P.C that he had brought the gold bars to India itself is sufficient to prove the act of smuggling and, therefore, the burden was entirely upon the accused to prove that he had not committed the offence. Numerous decisions were referred to in support of his contentions. 7. Sri. Sajeev Kumar M.S., the learned counsel for the accused, also, with thorough preparation, argued that the entire prosecution story was fabricated and the acquittal of the accused ought to be sustained. It was also submitted that apart from the statement under section 108 of the Act having been retracted as evident from Ext. D1 and the bail applications that were filed by the accused at the initial stage, there were serious contradictions and inconsistencies in the prosecution case that justified the acquittal of the accused. It was also submitted that the prosecution never questioned the marking or admissibility of Ext. D1 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments earlier given by him under section 108 of the Act. Ext. D1 was allegedly handed over to the Jail Authorities while the accused was in custody. The said document was produced pursuant to a summons followed by a warrant issued by the court to the Jail Superintendent for the production of the document. Though Ext. D1 was not marked either through the accused or through any Jail Officer, it was produced from the custody of the Jail Superintendent. It is relevant to observe that Rule 62 of the Criminal Rules of Practice, 1982 deals with the marking of exhibits. Rule 62(ii) and 62(iii) mandate that exhibits admitted in evidence shall be marked in a particular manner. Rule 62(ii) states that documents if filed by the defence has to be with capital letter D followed by a numeral D1, D2, D3 etc and Rule 62(iii) states that if court exhibits, be marked with capital letter C followed by a numeral C1, C2 and C3 etc. 11. In the instant case, Ext. D1 has not been marked through any witness, and therefore, it can only be a court exhibit. It was summoned from the Jail Authorities. The said document should not have been marked as Ext. D1 but as Ext. C1. However, the nomenclature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the accused were called upon to admit or deny the genuineness of the document after giving a list of such documents to be denied or admitted. If the genuineness is not disputed after such an opportunity, then the document can be read in evidence without proof of signature. Even then, at its discretion, the Court can require the signature to be proved, as seen from the proviso to Section 294(3). The normal rule is that a document cannot be read in evidence without formal proof. Section 294 is an exception carved out of the normal rule. Therefore, for extending the concept under the provision, the conditions stipulated therein must be satisfied strictly. The crucial requirement under section 294 Cr.P.C is that an explicit endorsement of admission or denial of the document is taken after calling the opposite side's attention to the document. Reference to the Full Bench judgment of Bombay High Court in Shaikh Farid Hussainsab v. State of Maharashtra [1983 Cri LJ 487] and that of the Patna High Court in Shyam Narayan Singh and Others v. State of Bihar [1993 Cri LJ 772] are relevant in this context. 16. In the decision in Shamsher Singh Verma v. State of Haryana [(2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer (General manager) and Another v. P.Anil Kumar (2021 (1) KLJ 923) has dealt with the mode in which a document can be proved in evidence. Reference to the decision in Narbada Devi Gupta v. Birendra Kumar Jaiswal and Another [(2003) 8 SCC 745] and the recent decision in Harendra Rai v. State of Bihar (2023 INSC 738) are also relevant. The observation in Harendra Rai s case (supra) is apposite and is hence extracted as below; At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Issue No. (ii). Can the statements given by the accused under section 108 of the Act produced as Ext. P8, Ext. P8(a) and Ext. P8(b) be relied upon? 22. The initial burden to prove that a statement given under section 108 of the Act was voluntary is on the prosecution. Even if such a statement has not been retracted, the prosecution still has the burden to prove that the accused made the statement voluntarily. The observation of the Bombay High Court in Union of India v. Kisan Ratan Singh and Others [2020 SCC OnLine Bom 39] is relevant. It was reiterated that without any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. The following observations are relevant: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the passport number of a third person named Tharique and even the mobile numbers of two other persons. The possibility of the statements being given under the dictation of another person cannot be fully ousted. Further, the excel sheets of printouts attached along with the statements are admittedly taken through the computer system available in the office of the Customs Department. The signatures on the printouts are seen affixed in a manner which does not inspire the Court to believe that they were affixed before the papers had any entries on them. The printouts on the various papers are in portrait mode, while the signatures are affixed as if the printouts were taken in landscape mode. The possibility of those signatures obtained without any print on it cannot thus be ignored. The cumulative effect of the above suspicious circumstances is that it creates doubt on the veracity of the statements allegedly given by the accused under section 108 of the Act. 26. Apart from the above, two specific questions were put to PW9, the Commissioner of Customs, during his evidence. Those questions were: While perusing the records, did you see the bail application filed by the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be regarded as substantive evidence. Reference to the decisions in Vijendrajit Ayodhya Prasad Goel v. State of Bombay (AIR 1953 SC 247) and Ashok Kumar v. State of Haryana [(2010) 12 SCC 350] are relevant in this context. At the most, the statement can be taken only as an aid to lend assurance to the prosecution evidence as held in Mohammed Firoz v. State of Madhya Pradesh [(2022) 7 SCC 443]. Issue No. (iv). Does the judgment of acquittal of the accused warrant any interference? 29. The evidence of the prosecution witnesses indicates various inconsistencies and contradictions between them. Though few of the inconsistencies are inconsequential, some are substantial. Smuggling takes place when the Customs area is crossed without paying duty. Reference to section 2(10) and section 2(11) of the Act are relevant. PW1, PW6 and PW7 deposed that the accused was intercepted after he crossed the Green Channel. PW10, however, contradicts the above witnesses and deposed that the accused was intercepted at the baggage hall. This creates doubt about the place where the accused was intercepted. Failure of the prosecution to produce in evidence the CCTV footage of the airport are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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