Page 139 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] ASSISTANT COLLECTOR OF CUS. (PREVENTIVE), BOMBAY v. HASANALI RUMI 529

7. After the completion of investigation the papers were processed,
sanction was obtained and complaint is filed. The prosecution examined three
witnesses, i.e., Anilkumar Tak, a Preventive Officer of Customs, Bombay
(P.W.-1), Girdhari Arjun Sahoo, a Preventive Officer of Customs Bombay (P.W.-
2) and T. S. Jairaman, Superintendent of Customs, Bombay (P.W.-3). P.W.-1 was
the officer who boarded the said vessel on 22-1-1987, when the gold was recov-
ered. P.W.-2 is the officer, who boarded the said vessel on 16-2-1987 and found
the contraband goods. P.W.-3 is the officer, who speaks of recording of the
statements of various accused persons.
8. In the statements recorded under Section 108 of the Customs Act, it
is allegedly stated that accused including original Accused No. 4 are the only
persons who are involved in carrying gold and the contraband goods and, there-
fore, the customs have proceeded to prosecute only these 5 persons and not the
rest of the crew. The vessel had a complement of 20.
9. On 25-1-1987 accused were produced before the Magistrate and were
remanded to judicial custody till 10-2-1987. On 27-1-1987, the accused filed, along
with their bail applications, their statements of retraction. The retraction state-
ment states that the accused never admitted in their statement recorded under
Section 108 of Customs Act, that they had knowledge or that they have assisted
in concealing the gold in the cavities of wooden plank. It is also stated that ac-
cused No. 1 never admitted that he was to get Rs. 300/- per bar and he has not
given the name of any of the party in Dubai or in Bombay. Accused have stated
that the statements were not voluntary and were obtained under duress and
hence not admissible. It has to be noted that on 22-1-1987, 23-1-1987, 24-1-1987
and until the accused were produced before the Magistrate, the accused were in
the custody of the Customs authorities. Ms. Mane states that the accused were
arrested and produced on 25-1-1987, but she is unable to explain where the ac-
cused were kept from 22-1-1987 to 24-1-1987 when their statements were being
recorded. Ms. Mane is unable to state whether those accused were allowed to go
and come back, move around easily or they were kept in the office of the customs
authorities.
10. The Learned Magistrate after considering the evidence and despite
the fact that the panchas were not produced and panchnama recorded on 22-1-
1987 and 17-2-1987, have not been proved, still passed the order of conviction
relying on the statements recorded under Section 108 of the Customs Act. The
Additional Sessions Judge while setting aside the order of the Learned Magis-
trate, has considered the validity of the statement recorded under Section 108.
The Sessions Court has held that the statements recorded under Section 108 have
not been independently corroborated. The Sessions Court held that without an
independent corroboration or without any evidence, the statements recorded of
the accused under Section 108 has no evidentiary value, more so, when there has
been a retraction. I am in agreement with the conclusion arrived at by the
Learned Sessions Judge. The Learned Sessions Judge has dealt with various as-
pects, which for the sake of brevity, I am not repeating.
11. Admittedly, panch witness of the panchnama recorded on 22-1-
1987 when the gold was seized and the panch witness of the panchnama which
was recorded on 17-2-1987, when the said contraband goods were seized, have
not testified. If I have to accept the submission of Ms. Mane that dehors the pan-
chnama, in view of the confession recorded under Section 108, the Court can still
EXCISE LAW TIMES  15th May 2020  139