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TMI Blog1998 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... veillance on the Grant Trunk Road at Parhau, District Varanasi, awaiting arrival of the Truck No. WMH 4911. It was brought to the notice of the DRI officers that the truck in question was detained on that date in the trade tax check-post at Naubatpur and the officers rushed to the check-post, contacted the trade tax authorities and took the truck in their custody along with the papers produced by the driver. The materials, as indicated above, were seized but despite chances being given the owner, driver or cleaner of the truck did not come forward to claim ownership of the truck or the goods so seized. It was alleged that the aforesaid Chinese silk yarn was found concealed under metal scrap in the concerned truck. 3.The complainant further stated that there were grounds for reasonable belief that the silk yarn were of foreign origin and were smuggled into India from Nepal in contravention of notifications under Section 11 of the Act and, as such, the materials were liable to confiscation. An enquiry/investigation was taken up by the Customs Officials and the involvement of the accused persons named in the complaint came to light. The truck in question stood registered in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act speaks of evasion of customs duty and prescribes punishment thereof. Under this section, if any person is, in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt of any evasion of any duty chargeable thereon, acquires possession of or is in any way concerned with carrying, removing etc. or dealing with any goods which he knows or has reason to believe are liable to confiscation, would be punishable under this section. Section 111 speaks of confiscation of improperly imported goods. In the instant case, there is no defence that the Chinese silk yarn found in the truck was not of foreign origin or were properly imported into India. 7.Reference has been made in the complaint to Sections 107 and 108 of the Act. Section 108 speaks of power to summon persons to give evidence and to produce documents. The statements of different persons, as indicated in the complaint, were taken in exercise of powers under this Act. Section 107 speaks of power of an officer of the customs to require any person to produce a document and to examine any person acquainted with the facts and circumstances of the case. The learned State Counsel submitted that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 171A of the Sea Customs Act was not a person accused of any offence. The court was of the view that the statements under Sections 107 and 108 of the Customs Act were not statements by a person accused of any offence. The court was of the view that these statements are not hit by Article 20(3) of the Constitution of India and because those were not statements by an accused of any offence and because the statements were made to an officer who was not a police officer, Section 25 of the Evidence Act would not be a bar to the admissibility of such statements. Section 25 of the Evidence Act simply states that no confession made to a police officer shall be proved against a person accused of any offence. The statements in this case were sought to be proved against the makers thereof. 10.The decision in AIR 1972 SC 1224 was again a case from Bombay High Court and the prosecution was in respect of Foreign Exchange Regulation Act. The appellant in this case was found present on the back seat of the car from the dicky of which gold was recovered. There was evidence to the effect that the said car, before the recovery of the gold, was brought at an odd hour of 2 a.m. and taken on the k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement would be admissible but the question is not of mere admissibility or mere absence of bar under Section 25 of the Evidence Act, the real question relates to a proper interpretation of Section 30 of the Evidence Act. Section 30 is quoted below in toto : Consideration of proved confession affecting person making"30. it and others jointly under trial for the same offence. :- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such person is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation. - 'Offence', as used in this section includes the abatement of or attempt to commit the offence." 12.It was stated that this confession of a co-accused, even if proved, cannot be the basis of a conviction and although it is evidence in the generic sense, it is not evidence in the specific sense and it could afford corroboration to other evidence and cannot be the supporting point or the sole basis of the conviction. In respect, reference could be made to a decision of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h statement was not required to be given on oath nor in the presence of the accused and it could not be tested by cross-examination. It was a much weaker type of evidence than the evidence of an approver which was not subject to any of those infirmities. Section 30, however, provided that the court might take into consideration the confession and thereby no doubt made it evidence on which court could act, but the section did not say that the confession was to amount to proof. Clearly, there must be other evidence and confession was only one element in the consideration of all the facts proved in the case, which can be put into the scale and weighed with other evidence. Their Lordships confirmed the view that the confession of an co-accused could be used only in support of the evidence and could not be made a foundation of a conviction. 15. The case before the Supreme Court, as reported in AIR 1957 SC at page 381 was also of murder. It was a case in which corpus delecti was not traceable and proof of murder solely depended on a retracted confession of an accused. The court was of the view that although corpus delecti was not found, there could be a conviction if reliable evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trial, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals". 17.The question that actually arises in the instant case is not on the point of admissibility of a statement made to a Customs official notwithstanding the bar of Section 25 of the Evidence Act. It is really the question of use of that confession against a co-accused and this use is permissible for a limited purpose only as per Section 30 of the Evidence Act. What is the scope of Section 30 has clearly been explained in the decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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