Page 141 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] ASSISTANT COLLECTOR OF CUS. (PREVENTIVE), BOMBAY v. HASANALI RUMI 531

time, the position of a retracted confession is also well settled :- without any
independent corroboration it cannot sustain a conviction and retracted con-
fession may form basis of conviction without corroboration if it is found to
be perfectly voluntary true and trustworthy The Court is duty bound to ex-
amine whether the statement referred to as a confessional statement meets
the test of truthfulness and being voluntary in nature. In absence of any in-
dependent material brought on record by the appellant, the Chief Metro-
politan Magistrate was perfectly justified in acquitting the accused No. 2. In
absence of any evidence corroborating the statement of the accused No. 2
made before the Customs Officer on 24th March, 1996 under Section 108 of
the Customs Act, the statement in isolation do not warrant conviction, par-
ticularly when it is retracted with a plea of coercion.”
13. The Learned APP for Respondent No. 6 Ms. Dabholkar relies on a
judgment of the Apex Court in Shah Guman Mal v. State of Andhra Pradesh [AIR
1980 Supreme Court 793 = 1983 (13) E.L.T. 1631 (S.C.)] to submit that under Sec-
tion 106 of the Evidence Act, when the gold has been found on the board the said
vessel, the onus is on the accused to explain or to prove how the contraband
goods found its way on board the said vessel. That may be the legal position. But
the fact is, has it been proved that gold and the contraband goods were found on
board the said vessel when the panch witnesses have not been produced and the
seizure panchnama not having been proved. My answer will be No.
14. Ms. Mane relied on the judgment of the Apex Court in Ramesh
Chandra v. State of West Bengal [AIR 1970 Supreme Court 940 = 1999 (110) E.L.T.
324 (S.C.)] to submit that customs officers are not police officers and the state-
ment recorded under Section 108 of the Customs Act, 1962, is admissible in evi-
dence. I have to be candid that I have no quarrels with the preposition submitted
by Ms. Mane. The issue is, can that statement be accepted blindly without cor-
roboration, and the answer is no.
15. The fact is that the accused were kept in the custody of the Customs
authorities when the statements were recorded. The accused were arrested only
in the evening of 24-1-1987 and produced before the Magistrate on 25-1-1987. As
noted earlier, the detention, in my view, was not legal. Therefore, it will be rea-
sonable to assume that there was coercion or undue pressure exerted on the ac-
cused to make the confession.
16. The Apex Court in Chandrappa & Ors. v. State of Karnataka [(2007) 4
SCC 415] in Paragraph 42 has laid down the general principles regarding powers
of the Appellate Court while dealing with an appeal against an order of acquittal.
Paragraph 42 reads as under :
“42. From the above decisions, in our considered view, the following gen-
eral principles regarding powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is found-
ed;
(2) The Code of Criminal Procedure, 1973 puts no limitation, re-
striction or condition on exercise of such power and an appellate
Court on the evidence before it may reach its own conclusion, both
on questions of fact and of law;
(3) Various expressions, such as, ‘substantial and compelling rea-
EXCISE LAW TIMES  15th May 2020  141