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TMI Blog2000 (6) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... m Fort Market, Bombay whose details they could not furnish. They further stated that they were asked to wait near Aryanivas lodge where some persons would pick up the gold from them. The Officers seized the gold biscuits. They also recorded the statements of A2 and A4 under Section 108 of the Customs Act (hereinafter called 'the Act') on 27-7-1987 and 28-7-1987 respectively. 3.It is stated that the investigation disclosed that A3 was acquiring clandestinely foreign marked gold biscuits and he was having dealings with A1, who is a gold dealer, and in pursuance of their understanding A3 sent 10 gold biscuits on 17-7-1987 through A2 and A4, which was delivered to A1. Again on 27-7-1987 A3 sent 10 gold biscuits, which were seized by them. On the basis of these allegations in the complaint the learned Special Judge for Economic Offences, Hyderabad has taken the case on file as C.C. No. 3 of 1997. The trial was taken up and Pws 1 to 5 were examined and Exs. P1 to P12 were marked. At this stage, before framing charges, the petitioners herein filed an application for discharge on various grounds. The learned Special Judge dismissed that application on 9-2-2000. 4.It is stated that adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher than the original penalty which has been appealed against and in which appeal the matter was directed to be remanded. There is some substance in this contention. Para 4 of the order of the CEGAT passed in appeal C/865/98 dated 19-3-1995 may be extracted. "The short point to be decided is as to whether higher penalty can be imposed in remand proceedings. It is well settled law that in remand proceedings a greater burden cannot be placed upon the person than the one, which was already placed in the original order prior to remand. Having regard to this legal position I find substance in the learned Counsel's submission that the remand order is bad in law, since it imposes a penalty of Rs. 3,00,000/- while the original order of 1990 imposed penalties of Rs. 15,000-00 each under the Customs Act and Gold (Control) Act. In view of the above, I set aside the impugned order and allow the appeal". 8.Thus, it is obvious that what the appellate Tribunal held was that the primary authority's imposition of a penalty of Rs. 3,00,000.00 as against the penalty of Rs. 15,000/- originally imposed is illegal. By no stretch of imagination can it be said that the appellate authority found o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of process of law if the proceedings are continued. 11. The learned Standing Counsel for the respondent Shri Gopala Krishna counters this contention by pointing out that a statement recorded under Section 108 of the Customs Act is not hit either by Section 25 or Section 26 of the Evidence Act and is a perfectly admissible piece of evidence for proving an offence under Section 135 of the Customs Act. The ld. counsel cites the judgment of the Supreme Court in the case of K.I. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate - 1997 (90) E.L.T. 241 (S.C.) = (1997) 3 SCC 721 in support of his contention. The fact that a person suspected of an offence under Section 135 of the Customs Act whose statement is recorded under Section 108 of the said Act does not acquire character of an accused at that stage and that a customs officer is not a police officer and that a statement recorded by a customs officer of that person is under statutory compulsion and such statement if voluntarily offered by the said person is admissible in evidence is beyond any pale of controversy or doubt and the decision cited by the learned counsel above referred vouchsafes for this position of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was rendered with reference to the confessions recorded under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA Act) and whereas in the present case, the statements were recorded under Section 108 of the Customs Act. This difference in facts in no way has any bearing as to the law laid down by the Supreme Court on the question of admissibility of a confession as against co-accused under Section 30 of the Evidence Act. 16.Section 15 of the TADA Act in fact enacts an exception to the general rule laid down under Section 25 of the Evidence Act under which a confessional statement made to a police officer has been declared as inadmissible in evidence. Section 15 of the TADA Act removes this disability and confessional statement recorded by an officer of rank of Superintendent of Police has been rendered admissible in evidence. In this case, as noted above, there is no controversy as to the admissibility of the statement of an accused recorded under Section 108 of the Customs Act. Just as a statement recorded under Section 108 of the Customs Act is admissible in evidence, a statement of an accused recorded by the Superintendent of Police unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence has been collected during the investigation except the statement of A2 and A4 to the above effect. In view of the law laid down by the Supreme Court, it is obvious that a confession as against co-accused is only of a limited use i.e., the same can be 'taken into consideration' as against the co-accused. It has been held as stated above that the confession made by one accused is not substantive evidence against co-accused and that it has only a corroborative value. When the confessional statement of co-accused is the only piece of evidence which prosecution seeks to rely upon and the complaint does not disclose any other piece of evidence, which can be considered as a substantive in nature or any piece of evidence which .can even be used for corroboration of the confessional statement of the co-accused, then the result is that there is no substantive evidence incriminating the accused which is available with the prosecution. The real position is that the confession of a co-accused can be pressed into service only for lending assurance to other evidence brought on record by the prosecution against the accused. Thus, the confession of co-accused cannot constitute the sole basi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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