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TMI Blog1983 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ms took statements of six persons. They are M. Abdulla Kunhi, (recorded on 19-2-1974), M.M. Tajuddin (recorded on 19-2-1974). Mammed (recorded on 25-6-1974), Thoruvath Kasmi (recorded on 11-2-1974), Abdul Khader (recorded on 2-7-1974). Each of them stated that the smuggled goods contained in the fifteen bundles were landed ashore from vessels and stored by them at the instance and on behalf of the petitioner. Ext. P4 and P5 are two letters recovered from the house of Abdulla Kunhi on 12-2-1974 as per Ext. R1 (c) mahazar. In these letters there is no direct reference to the petitioner. But they contain certain code words which the officers have not been able to decipher, but which they suspect to contain reference to the clandestine activities involving the petitioner and the six persons from whom statements were obtained. A statement (Ext. P1) was taken from the petitioner himself on 19-3-1974. This statement which was recorded in the course of investigation by the officers shows that the statement made by Theruvath Kasmi on 11-2-1974 implicating the petitioner had been specifically put to the petitioner. The only explanation which the petitioner had to offer when he was confronted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner denied his involvement in the activities of the six persons was when he sent his reply to the show cause notice on 13-8-1974 which was about five months after he gave Ext. P1 statement. A formal enquiry was conducted by the Collector of Customs in September, 1975. All the six persons who had in their statements implicated the petitioner as well as the petitioner himself were present at the enquiry. These persons were in possession of copies of all the materials relied on by the officers including the statements made prior to the enquiry. With the exception of Tajuddin all the other five persons, who implicated the petitioner, admitted their signatures, but stated that they were not responsible for the statements as they were recorded under threat. Tajuddin denied having put his signature to any statement. Apart from these persons, the two customs officers, Sreedharan and M.J. Mathai, who had recorded the statements of the six persons were examined on the side of the department. The petitioner's counsel was present throughout the enquiry and cross-examined the officers of the department as well as the other six persons. in his cross-examination the petitioner's counsel di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined on the point by the adjudicating officer they stated that it was under pressure and threat that they put their signatures. Nevertheless, as stated earlier, the petitioner's counsel did not cross-examine them on the point or elicit from them any information as to the persons who administered the threat. Nor did he cross-examine the two officers as regards the alleged threat or duress. 4. In Ext. P6 and 3rd respondent relies upon the statements made by the co-accused to come to a conclusion against the petitioner. The petitioner's counsel Sri K. Kunhirama Menon submits that the testimony of the co-accused is not substantive evidence. That evidence could not have been relied upon by the officers except for the purpose of assuring themselves as to the reliability of any substantive evidence that was available against the petitioner. he refers to the principle stated by the Supreme Court in Haricharan Kurmi v. State of Bihar (A.I.R. 1964 S.C. 1184) as regards the value of retracted confession of a co-accused. Counsel submits that, although the strict requirement of criminal proceedings are not applicable to proceedings before an Administrator in the exercise of his judicial or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing principle in regard to judicial or quasi-judicial proceedings before an administrator : "........ the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party........" The petitioner was given copies of statements of the co-accused. They had not retracted from their statements until they said in their reply to the show cause notice that they signed the statements under pressure. In the case of Abdulla Kunhi, his reply to the show cause notice was sent on 9-8-1974, whereas his statement had been recorded as early as 19-2-1974. The same was the case with Tajuddin. Theruvath Kasmi replied to the show cause notice on 10-8-1974 whereas his statement had been recorded on 11-2-1974. For nearly six months these persons, who apparently had obtained legal advice in the meantime, failed to retract in any manner from the statements made by them. As stated by the Supreme Court in A.I.R. 1968 S.C. 832, such retraction has little value. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains; (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when he person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." The respondents' Counsel, Shri P. Santhalingam submits that the fact that a statement made and signed by a person is relevant for the purpose of clause (b) makes it equally relevant for the purpose of confronting a person when exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. Section 139 leaves no doubt that a court shall presume, unless the contrary is proved, that the signature of the maker is genuine and every other part of the document is equally genuine. This is the principle on which the court must act. Section 139 does not exclude the applicability of this principle in proceedings before an administrator. If it is open to a court to draw the statutory presumption, it is equally open to an administrator in proceedings of this kind to draw a like presumption and conclude, in the absence of evidence to the contrary, that every word contained in the statement and the signature appearing on the face of it are those of the maker. This being the position in law, the respondents were entitled to rely upon every word in the statements signed by the witnesses, notwithstanding their attempt to retract therefrom, especially when there is no evidence of threat. As stated earlier, counsel for the petitioner made no attempt to elicit any such information from the officers or from the co-accused themselves. In R.S. Kalyanaraman v. Collector of Customs, Madras (1978 Tax L.R. 1735) the Madras High Court repelled the contention that the confession of a co- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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