Page 146 - ELT_15th June 2020_VOL 372_Part 6th

824 EXCISE LAW TIMES [ Vol. 372

submit that purity of gold or fineness of gold was 97%. Ms. Mane, Learned Spe-
cial PP relied on Apex Court’s judgment in Ramesh Chandra v. State of West Bengal
[AIR 1970 SC 940 = 1999 (110) E.L.T. 324 (S.C.)] to submit that because the arrest
is made only after recording of statement under Section 108 of the Customs Act,
the statement recorded is that of a witness and not of accused and that is why
Courts have held that the statement recorded before a Customs Officer is admis-
sible in evidence. But the legal position is statement recorded under Section 108
cannot be used as substantive evidence against accused. It has to be corroborat-
ed.
16. 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 [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
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 ac-
cused 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, particularly when it is retracted with a plea of coercion. “
17. The prosecution has merely tendered on record the Mint report
which does not contain any detail to co-relate with the assay carried out by the
Mint is of the gold that was actually seized from respondent. This is provided
that the gold seized has been legally seized. The prosecution has not established
on record by bringing original extracts from the register containing entries of
sample seized by P.W.-3 on examination of contents of Exhibit P-10 Panchnama.
It is clear that no specific identification number or any other information has
been given to the gold samples. There is no evidence to show as to in whose cus-
tody the gold was until it was sent for assay. There are various other omissions
mentioned in the impugned judgment, which for sake of brevity, I am not repro-
ducing.
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