Page 183 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] UNION OF INDIA v. KISAN RATAN SINGH 717

absence of panch witnesses.
6. I have to note very importantly that on 11th February, 1991 respond-
ents filed an application before the Learned Metropolitan Magistrate for retract-
ing the statements recorded. Their case has also been stated in the statement of
retraction and it is very clearly stated that there were three others who were in
the room. In the evidence, PW-1 and PW-2 are totally silent about these three
persons. In response filed to the application of retraction, M.K. Chakraborty, who
was listed as the first witness in the chargesheet and who was not called to give
evidence, has categorically stated that there were three other persons. In the re-
traction, the respondents have stated that they went to the room and they found
three persons inside the room but in response to the retraction, M.K.
Chakraborty says “for the statement of other three persons, who were found loi-
tering in the passage adjacent to the said room ……….”. I would say this is a
mischievous statement because the respondents in their retraction stated the
three persons were found in the room and have not stated that three persons
were found loitering. As regards the three persons, M.K. Chakraborty then says
that these three persons were brought to the office of DRI on suspicion and their
statements have been recorded but they denied having any connection with the
seized gold and seized currency and they were permitted to go. Those statements
have not been produced. The retraction and the response are at Exhibit D-l and
D-2, respectively. It has to be noted that in the panchnama recorded at the time
of raid, there is no mention of these three persons. Even the remand application
dated 5th February, 1991 does not mention about these three persons were taken
into custody and that their statement was recorded.
On 5th February, 1991 when respondents were produced for remand and
jail custody was granted till 11th February, 1991, respondents were not repre-
sented by any advocate and it does not look like they were provided any legal
assistance either. On 11th February, 1991, when accused were produced before
the Magistrate and when accused also filed an application for bail, the retraction
has been filed. Therefore, on the first opportunity respondents filed retraction.
7. According to prosecution, the statements of both accused were vol-
untarily and correctly recorded without use of any force or inducement. The Tri-
al Court after considering the evidence recorded and the facts and circumstances
of the case, has held that the statements recorded under Section 108 have not
been independently corroborated. The Trial Court has held that without an inde-
pendent corroboration or without any evidence the statements recorded of ac-
cused 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 Trial Court.
8. Admittedly, panch witness of the panchnama recorded on 4th Feb-
ruary, 1991, when the gold and Indian and Foreign currencies were allegedly
seized, have not testified. Even the persons, who typed the panchnama, and PW-
1 says it was one G.H. Shaikh, has not testified. Moreover, the panchnama is
written in English but the panch witnesses have signed in Hindi and Gujarati.
Panchnama also does not record whether the panch witnesses knew English.
PW-1 also says both panch witnesses are from N.M. Joshi Marg as per panchna-
ma Exhibit P-2 and that N.M. Joshi Marg was 4 to 5 km away from the said
premises. How did the panchas then land at the said premises? That is a mystery.
Therefore, I am unable to believe the panchnama as produced was really pre-
pared. To add to this, PW-2 says he does not know the details of panchnama be-
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