Statements under Section 108 of the Customs Act are admissible unless proven involuntary; concurrent findings of conviction upheld when based on sufficient evidence despite challenges regarding the admissibility of the statements.

JUDGMENT :

L. S. Pirzada, J.

1. Rule. Learned A.P.P. Mr.Niraj Sharma waives service of Rule for the respondent no.1 and learned advocate Mr.Utkarsh Sharma waives service of Rule for the respondent no.2.

2. The present revision application preferred by the present applicant – original accused under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 08.10.2003 passed by the learned Sessions Judge, Valsad in Criminal Appeal No.9 of 2002 whereby, the appeal preferred by the present applicant – accused came to be dismissed and the judgment of conviction dated 31.07.1993 passed by the learned Additional Chief Judicial Magistrate, Valsad in Criminal Case No.1 of 1989, convicting the accused for the offence punishable under Section 135 of the Customs Act, 1962 (for short, “the Act”) and sentencing him to undergo two years’ rigorous imprisonment and to pay a fine of Rs.2,000/–, in default, to undergo two months’ simple imprisonment, came to be confirmed.

3. Heard learned advocate Mr.Rushabh Shah for the applicant. He submitted that the judgment passed by both the Courts below is bad in law and against the evidence produced before the Court. Further, it is submitted that conviction is solely based on the statement of the accused recorded by the Custom Officer under the provisions of Section 108 of the Act. It is submitted that it is a rule of law that even if the statement of the accused is held to be admissible, but if it is proved that the statement is not voluntary, it cannot base the conviction, relying upon the said statement. It is submitted that in the catena of judgments by the Apex Court, presumption of innocence that is available, reasonable explanation tendered by the accused and retracted confection cannot form basis of conviction and the Court should be put on caution while dealing with a statement recorded under Section 108 of the Act.

3.1. Further, it is submitted that the raid was carried out on 16.10.1986 and on the same day, first statement under Section 108 of the Act was recorded vide Exh.21 and on 18.10.1986, second statement of the accused under Section 108 of the Act was recorded and produced vide Exh.23. One more statement was recorded and the same is produced at Exh.24. Thereafter, the accused was allowed to go home. Nothing further was done in the matter by the custom officials and after almost a period of three years, on 01.02.1989, a complaint was given before the Court of the learned Chief Judicial Magistrate, Valsad under section 135 of the Act.

3.2. Further, it is submitted that in the statement of the accused, he categorically stated that he has been dealing with the business of diamonds as a commission agent since last about 20 to 25 years and is operating from Navsari. The accused stated before the officials that he buys rough diamonds as well as polished diamonds from the open market and in this business, nothing is on paper so, there cannot be any documentary evidence to show the selling and buying of the diamonds. It is further submitted that the fact remains that the diamonds are not illegally imported, as provided under Section 135 of the Act. Further, he would submit that a person must have the requisite knowledge or reasons to believe that the property is liable to be confiscated.

3.3. It is submitted that considering the overall evidence produced before the Court, it is coming on record that the statement of the accused has been recorded under duress and threat and it is not volunteer and both the Courts below have not considered this a