Customs Act Section 108: When Statements Are Not Admissible

Evaluating the Admissibility of Statements Recorded Under Section 108 of the Customs Act 1962

In the complex landscape of customs investigations, the power to gather evidence and record testimonies is central to prosecuting cases of smuggling, undervaluation, and duty evasion. Central to this process is Section 108 of the Customs Act, 1962, which allows officers to summon individuals to provide evidence or produce critical documents. Because these statements often serve as the primary evidence against a defendant, a critical legal question emerges: Customs Act Section 108: When Statements Are Inadmissible?

While the law generally favors the admissibility of these statements, they are not immune to challenge. The transition from a recorded statement to a piece of evidence that can withstand judicial scrutiny depends heavily on voluntariness and strict adherence to procedural safeguards.

The General Rule of Admissibility under Section 108

Section 108 of the Customs Act operates similarly to Section 91 of the Code of Civil Procedure, granting customs officers the authority to issue summons, require appearances, and examine individuals on oath. A pivotal point of law is that customs officers are not considered police officers for the purposes of the Evidence Act.

Consequently, statements made before them are not barred by Section 25 of the Evidence Act, 1872. This distinction is vital because it means such statements can be used as substantive evidence in court. Indeed, as noted in judicial findings, a Statement recorded under section 108 of the Customs Act is not hit by section 25 of the Evidence Act and can alone be made basis for conviction, if it is worthy of credence 2006 0 Supreme(P&H) 2397. This indicates that if a statement is voluntary and credible, it may potentially form the sole basis for a conviction 2006 0 Supreme(P&H) 2397.

Grounds for Inadmissibility: When Statements Fail

Despite the general rule of admissibility, there are specific circumstances where a statement recorded under Section 108 is rendered inadmissible or loses its evidentiary value.

1. Lack of Voluntariness and the Challenge of Retraction

For any statement to be admissible, it must be voluntary and free from coercion. When an accused person later retracts a statement, the burden of proof shifts. While courts may uphold a statement if the retraction appears to be a mere afterthought 2014 Supreme(Online)(KER) 29706, retracted statements generally require independent corroboration to be used as evidence.

Furthermore, the mere act of marking a document as evidence does not prove its contents; normal proof requirements for confessions must still apply 2023 0 Supreme(Ker) 1062. If the prosecution fails to prove that the confession was voluntary, the statement may be discarded, potentially leading to an acquittal 2023 0 Supreme(Ker) 1062.

2. Non-Compliance with Sections 138B and 138C

The most significant procedural pitfall involves Sections 138B and 138C of the Customs Act. These sections provide a mandatory safeguard requiring that persons whose statements are used must be examined as witnesses before the adjudicating authority.

Failure to follow these mandates often leads to the statements being declared inadmissible. The law is clear: Statements recorded under section 108 of the Customs Act are inadmissible if not examined u/s 138B and 138C 2026 Supreme(Online)(CESTAT) 266. This has been a recurring theme in Customs, Excise and Central Excise Appellate Tribunal (CESTAT) rulings. For example, penalties and confiscation orders have been quashed in undervaluation appeals specifically because the authorities relied on retracted statements without following the procedural mandates of Section 138B 2026 Supreme(Online)(CESTAT) 266 and 2026 Supreme(Online)(CESTAT) 269 and 2026 Supreme(Online)(CESTAT) 270.

3. Use Against Co-Accused Persons

A statement made by one individual under Section 108 cannot be used as substantive evidence against a co-accused person without independent corroborating evidence. Section 30 of the Evidence Act is generally inapplicable to confessions of co-accused in this context 2026 0 Supreme(Del) 163.

Judicial precedents, such as the Sukhwani case, emphasize that statements under Section 108 cannot be read against co-accused

PEEYUSH KUMAR JAIN Vs Union Of India

Challenges to the Summons Process and Fundamental Rights

Beyond the admissibility of the statement itself, the process of summoning an individual under Section 108 can be challenged. However, courts generally maintain a high threshold for such challenges:

• Writ Petitions: Requests to quash Section 108 summons via writ petitions are typically dismissed if the investigation is still ongoing 2026 Supreme(Online)(Ker) 4987 and 2024 Supreme(Online)(Ker) 89882.
• Legal Representation: The right to have an advocate present during interrogation is generally permissible 2025 Supreme(Online)(KER) 11123.
• Constitutional Protections: The requirement for fair procedure is linked to Article 21 of the Constitution (protection of personal liberty) 1978 0 Supreme(SC) 29. While Section 108 provides statutory power, the principles of natural justice must be applied by implication to ensure the process is not abusive.

Summary Table: Admissibility Framework

| Condition | Status | Legal Requirement/Reason || :--- | :--- | :--- || Voluntary Statement | Admissible | Not hit by Section 25 Evidence Act 2006 0 Supreme(P&H) 2397 || Retracted Statement | Conditional | Requires independent corroboration 2014 Supreme(Online)(KER) 29706 || Non-compliance with 138B/C | Inadmissible | Must be examined by adjudicating authority 2026 Supreme(Online)(CESTAT) 266 || Statement against Co-accused| Inadmissible | Requires independent evidence; not substantive 2026 0 Supreme(Del) 163 || Coerced Statement | Inadmissible | Violates voluntariness and natural justice 2023 0 Supreme(Ker) 1062 |

Key Takeaways for Legal Proceedings

For those navigating customs proceedings, it is essential to recognize that while Section 108 statements are powerful, they are not infallible. For assessees, ensuring that procedural fairness is maintained—particularly regarding the examination of witnesses—is the primary way to challenge the admissibility of evidence. For authorities, the burden remains to prove voluntariness and ensure that all mandates under Sections 138B and 138C are met to prevent orders from being overturned by CESTAT.

In summary, the admissibility of a statement under Section 108 is contingent upon the absence of vitiating factors and strict procedural adherence. While the law grants broad powers to customs officers, the judiciary continues to safeguard against the abuse of these powers by enforcing due process. This analysis is based on general legal precedents and should not be treated as specific legal advice for any individual case.