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convict the accused, then I ask myself why should they even take any panch wit-
ness and why should anyone go through the trouble of recording of panchnama
and producing the panch witness at the time of trial. Moreover, if I have to simp-
ly accept the statement recorded under Section 108 as gospel truth and without
any corroboration, I ask myself another question, as to why should anyone then
go through a trial. The moment the customs authorities recorded the statement
under Section 108, in which the accused has confessed about his involvement in
carrying contraband gold, the accused could be straightaway sent to jail without
the Trial Court having recorded any evidence or conducting a trial. First of all, all
the statements have been recorded in English. The accused have stated that they
do not read or write English. The statements do not state why the accused were
not asked to write their statements in their handwriting in the language they
knew. The statements do not mention anywhere that the accused stated that they
could not write and hence it was written by one of the customs officer. There is
an endorsement by P.W.-3 that it was read over and explained to the accused and
they have signed after understanding and agreeing with the statement. But the
fact which has to be kept in mind is, the accused were with the customs authori-
ties from 22-1-1987 night till 25-1-1987 morning, when they were produced be-
fore the Magistrate and remanded to judicial custody. Ms. Mane states that after
recording of statements, the accused were arrested and kept in police lock and
then produced before the Magistrate on 25-1-1987. But the indisputable fact is the
accused were with the customs authorities and on the very first opportunity on
27-1-1987, they have retracted the confession recorded. Ms. Mane has not pro-
duced any law to justify the action of the customs authorities to keep the accused
with them from 22-1-1987 till 24-1-1987. There is no explanation whatsoever as to
why, when the gold allegedly found on 22/23-1-1987 on board the said vessel,
the accused were not immediately arrested and why were they not immediately
produced on 23/24-1-1987 before the Magistrate. In my view, detention of the
accused by the customs authorities upto 25-1-1987, is in clear violation of the
fundamental rights guaranteed under Articles 21 and 22 of the Constitution of
India. Therefore, for reasons stated above, I cannot accept that the statement of
accused recorded under Section 108 was voluntary or absolutely truthful.
12. Various courts have kept all these things in mind and come to a
conclusion that in the absence of any corroboration by an independent and relia-
ble witness, a statement recorded under Section 108 in isolation could not be re-
lied upon. For this, I find support in State of Maharashtra v. Harshad Vaherbhai Pa-
tel & Ors. [2012 (1) Bom. C.R. (Cri) 500] and unreported judgment of this court in
Shri Malki Singh v. Suresh Kumar Himatlal Parmar in Criminal Appeal No. 228 of
1999 delivered on 29-11-2019 [since reported in 2020 (371) E.L.T. 642 (Bom.)].
Paragraph 8 of Malki Singh’s judgment reads as under :
“8. It is no doubt true that under Section 104 of the Customs Act, 1962, the
Customs Officer is vested with power to arrest if he has reason to believe
that any person has committed an offence punishable under Section 135 or
135A of the Customs Act. Under Section 108 of the Customs Act, the Cus-
toms Officer is also vested with power to summon persons to give evidence
documents and all persons so summoned are bound to attend, on being
summoned. The statement made to the Customs Officer is not hit by Sec-
tion 25 of the Indian Evidence Act, 1872, the position of law being very well
settled that the Customs Officers are not police officers and resultantly, a
statement made to the Customs Officer is not hit by Section 25. At the same
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