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TMI Blog1990 (4) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... none and in the search 32 electronic calculators of Japanese make valued at Rs. 24,450/-; a cash amount of Rs. 3,300/- and two hundies of the value of Rs. 60,000/- were found under the rear seat of the car. The complainant alleged that the said calculators were brought by accused No. 2 from Muscat on a ship "Varun Yamini" on which he was working as a Second Engineer and thereafter the accused Nos. 1 and 2 were taking the said contraband articles namely calculators outside the dock area. The said officer, therefore, seized the said calculators in the presence of two panch witnesses and panchnama Ex. A was prepared. The Superintendent of Customs Mr. Hudah was then informed and he also arrived at the gate of the dock where the said car was intercepted. Mr. Hudah P.W. 2 thereafter is alleged to have recorded the statement of accused Nos.1 and 2 and in that statement both the accused are alleged to have admitted their guilt. On completion of investigation the Assistant Collector of Customs filed a complaint in the Court of Chief Metropolitan Magistrate, Bombay. The case was ultimately tried before the learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Bombay. It appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1, who was also examined as witness by prosecution in the case and (4) statements of accused Nos. 2 and 1 recorded by Shri Hudah P.W. 2, the Superintendent under Sec. 108 of the Customs Act and there was no infirmity in the said evidence on the basis of which it could be said that the said evidence should be discarded as unreliable. He, therefore, contended that the learned Additional Sessions Judge was in error in not accepting the evidence led by prosecution and discarding the same. He also contended that the learned Additional Sessions Judge has used double standards for appreciation of evidence as he has relied on the evidence of the accused No. 1 which was in favour of the accused No. 2 and has discarded his evidence which was in favour of the prosecution. Now, really speaking there are certain admitted facts and, therefore, certain discrepancies in the evidence of Mr. Hudah, P.W. 2 which have been given some importance while appreciating the evidence of Mr. Hudah do not assume much importance. It does appear that Mr. Hudah in his deposition has stated that there was a taxi which was intercepted while in fact the prosecution's case all the while has been it was a car which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 cannot be held responsible for the offence with which he was charged. As against this on behalf of the appellant, it is contended that there is sufficient material in the form of statement of accused No. 2 recorded by P.W. 2 Mr. Hudah under Sec. 108 of the Customs Act and also in the evidence of the accused No. 1 who has been examined as prosecution witness and there is sufficient material available by way of corroboration to the statement made in the statement of accused No. 2 recorded by customs officer and, therefore, the Trial Court was justified in accepting the said evidence and concluding that the calculators were tried to be carried from the dock by both the accused Nos. 1 and 2 and it was the accused No. 2 who has brought the said calculators from abroad through the ship on which he was working. Now we have to consider as to whether the statement of the accused No. 2 which is heavily relied upon by Shri Gupte could be considered as a voluntary statement and whether it is corroborated by other witnesses. Shri Gupte very streneously tried to contend that the learned Additional Sessions Judge has discarded the statement under Sec. 108 of the Customs Act of the accused No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case another co-accused was found to be having some injuries and, therefore, there was some substance in the contention of the appellant/accused before the Supreme Court that his confessional statement was also not voluntary. It was contended that in the present case at the most what is brought on record is that some officer was slapped by another officer when the car was intercepted and this was seen by the accused Nos. 1 and 2. It was contended that there is no evidence to show that it was the customs officer who had assaulted the officer from the ship so that it could give an apprehension in the mind of the accused No. 2 that even the officers from the ship are treated in that manner by customs officers. As against this on behalf of the accused No. 2 it is tried to be contended that the accused No. 2 immediately on 16-2-1976 while retracting his statement recorded by Hudah P.W. 2 had inferred that soon after he halted he saw one officer slapped another shipping officer who had come there and he was scared and nervous and this reference could be only to the customs officer slapping the shipping officer and, therefore, the contention of Shri Gupte appearing for the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitely could be held to be actually the accused person at that stage itself. Hence the statements of these persons must be held to be of the persons who were accused of the offence and, therefore, I do not find much force in the contention tried to be raised before me in this respect. Apart from this any confessional statement which is sought to be relied upon by prosecution must be a voluntary. If it is not a voluntary one, it definitely can not be considered as sufficient to fasten the blame on the accused. Once it is established that the confessional statement relied upon by the prosecution is not a voluntary one and that it was given out of fear or fright-fulness which was the result of the act of the officer in authority then such a statement must be discarded as unreliable. 5. In the present case apart from the above infirmity there are other infirmities also in respect of the statement of the accused No. 2. It is clear from the statement that details of certain vouchers have been recorded in the statement alleged to have been given by the accused No. 2. It is clear from the evidence on record that when the accused No. 2 was replying he was not referring to any documents. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated in material aspect it can not be acted upon. As a matter of fact I am doubtful as to whether he could be examined as a prosecution witness at all. He definitely was tried jointly with the accused and, therefore, even as per the ruling reported in A.I.R. 1968 Supreme Court 938 (Laxmipat Choraria and Others v. State of Maharashtra) it would be a matter for consideration as to whether he could be considered as a competent witness. In the said case before the Supreme Court the person who had acted as a carrier in a conspiracy to smuggle gold in India, admitted her role in the statements made to the Customs Officials investigating the case under the Sea Customs Act, but instead of being included in the array of accused and sent up for trial, was examined as a witness against her former associates, Supreme Court considered the question as to whether she could be held to be a competent witness and merely because she was included in the array of accused person and she was not sent up for trial she would not become an incompetent witness. The Supreme Court also held in the said decision that she would be an accomplice and her evidence was necessary to be considered as of an accomplice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Chief Engineer had left the ship and so he could not take the signature of the Chief Engineer on the shipping bill and, therefore, he went to the ship in the evening again and at that time he met the accused No. 2 and it is at this time that the accused is alleged to have told him that he had brought some calculators from Muskat and whether he could help him to take out those calculators outside the port area i.e. the dock. The accused No. 1 further deposed that he then told accused No. 2 that he had done so before and then the accused No. 2 told him that if he would carry the calculators in his car he would pay him Rs. 25/- for each calculator, and then he agreed to do so. In the deposition he also very clearly stated that he had no talk with the accused No. 2 about the delivery of electrical items at the time of his morning visit. Similarly in his deposition he has also stated that it was only on that evening of 12-2-1976 that he had talked with accused No. 2 for removing the calculators for the first time and he saw him for the first time in the evening despite his several visits to the ship in the past. In the statement recorded by the customs officer the accused No. 1 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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