The admissibility of confession statements under Sections 107 & 108 of the Customs Act and the burden of proof under Section 123 were central legal points established in the judgment.

K. GNANAPRAKASAM, J.

The Customs Preventive Unit, Tuticorin, on information, recovered precious stones from the house of the petitioner on 27-6-1986 along with a chit containing the name of one A.C.M. Zubair. On interrogation, the appellant gave a statement, confessing that he had purchased the said stones from Zubair, who is admittedly a Sri Lankan national. As the petitioner was not having any customs duty paid receipt nor any valid document to prove the licit nature of the goods and after show cause notice, the Collector of Central Excise and Customs, Madurai, who is the assessing authority passed an order confiscating the goods and also imposed a penalty of Rs. 2500/- to the appellant and Rs. 2500/- to A.C.M. Zubair.

2.On appeal to the Tribunal, the order was modified and the appellant was permitted to redeem the stones on payment of Rs. 25, 000/- and also reduced the penalty from Rs. 2500/- to Rs. 1000/-. The petitioner applied to the Tribunal to refer the following questions to the High Court. The Tribunal, by a majority has made the reference.

3.The questions referred are :-

Whether in the facts and circumstances of the case, (1) reliance can be placed on the statement of the appellant?

Whether in the facts and circumstances of the case, the (2) evidence cited against the appellant could be taken to be sufficient to raise a presumption in favour of the department for the purpose of confiscation of the goods?

4.Thiru V. Sathish Sundhar, learned Advocate for the appellant has submitted that the appellant was arrested on 27-6-1986 and he was released only on 30-06-1986. While the appellant was in custody a statement was obtained from him on 28-6-1986, wherein he has admitted that the stones seized were smuggled to India through one Zubair and he had entrusted the same to him for sale. According to the appellant, the said statement is not a voluntary statement and the same was obtained by threat and coersion, while he was under custody i.e. duress and the same is inadmissible. It is also pointed out that the appellant's wife gave a telegram to the Additional Chief Judicial Magistrate (South) Madurai on 28-6-1986 and the appellant also gave a telegram after his release on 30-6-1986 and the appellant also took treatment on 1-7-1986 in Government Hospital for the injuries said to have been inflicted while he was in custody and also produced a copy of the accident register to show the injuries said to have been caused on the body of the appellant. Pointing out all these factors, it is argued that while the appellant was in the custody of the respondent, he was forced to give such a statement. As the statement was not a voluntary one, the same could not be taken into consideration and the same is inadmissible. Learned Counsel for the appellant also relied upon the judgment reported in Nathu v. State of U.P. wherein it was observed -

"It appears to us that the prolonged custody immediately preceding the making of the confession is sufficient; unless it is properly explained to stamp exhibit p.15, as involuntary. P.W. 33 made no attempt to explain this unusual circumstance. It is true that with reference to this matter the appellant made various suggestions in the cross-examination of P.W. 33, such as that he was given bhang and liquor, or shown pictures, or promised to be made an approver, and they have been rejected and rightly as unfounded."

5.The case of Roshan Beevi and Others v. Joint Secretary to Government of Tamil Nadu (1984 Crl. L.J. 134) was also relied upon by the appellant. That case deals with the confession statement made by a person in other equiry under Sections 107 & 108 of the Customs Act. It is observed -

"In a proceeding under the provisions of the Customs Act, when any person is required or summoned for an enquiry under Section 107 or Section 108, that person is not an accused person and the officer summoning that person is not a police officer. Any confession made by a person summoned under Section 107