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TMI Blog2020 (12) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... Aga (supra) this court is of the opinion that the confessional statements so recorded under Section 108 of the Customs Act solely cannot be a foundation for arriving at the conclusion of the guilt of the accused-appellants. The prosecution has failed to prove the charges under Section 489B of the IPC - However, the accused appellants have failed to dislodge the prosecution evidence so far as the seizure of the fake currency notes from their possession are concerned. The accused appellants are acquitted of the charge under Sections 489B/34 of the IPC consequently their conviction and sentence so imposed by the Ld. Trial Court is set aside - the accused appellants are convicted under Sections 489C/34 of the IPC and their sentence so imposed by the trial court are accordingly affirmed. Appeal allowed in part. - Samapti Chatterjee And Tirthankar Ghosh, JJ. For the Appellant : Debasish Roy, Arnab Saha and Jonaki Saha. For the Respondents : Koushik Dey. DECISION TIRTHANKAR GHOSH, J. 1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 21 September, 2016 and 22 September, 2016 passed by the Ld. Additional Sessions Judge, (Essential Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by a Court of Sessions. 4. The prosecution in order to prove its case relied upon 8 witnesses and number of documents which will be dealt with separately. The Ld. Trial Court framed charges on 04.06.2014 against the 3 accused persons being the appellants herein under Section 489B read with Section 34 of the IPC, under Section 489C of the IPC and Section 135(1)(a)(i)(c) and Section 135(1)(b)(i)(c) of the Customs Act read with Section 34 of the IPC. 5. The prosecution in order to prove its case relied upon eight witnesses being PW 1, Dipankar Chatterjee, Senior Intelligence Officer, DRI; PW 2, Siddhartha Sankar Gupta, Senior Intelligence Officer, DRI, Siliguri; PW 3, Vijay J. Manvotkar, Deputy Commissioner of Central Excise (at the relevant period Deputy Director, DRI at Siliguri); PW 4, Nibedita Sengupta, Inspector of Central Excise, Berhampore; PW 5, Sudeb Sarkar, Intelligence Officer, DRI; PW 6, Prabir Kumar Bhadra, the complainant, Superintendent of Customs Preventive Unit (at the relevant time posted as Senior Intelligence Officer, DRI, Berhampur); PW 7, Tapan Pal, independent witness; and PW 8, Monojit Sen, independent witness. 6. PW 1, Dipankar Chatterjee in his evidence na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness that the accused persons were arrested pursuant to such statement and the challan was prepared (typed) by him and signed by him which was marked as Ext. 8. The forwarding letter was also marked as Ext. 9 on being proved by the witness. 8. PW 3, Vijay J. Manvotkar was a member of the raiding party and he narrated the incident in the same manner as PWs 1 and 2 in respect of the search and seizure, place of occurrence, the quantum of seizure, the denomination of the FICN and the persons from whom such seizure was effected. Additionally the witness also identified the bag which was used by the lady accused for carrying the FICN which was marked as MAT Ext. I. The witness also identified the white pair of shoes which according to him were worn by the accused Umesh Sha and the same being identified and marked as MAT Ext. II. The witness also identified the white cotton vest of accused Umesh Sha which was marked as MAT Ext. III. The three mobile phones, which were seized and identified by this witness in Court and the same was marked as MAT Ext. IV. The witness identified the sealed packet in which the seized FICN was packed and sealed and the same was marked as MAT Ext. V. 9. PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Office and stated regarding the recovery of the currency notes, mobile phones from the possession of the three accused persons. This witness also identified his signature on MAT Ext. III and IV which were marked as Ext. 20. The witness also identified his signature on MAT Ext. II which was marked as Ext. 13/1. The witness also identified his signature on the envelope of MAT Ext. VI which was marked as Ext. 21. The witness also identified his signature on the label of black bag which was marked as Ext. 22. 13. PW 8, Monojit Sen alias Basab is also a public witness who also narrated the incident in the Customs Office and identified his signature on the seizure list which was marked as Ext. 11/3 series. The witness also identified his signature on the label of the black bag which was marked as Ext. 22/1. The witness also identified his signature on the MAT Ext. III and IV which were marked as Ext. 20/1. The witness also identified his signature on the envelope which contained the shoes which was marked as Ext. 13/2. The witness also identified his signature on MAT Ext. VI which was marked as Ext. 21/1. 14. Mr. Roy, Ld. Advocate appearing for the appellants submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by both the parties and intend to deal with the same in the background of the evidence so adduced before the Ld. Trial Court. The prosecution evidence which were brought on record by way of adducing eight witnesses consistently narrates regarding the version that pursuant to a source information so received a raiding party was constituted by the customs authorities and on 12-12-2013 the members of the raiding party arrived at Moregram More and after arrival of the present appellants intercepted them and expressed their intention to search on the person of each of them. It is also consistently stated by the prosecution witnesses that the accused persons/appellants herein refused to get them searched in the public place and requested for taking them to safe zone where there would be no threat to their lives. It is also seen from the evidence of the prosecution witnesses that there is no dispute regarding the special vest from which seizure of fake currency was effected from Umesh Sha, the bundle of notes which were recovered from the shoes of the same accused, the black bag which belonged to Maya Devi from where also fake currencies were seized and also in respect of the mob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundation of a conviction and can only be used in support of other evidence. In view of these remarks 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? 10. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty I.L.R. (1931) Mad. 75, where he said that such a confession can only be used to lend assurance to other evidence against a co-accused or, to put it in another way, as Reilly, J. did in re Periyaswami Moopan (1911) I.L.R. 38 Cal. 559 - the provision goes no further than this-where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us. 157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 : (2011 AIR SCW 5697) are correct in law. 158. We answer the reference by stating: (i) That the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 24. The last of the two judgments so relied upon by the Ld. Counsel for the Union of India having been overruled thus cannot be considered for arriving at a conclusion. 25. On the other hand as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made use of in any manner under Section 138B of the Customs/ct. Even otherwise such an evidence is considered to be of weak nature. 26. On an appreciation of the settled position of law, keeping in mind the background of the present case which is presently an appeal against conviction for commission of offence under Section 489B and 489C of the IPC, the following issue emerge that whether the confessional statement of the accused persons can be made foundation of their guilt. Needless to state that it is only in the statements under Section 108 of the Customs Act of the three appellants it is found that one Rahul @ Ikram @ Ikramul of village- Mojumpur, P.O.- Harchi, P.S.- Kaliachak, District- Malda was the person who obtained the notes from Bangladesh and handed over the same in presence of Chhotelal to Umesh Sha and Maya Devi. 27. Throughout the evidence there is no corroboration by any prosecution witness in respect of such evidence and there is neither any other documentary evidence to substantiate the same. Further, no materials relating to such fact was brought in evidence by the prosecution and surprisingly the petition of complaint also did not implicate the said Rahul alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would lead to circulation of notes. 18. In Black's Law Dictionary, 10th edition, p. 1725, the word 'traffic' is defined as follows:- traffic- 1. Commerce; trade; the sale or exchange of such things as merchandise, bills, and money. 2. The passing or exchange of goods of commodities from one person to another for an equivalent in goods or money. 3. People or things being transported along a route. 4. The passing to and fro of people, animals, vehicles, and vessels along a transportation route. 29. Having regard to the aforesaid proposition of law as also the evidence brought on record it can safely be concluded that the prosecution has failed to prove the charges under Section 489B of the IPC. However, the accused appellants have failed to dislodge the prosecution evidence so far as the seizure of the fake currency notes from their possession are concerned. 30. In view of the aforesaid the accused appellants are acquitted of the charge under Sections 489B/34 of the IPC consequently their conviction and sentence so imposed by the Ld. Trial Court is set aside. 31. However, the accused appellants are convicted under Sections 489C/34 of the IPC and their sentence so imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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