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718 EXCISE LAW TIMES [ Vol. 372

cause he was not party to panchnama. PW-2 also says PW-1 had called the panch
witnesses and they were taken from “our” office to the said premises. If that was
so, why were the panch witnesses not examined. PW-2 also says, though he was
a member of the search party, he does not remember the mode of transport that
was used to go to the said premises from their office. One can understand he
may not remember the vehicle details but “mode of transport” is unbelievable. If
I have to accept the submission of Ms. Mane that dehors the panchnama, in view
of the confession recorded under Section 108, the Court can still convict the ac-
cused, then I ask myself why should they even take any panch witness and why
should any one go through the trouble of recording of panchnama and produc-
ing the panch witness at the time of trial. Moreover, if I have to simply accept the
statement recorded under Section 108 as gospel truth and without any corrobora-
tion, 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 con-
traband gold, the accused could be straightaway sent to jail without the trial
Court having recorded any evidence or conducting a trial.
9. Various Courts have kept all these things in mind and come to a con-
clusion that in the absence of any corroboration by an independent and reliable
witness, a statement recorded under Section 108 in isolation could not be relied
upon. For this, I find support in State of Maharashtra v. Harshad Vaherbhai Patel &
Ors. [2012 (1) Bom.C.R. (Cri) 500] and unreported judgment of this Court in Shri
Malki Singh v. Suresh Kumar Himatial Parmar in Criminal Appeal No. 228 of 1999
delivered on 29-11-2019 [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 sections 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
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
examine whether the statement referred to as a confessional statement
meets the test of truthfulness and being voluntary in nature. In absence of
any independent material brought on record by the appellant, the Chief
Metropolitan 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 convic-
tion, particularly when it is retracted with a plea of coercion.”
10. Ms. Mane relied on the judgment of the Apex Court in Ramesh
Chandra v. State of West Bengal [AIR 1980 Supreme Court 793] to submit that cus-
toms officers are not police officers and the statement recorded under Section 108
of the Customs Act, 1962, is admissible in evidence. I have to be candid that I
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