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2011 (1) GCD 411 (Guj)
Hon’ble Mr. Justice Rajesh H. Shukla
Amad Noormamad Bakali
Versus
State of Gujarat & Ors.
Criminal Revision Application No. 381 of 20051—Decided on 21/12/2010
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 397 read with Sections 401, 161, 200 and 313 — [Indian] Evidence Act, 1872 (Central Act 1 of 1872) — Sections 30, 3, 24, 34, 6, 10 and 11 — Customs Act, 1962 (Central Act 52 of 1962) — Sections 108, 107 and 135 — Constitution of India, 1950 — Article 20(3) — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 102(B) — Criminal revisions — Convictions — Based on confessional statement of applicants and other co-accused — Nature of such statements — Sustainability — Finding of — The law is well settled that statements made before customs officer under Customs Act is admissible in evidence and it would not be hit by provisions of Evidence Act — So far as allegation of coercion and threat is concerned it is clearly held that for that it is the duty of the accused prima facie to establish by evidence that such statement was recorded under such compulsion — In the present cases no evidence has been brought on record, which primarily establish that it was voluntarily made — That apart statements so made under the special statute like Customs Act are not statement of accused, therefore, contention that statements of other co-accused can not be used against applicants has no substance and it is misconceived — The statements in an enquiry under Customs Act is made for further collecting evidence and in pursuance of statement when contraband articles are recovered, the statement becomes relevant as in the present cases — In the circumstances, conviction based on statements of accused can not be called perverse or has resulted in miscarriage of justice — Moreover the matter is under revision before the Court and revisional jurisdiction is very limited — Court, therefore, refused to interfere in the concurrent findings of two Courts below.
Held :
The first aspect about the admissibility of the statements recorded under Section 108 of the Customs Act is well settled in light of the judicial pronouncement made by the Apex Court that such statement made before the Officer is admissible in evidence as it cannot be said that the statement before the Police, which is also relied upon time and again that when during the inquiry, such statement is made before the authorized officer under the statute, such statements would be admissible in evidence and it would not be hit by the provisions of Section 34 or 30 of the Evidence Act.
[Para 32]
It is required to be mentioned as observed that it is the duty of the accused prima-facie to establish by evidence that such statement was recorded under such compulsion or coercion or threat then burden would shift on the prosecution to discharge that it was recorded voluntarily. In the facts of the present case, it could be seen that the accused had moved earlier Criminal Misc. Application Nos. 1340, 1347 & 1348 of 1985 and as per the order dated 19.09.1985 passed therein, it has been clearly recorded that the appellant had undertaken to accept summons under Section 108 of the Customs Act and had agreed to remain present for recording such statement. Therefore, such applications was made under Section 438 of the Criminal Procedure Code, wherein the orders has been passed recording some statements on behalf of the accused and, thereafter, when such statements is recorded, the submission with regard to coercion or threat cannot be readily accepted. Further, as rightly submitted by the learned counsel, Ms. Yagnik, no evidence has been brought on record on this aspect to primarily establish that it was not made voluntarily. Even the statements under Section 313 of the Criminal Procedure Code does not refer to this aspect, in which, it was open for the accused persons to say or state before the Court. Therefore, such contention which has been raised at belated stage by way of defence cannot be readily accepted. [Para 36]
Another facet of arguments that the statements made by the co-accused cannot be made admissible in evidence to establish the guilt of other co-accused even though the statement under Section 108 of the Customs Act is made admissible is also misconceived. As discussed above, the statement recorded under Section 108 of the Customs Act is not a statement under Section 164 of the Criminal Procedure Code as it is not a statement of the accused and still on the basis of such statement or admission made, further evidence is collected, which would be evidence for all the accused and if such independent evidence is there, it cannot be said that other co-accused are implicated merely on the basis of the statements of other co-accused recorded under Section 108 of the Customs Act. In fact, it is on the basis of such revelation, further evidence has been collected like in the present case on the basis of the statement of the co-accused when search has been made and the contraband articles (watches and money) has been recovered from the other co-accused would in fact be a evidence against them. Further, there is no explanation with regard to this aspect in further statements under Section 313 of the Criminal Procedure Code. Therefore, cumulative effect of the entire evidence has to be considered and particularly when there is no explanation coming forth from the accused or the concerned accused with regard to the incriminating evidence against him. Therefore, it cannot be said that the impugned judgment and order recording conviction, which has been confirmed, is perverse or resulted into miscarriage of justice. [Para 45]
Therefore, having regard to the aforesaid discussions, it cannot be said that the impugned judgment and order recording conviction, which has been confirmed by the lower Appellate Court is perverse or it is based only on the statements recorded under Section 108 of the Customs Act or even it is based on the statements of the co-accused recorded under Section 108 of the Customs Act as sought to be canvassed. Moreover, it is well settled that the scope of exercise of discretion is very limited as observed in a catena of judicial pronouncement [Para 46]
Therefore, having considered the aforesaid guidelines with regard to limited scope, there is no reason to interfere with the concurrent findings arrived at by both the Courts below and the present Revision Applications deserve to be dismissed. [Para 50]
Law Laid Down :
In absence of any miscarriage of justice exercise of discretion in revision would not be justified.
Case Law Analysis :
National Insurance Company Limited vs. Boghara Polyfab Private Ltd., (2009) 1 SCC 267 [Para 27];; Amar Chand Agarwal vs. Shanti Bose & Anr, AIR 1973 SC 799 [Para 27];; Gagan Bihari Samal & Anr. vs. State of Orissa, 1991(3) JT 63 [Para 28];; Bhana Khalpa Bhai Patel vs. Assistant Collector of Customs, Bulsar, Gujarat & Anr., AIR 1998 SC 1487 [Para 28];; State of Maharashtra vs. Sujay Mangesh Poyarekar, (2008) 9 SCC 475 [Para 28];; Ran Singh & Anr. vs. State of Haryana & Anr., (2008) 4 SCC 70 [Para 28];; K.I. Pavunny vs. Assistant Collector, (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721 [Para 33];; Abdulla vs. State of Maharashtra, AIR 1968 SC 832 [Para 37];; Rajesh Bajaj vs. State NCT of Delhi & Ors. (1999) 3 SCC 259 [Para 38];; Raj Kumar vs. State of Himachal Pradesh, (2008) 11 SCC 76 [Para 46];; State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 [Para 46];; Johar & Ors. vs. Mangal Prasad & Anr., AIR 2008 SC 1165 [Para 47].—Relied on
Rajesh H. Shukla, J.—As in all these Criminal Revision Applications, common questions arise for consideration as the aforeasid Revision Applications are also arising from the common judgement and order of the learned Additional Sessions Judge, Kutch at Bhuj, they are being considered simultaneously by the present common order.
2. The present Revision Applications have been filed challenging the impugned judgment and order passed by the learned Additional Sessions Judge, Kutch at Bhuj, in Criminal Appeal No. 28/2003 dated 21.5.2005 confirming the judgment and decree passed in Criminal Case No. 566/87 by the learned Chief Judicial Magistrate, Bhuj, dated 26.3.2003 recording conviction of the present applicants, original accused Nos. 2, 1, 5, 7, 3, 11 & 6 respectively, on the grounds set out in these applications.
3. In all there were 21 accused persons who were tried for the alleged offences under Section 135(1)(b)(i) of the Customs Act, 1962. Out of this, A-9, A-12, A-13, A-15, A-16, A-17, A-19, A-21 were acquitted. Accused Nos. A-1, A-2, A-3, A-5, A-6, A-7 and A-11 were convicted and held guilty, whereas A-4, A-8, A-18 and A-20 were not available and their trial was separated.
4. The present applicants-original accused have been convicted and sentenced to undergo R.I. for 3 years and fine of Rs. 2,000/-, i/d S.I. for 8 months as stated in the impugned judgment.
5. The Criminal Appeals, as stated above, against the impugned judgment and order of the Chief Judicial Magistrate recording the conviction have been dismissed and therefore the present Revision Applications have been preferred by the applicants, A-2, A-1, A-5, A-7, A-3, A-11 & A-6 respectively, on the grounds stated in detail in these applications.
Criminal Revision Application No. 381 of 2005
6. Learned Counsel Mr. Pardiwala appearing with Learned Advocate Ms. Megha Jani for the applicant submitted that the basis of conviction of the present applicant (A-2), is on the basis of the statement of the co-accused under Section 108 of the Customs Act. For that purpose, he referred to the material and evidence including the impugned judgment of the trial court at page 117 (Para 31), page 124 (Para 36) and page 164 and submitted that discussion is made with regard to the confessional statement of the present applicant where he has stated that he has admitted that the vessel belong to A-1, who is the brother, and he has a partnership. However, in Para 36 referring to this confessional statement, it has been discussed that both A-1 and A-2 have made confessional statements. However, this confessional statement is not inculpatory as it has been clearly stated and observed in the judgment and reference is made to the confessional statement of the other co-accused, A-5.
7. Therefore, Learned Counsel Mr. Pardiwala submitted that the applicant has been convicted only on the basis of such evidence and these very statements have been referred to and relied upon by the Sessions Court while confirming the judgment of the trial court. He has submitted that except this confessional statement of the applicant and other co-accused, there is no other evidence and the conviction which is passed and confirmed in the appeal is without any substantive evidence. Learned Counsel Mr. Pardiwala submitted that it is required to be considered whether the conviction can be sustained on such evidence. He further submitted that no conviction can be based solely on the confessional statement.
8. Further, Learned Counsel Mr. Pardiwala submitted that assuming that the statement of the present applicant is inculpatory, can conviction be based solely on such confessional statement? He further submitted that there has to be a corroborative evidence and such confessional statement can be used for corroboration. Learned Counsel Mr. Pardiwala submitted that the statement of the other co-accused recorded under Section 108 of the Customs Act is a weak piece of evidence qua the other accused and cannot be relied upo
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