IMPORTANT POINT
The confessional statement given to the customs officers u/s 108 of the customs Act, 1962 though retracted at a later stage, is admissible in evidence and can form basis for conviction as there is no prohibition under the Evidence Act to rely upon the retracted confession but the prudence and practive require that Court would seek assurance getting corroboration from the evidence adduced by the prosecution.

Headnote:Evidence Act, 1872-Section 24 -Customs Act, 1962-Sections 108 and 135 (1)(i)-Admissibility of confession-200 gold discuits of foreign marking conculed in a wooden box, recovered from compound of appellant s house in his presence-Appellant gave in his own handwreting confessional statement before custms officials - Whether confessuonal statement of appellant given to customs officers u/s 108 is admissible in evidence ?-(Yes)-Whether appellant was a "person accused of an offence u/s 24 when confessional statement was given by him or when he was summoned to customs office? -(No)-Whether confession was obtained by threat, force or inducement etc. and thereby inadmissible in evidence ?-(No)-Whether retracted confessional statement requires corroboration from any other independent evidence ?-(No, if court believes that confession was voluntary and true)-Rule of prudence requires lorroboration-Appellant committed offence u/s 135 (1)(i) of Act and u/s 85 (1)(a) & 86 of Gold (Control) Act, 1968-High Court committed no error of law in reversing acquittal-Sentence of fine of Rs. 10,000/- and Rs. 5,000.
       Held : (1) Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a peson accused under the Act. (2) he becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Offier in the Court of competent jurisdiction or Magistrate to take cognizance of the offenc e and summons are issued. Thereafter, he becomes a person accused of the offence. (3) A statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act. (4) Though the Ustoms Officer is an authority within the meaning of Section 24 of the Evidene Act, by reason of statutory compulsion of recording the statement or the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant s surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise. (5) The collection of evidence under Seciton 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. (6) The self-same evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes. (Para 13)
       Further held that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prodence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corrobrate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other whords, whether it was not obtained by threat, duress or promise. If the Court i s satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retrac ted confession is true, that tpart of the inculpatory portion could be relied upon to base conviction. However, the prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution. (Para 17)
       Finally held : On scanning the evidence and going through the reasoning of the learned Single Judge we fing that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis ofr conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasonsing and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspect, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrete and reached his conclusions.therefore, there is no ilegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings that the prosecution has proved the case based upon the conression of the appellant given in Ex. P-4 under Seciton 108 of the Evidence Act and the evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt and the High Court has committed no error of law. (Para 21)

JUDGMENT

K.ramaswamy, J.-This appeal by special leave has come up before this Bench, pursuant to a reference order dated November 9, 1994 passed by a two-Judge Bench, to consider whether the confessional statement of the appellant given to the Customs officers under Section 108 of the Customs Act, 1962 (for short, the Act ), though re tracted at a later stage, is admissible inevidence and cold form basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence? In support of the reference, the learned Judges have cited Kashmira Singh v. The State of Madhya Pradesh1, and Chandrakant Chimanlal Desai v. State of Gujarat2.

2. The fats in this case are that at 8.00 a.m. on December 6, 1980, 200 gold biscuits of foreign marking were recovered from the compound of the appellant s house in his presence after digging got done by the Customs official, PW-2, T.K. Rajasekaran, superintendent of Customs, and PW-5, N. Gopalan Nambiar, Inspector and two panch witnesses, PW-3 and another. The same were kept concealed in a wooden box burried in the ground visible through the window of his bed - room. The appellant gave, in his own handwriting, confessional statement, Ex. P-4 at 1.00 p.m. on the said date before the Customs officials. In the proceedings for confiscation, 200 gold biscuits, since unclaimed, were confiscated. but the imposition of penalty was set aside which became final. Thereafter, the complaint was filed by PW-1, the Collector of Customs on May 15, 1982 and it was refiled on January 1, 1985. the appellant was apprehended on June 19, 1982. The appellant was apprehended on June 19, 1982 and was released on bail. The prosecution case hinges upon the retracted confessional statement, Ex. P-A, The recovery proceedngs, Ex. P-3, and evidence of witnesses, PWs-1 to 5 for prrof of recovery of the contraband from the compound of the appellant s house. The magistrate by his judgment dated March 29, 1986 acquitted the appellant of the charges under Section 135(1)(i) of the Act and Sections 85(1)(a) and 86 of the Gold (Control) Act, 1968. On apeal, the leanred Single Judge of the Kerala High Court by the impugned judgment dated July 13, 1988 set aside the acquittal andconvicted the appellant of the aforesaid offence and sentenced him to under go imprisonment for a period of 1 year and 6 months respectively and both thesentences were directed to run concurrently.

3. Shri Thakur, learned senior counsel for the appellant, has contended that the confessional statement, Ex. P-4 was obtained by coercion and threaat of implicating his wife in the offences and, therefore, the appellant had not made voluntary statement. The recovery of the gold biscuits from his compound was shrouded with several suspicious features. He further argued that the panch witness, PW-3 was involved in smuggling activities and initially a warrant to search his house was obtained bt when he same proved unsuccessful, recovery came to be made fomr the house of the appellant. They went to the compund and straightaway got the spot located and dugged up the place from which the gold biscuits were recovered. That would go to show that PW-3 had implanted them in the compund of the appellant for safe custody thereof. Unless the appellant had conscious possession of the contraband, he could not be convicted of the ofence. The magistrate has given valid and cogent reasons in support of his conclusion that the prosecutin failed to prove the case beyond reasonable doubt. The High Court, without properly appreciating the reasons given by the magistrate and without finding whether or not those reasons wer sustainable on the basis of the evidenc eon record, independently considered the evidence and reached the conclusin that the prosecution had proved its case aginst the appellant beyond reasonable doubt. The approach adopted by the High Court is not correct in law. He also contended that the learned Judge shoud

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1997 Supreme(SC) 169

Cases Referred (25)