The prosecution must prove the voluntary nature of statements given under section 108 of the Customs Act, and the statement under section 313 of Cr.P.C cannot replace substantive evidence.

JUDGMENT :

BECHU KURIAN THOMAS, J.

An Irish citizen was found in possession of ten gold bars at the Cochin International Airport on 13.07.2015. He was soon indicted for smuggling gold and prosecuted in C.C. No.411/2016 before the Additional Chief Judicial Magistrate (EO), Ernakulam. By judgment dated 26.03.2019, the learned Additional Chief Judicial Magistrate acquitted the accused. Hence, this appeal.

2. The prosecution was initiated based upon a complaint filed by the Assistant Commissioner of Customs, alleging offences punishable under sections 132 and 135 of the Customs Act, 1962 (for short 'the Act').

3. The prosecution case was that the accused arrived at Cochin International Airport on 13.07.2015 on Emirates Flight EK 534 from Dubai. He had with him two pieces of hand baggage.

At the exit gate of the airport terminal, he was intercepted and found in possession of a customs declaration form duly filled in, with the column for declaration of Gold Jewellery (Over Free Allowance) encircled. Prosecution alleged that when the accused was questioned on whether he carried any dutiable goods, he replied in the negative. However, since the X-ray showed a dark image in his coat pockets, a search was conducted, which revealed that he carried a gold bar in each of his pockets. There were ten gold bars weighing 10 kg in total and worth Rs.2,45,43,500/-. Later, the accused gave a statement under section 108 of the Act, confessing that he had engaged in smuggling the gold to India. He also stated that he had indulged in smuggling on 21 occasions earlier, thus committing the offences alleged.

4. Prosecution examined PW1 to PW10 and marked Ext.P1 to Ext.P12. On behalf of the accused, DW1 was examined. A court exhibit was marked as Ext.D1 produced pursuant to a summons and a warrant issued to the Jail Superintendent. Ext.D2 was also marked on the side of the defence. No material objects were produced or marked in the case.

5. After analysing the evidence, the trial court acquitted the accused. In coming to such a conclusion, the trial court found that the accused had retracted his statement given under section 108 of the Act and that he had declared that he was carrying gold and also that he had encircled the customs declaration form, though it was mistakenly circled in the column for gold jewellery instead of gold bullion. The trial court also found that the prosecution had suppressed the bill for the purchase of gold despite its seizure from his bag.

6. Sri. Suvin R. Menon, the learned Central Government Counsel, vehemently and with dexterity, contended that the trial court misread the evidence and also erred in acquitting the accused. It was submitted that there was no legal evidence for retraction of the statement under section 108 of the Act and that the statement alone was sufficient to convict the accused. According to Adv. Suvin, though Ext.D1 was marked in evidence, it could not have been relied upon by the court as it had not been proved. Drawing the distinction between proof of contents of a document and marking of a document, it was argued that the Ext.D1 was merely marked without any person being examined. The learned counsel referred to various decisions in support of the above proposition. It was further argued that the admission of the accused in the statement under section 313 of Cr.P.C that he had brought the gold bars to India itself is sufficient to prove the act of smuggling and, therefore, the burden was entirely upon the accused to prove that he had not committed the offence. Numerous decisions were referred to in support of his contentions.

7. Sri. Sajeev Kumar M.S., the learned counsel for the accused, also, with thorough preparation, argued that the entire prosecution story was fabricated and the acquittal of the accused ought to be sustained. It was also submitted that apart from the statement under section 108 of the Act having been retracted as evident from Ext.D1 and the bail applications that were filed by the accuse