B.D. Goel vs Ebrahim Essa Sodha

Mridula Bhatkar, J.—The appeal is directed against the judgment and order of acquittal dated 17-1-1994 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Bombay, thereby acquitting the respondent from the offences punishable u/s 135{1)(a)(i) and 135(1)(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. It is the case of the prosecution that the appellant was working as an Assistant Collector of Customs (Preventive Department), Bombay at the relevant time. He had received a secret information on 6-5-1987 that one msv Rajendra Jyoti, PSR 695, a cargo vessel travelling from Sharjah to Mumbai was carrying contraband gold sealed in the vessel or in the luggage of the Sailors or the crew members. The respondent No. 1, namely, Shri Ebrahim Essa Sodh, was the Captain (tindle) of the vessel and 12 crew members were deployed at the relevant time on the said vessel, The officers of the customs went to the vessel and all the crew members including the respondent No. 1 were called. The information, received by the complainant was disclosed to them. However, the respondent No. 1 and the crew members feigned ignorance about carrying such contraband gold. Thereafter, the country craft was searched on 8th, 9th and 10th May, 1987 by the customs officials in the presence of Panchas. Nothing was found on the vessel or in the luggage of the respondent or the crew members. The respondent was thoroughly interrogated and finally, he admitted that the contraband gold was carried in the vessel but he threw the said gold as soon as the vessel arrived at Hay Bunder to avoid detection by the customs and also with a view that some gold could be retrieved later by him. He showed the area where he dumped the gold in the sea. The customs officials carried out combing operation in the area of the sea where the gold was dumped as per the information of the respondent. The operation was successful on 10th May, 1987 as it resulted into recovery of 48 gold bars in a tin container, totally weighing 5596.800 gms, then valued at Rs. 9,57,052.80. The said gold bars were seized under panchanama. However, as per the information given by the respondent that he had dumped in all 53 gold bars of 10 tolas each, the customs officials again, on the next day, conducted a search and found 5 gold bars of 10 tolas each, which were slipped out of the container. They were also seized under panchanama on 11-5-1987. According to the prosecution, the said gold was smuggled into India from Sharjah and, therefore, it was confiscated under the Customs Act, 1962. The total gold was valued at Rs. 10,56,745.80 at the international market. In the course of investigation, a statement of the accused who confessed about the dumping of the 53 gold bars of 10 tolas each in the sea was recorded u/s 108 of the Customs Act. The cargo bags in which the gold bars were seized in which the they were carrying wet dates were also shown and that was also seized by the customs. Statements of all the 12 crew members were also recorded u/s 108 of the Customs Act, who have stated that they were with the respondent threw gold bars in the sea. The accused was thereafter arrested u/s 104 of the Customs Act on 12-5-1987 and was produced before the JMFC and sent to the judicial custody. A complaint was presented before the learned Judge on 7th June, 1988. The Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, framed charge on 10-7-1989 against the respondent u/s 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act and u/s 5 of the Imports and Exports (Control) Act.

The prosecution in support of its case has examined 5 witnesses, namely, Akhilesh Kumar (PW1) who was an intelligence officer at Hay Bunder, Narendrakumar Kasturilal Punjabi (PVV2) who was working as Superintendent, Rummaging and Intelligence, Shah Alam Qureshi (PW3), a panch of seizure panchanama, Narendra Dayaram Koteja (PW4) another panch for repacking of the gold ornaments and Purushottam Dattatraya Kulkarni (PW5), who was a customs officer.

Learned Prosecutor has submitted that the judgment of acquittal passed by the learned Judge is erroneous, illegal and is to be set aside. The evidence of PW1 Akhilesh Kumar and PW2 Narendrakumar Kasturilal Punjabi should have been accepted fully by the learned Judge. PW1 Akhilesh Kumar had received the information respect of the vessel msv Rajendra Jyoti that it was carrying contraband gold. On receipt of the information on 6-5-1987, immediately he along with the other customs officer went to the vessel and they carried out the examination of the vessel so also they interrogated the respondent and other crew members. She argued that in searching interrogation of the respondent, ultimately, he made statement disclosing that he threw 53 gold bars in the sea. The learned Counsel submitted that pursuant to this information, gold was actually recovered. The fact of recovery was sufficient to prove guilt against the respondent. The seizure was made under panchanama, which is marked at exhibit P1 and also exhibit P2. She further submitted that the evidence of PW2 Narendrakumar Punjabi, who corroborated fully with the evidence of PW1 Akhilesh Kumar should have been given weightage completely in favour of the prosecution while assessing his evidence. Both the witnesses have stated that in the first attempt, initially they found 48 gold bars in the tin container on 10-5-1987 and thereafter as five gold bars were also less, as per the information given by the respondent, second search was carried out and on the next day i.e., 11-5-1987, the five gold bars were recovered from the sea which is very difficult to recover, if dumped in the sea. A fact of recovery of goods from the sea, the place pointed out by the respondent, itself establishes the possession of the contraband, the knowledge of it and the incriminating role played by the respondent. She submitted that the learned Judge has committed an error in discarding the evidence of statement of the respondent - accused recorded u/s 108 of the Customs Act. She challenged the judgment of the trial Court as it is contrary to the legal position which is laid down u/s 108 of the Customs Act. She submitted that the Customs Officer is empowered to record the statement of a person which includes an accused also. Such statement of the accused may be a confession but is admissible in evidence as the customs officer is not a police officer.

In support of her submissions, she relied on the decision of the Supreme Court in the case of 1997 (69) ECR 209 (SC) ; the decision of Calcutta High Court in the case of Extrusion Vs. Collector of Customs, ; and of 2001 (132) ELT 375

Learned Counsel for the Respondent No. 1 supported the judgment of the trial Court and argued that the panchas of search and seizure panchanama did not support the prosecution. He argued that the conviction cannot be based solely on a statement of the accused recorded u/s 108 of the Customs Act. He submitted that in the absence of any corroborative evidence especially the evidence of panchas, panchanama is not proved and, therefore, no value can be attached to the statement of the respondent-accused recorded u/s 108 of the Customs Act. He further submitted that the statements of the crew members were also recorded u/s 108 of the Customs Act and they should have been examined by the prosecution for the purpose of corroboration. The crew members did not understand English, the language in which the statements were recorded. The statements were explained to them by interpreters and thereafter they signed the statements. He submitted that the prosecution failed to examine the said witnesses and available evidence was kept back and, therefore, adverse inference against the prosecution is to be drawn. He submitted that there are number of inconsistencies in the evidence and irregularities in the seizure panchanama. He submitted that the tin container, in which gold was found and which was seized, the signatures of the panchas were not appearing on it. The panchanama is doubtful.

The learned Counsel further submitted that on 7-5-1987, there were many vessels standing in Hay Bunder and the contraband which was found, was 20'' to 25'' away from the said vessel Rajendra Jyoti. He submitted that the possibility that somebody from the other vessel might have thrown the gold in the sea and the customs after getting this information out of suspicion interrogated the crew members and the respondent. The respondent was in the custody of the customs officer for nearly 4 to 5 days and, therefore, the possibility that he giving confessional statement out of pressure or harassment, cannot be overruled. He argued that the said statement, though admissible under the Customs Act, he has retracted the said confession. Therefore, its evidentiary value has been diluted. Further, he submitted that PW1 has deposed that the panchas had remained with them throughout day and night, however, the panchas did not support the same.

In support of his submissions, he relied on a catena of judgments, namely, Muralidhar @ Gidda and Another Vs. State of Karnataka, ; Noor Aga Vs. State of Punjab and Another, ; Kanhaiyalal Vs. Union of India (UOI), Haroon Haji Abdulla Vs. State of Maharashtra, ; State of Maharashtra Vs. Hasmukh Hargovind Shah,

The case of the prosecution in fact stands on the evidence of two witnesses i.e., PW1 and PW2, the customs officer. They have stated about receiving intelligence and thereafter visiting the vessel Rajendra Jyoti. Both of them corroborate each other on the point of statement made by the respondent and recording of statement u/s 108 and thereafter finding of gold in the combing operation on 10-5-1987 and 11-5-1987, the gold was recovered in two parts and it was seized and sealed. Both of them have stated that the Panchanama to that effect was made. PW Shah Qureshi is the panch. He has deposed that he was called by the customs officer on 9-5-1987 at Hay Bunder at around 9.15 am and the panchanama continued till the next day. He has stated that the other panch Tulsidas was also present. He has stated that PW1 and PW2 were also present. However, he did not support the case of the prosecution and only deposed that he signed the panchanama in the customs chowki and the officers told him that the contraband gold was recovered from sea water. He admitted his signatures but he showed ignorance about the contents in the panchanama. He refused that the respondent made confession before the customs officers in his presence that he had smuggled 53 gold bars and then, he dumped those gold bars in the tin container and sealed the container and threw them in the sea. The fact of recovery of gold from the sea which is produced before the Court, is established by the prosecution. However, the prosecution is required to prove the nexus between the complainant and the recovery. The recovery of gold is in a very peculiar manner as it is found in the ocean. Thus, the place where the gold was lying was the fathom of the sea. It is necessary for the prosecution to prove beyond reasonable doubt that the recovery was made at the instance of the accused. This is to be established on the basis of the other independent and distinct evidence which can be relied and accepted safely by the Court. In the present case, only one panch is examined, who is the only independent witness who did not support the prosecution and hence, the contents in the panchanama i.e., P1 and P2 were not reliably proved. In the present case, the learned Prosecutor has raised a legal point of evidentiary value of the statement recorded by the customs officer u/s 108 of the Customs Act. In fact, this issue is not a res Integra in view of the different judgments of the Supreme Court and the various High Courts.

In the case of K.I. Pavunny v. Asstt. Collector (HQ), CE Collectorate, Cochin (supra), it is held that there is no prohibition under the Evidence Act to rely upon a retracted confession to prove the case of the prosecution and to make the same as the basis for conviction of the accused. So also it is not necessary that there should be corroboration from the independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. If the Court is satisfied from the evidence that it was voluntary then it is required to examine whether the statement is true and if the Court on examination finds that the retracted confessional statement is true, then that inculpatory portion could be relied upon to base a conviction.

In Noor Aga v. State of Punjab & Anr. (supra), the Supreme Court had dealt with several questions of grave importance including the constitutional validity of NDPS Act, 1985 so also some provisions under the Customs Act. In the case before it, the High Court had placed explicit reliance on Section 108 of the Customs Act. The High Court had considered enquiry by the customs officer u/s 108(4) of the Customs Act as a judicial proceeding. The Supreme Court clarified that the value of a statement made before the customs authority u/s 108 as deemed to be before the judicial proceeding within the meaning of Sections 193 to 228 of the Indian Penal Code and it is not for the purpose of convicting an accused under any other statute including the provisions of the Act. It is also observed that Article 20(3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself and thus, a statement recorded u/s 108 of the Customs Act must give way to Article 20(3) wherever there is a conflict between the two. The retracted confessional statement may be relied upon with rider that if it is made voluntary and the burden of proving such voluntary action is on the prosecution. The Supreme Court also dealt with the effect of retracted confession and held that it is a weak evidence and it can be used only if it is found truthful and trustworthy if substantially corroborated by other independent and cogent evidence.

In Kanhaiyalal v. Union of India (supra), the Supreme Court has held that there is a necessity of corroboration in the case of retracted confession in order to base conviction thereupon. If the circumstances of a particular case raised doubts as to the genuineness of a confession, then, the Court has to seek assurance from corroborated evidence.

In case of Haroon Haji Abdulla Vs. State of Maharashtra, the Supreme Court held that a retracted confession is a weak link against the maker and moreso, against the co-accused.

In State of Maharashtra Vs. Hasmukh Hargovind Shah, a learned Single Judge of the Bombay High Court had an opportunity to deal with the evidentiary value of the statement made to the Customs Officer u/s 108 of the Customs Act. It was observed that while recording statements u/s 108, the accused should be warned that the statements would be liable to be used against him and that he should be put on notice. One needs to bear in mind that there is a possibility of coercion or inducement while recording statement u/s 108.

Thus, the statement u/s 108 is admissible and it can be relied also. However, if at all it is retracted, then, weightage can be given to it only if there is corroboration on other material particulars. In the present case, as the panchas did not corroborate and the prosecution did not examine the other panch, that material evidence collapsed. Moreover, as per the evidence of the PW1 Akhilesh Kumar and PVV2 Narendrakumar Punjabi, the statements of the 12 crew members were recorded. However, in the cross-examination, PW1 Akhilesh Kumar has admitted that to his knowledge, there was no other crew member to state that the accused had thrown a tin containing gold into the sea. PW2 Narendrakumar Punjabi admitted in the cross-examination that there was no eye witness to prove that the accused had thrown the contraband gold. PW2 Narendrakumar Punjabi has stated that the statements of the crew members were recorded by a scribe and the statements were read over and explained to the witnesses before they signed as they did not understand English language and, therefore, a Gujarati interpreter was called. None of these crew members were examined as it was explained by the prosecution that no summons was served on any crew member as they all were out of India. However, the witnesses PW1 and PW2 have stated that the statements were recorded by a scribe and they were explained by the interpreter. The learned trial Judge has rightly observed that in the absence of the statements of these crew members, when the same were relevant u/w 108(b) of the Customs Act, it was the duty of the prosecution to examine either the interpreter or the scribe and record their statements in order to confirm the veracity of the contents of the statements. PW2 Narendrakumar Punjabi in his further cross-examination has admitted that it was difficult to say who has endorsed ''''read over, translated and explained the above statements and accepted by the crew member as correctly recorded".

Thus, these statements cannot be attached much value. However, this evidence was available to the prosecution. It was further pointed out to me that at the relevant time i.e., between 1-5-1987 and 6-5-1987 that in the further cross-examination of PW2, he admitted that from 1-5-1987 to 6-5-1987, arrival entries of 25 ships were made in the arrival register and only one vessel had departed between and only one vessel had departed between 1-5-1987 and 6-5-1987 and on 9-5-1987, 6 vessels had arrived and on 10th May, 1987, 4 vessels had arrived. Thus, the defence was successful in creating doubt in the mind that the vessel Rajendra Jyoti was not the only vessel berthed at the Hay Bunder during that period but nearly 25 vessels had arrived and, therefore, the possibility that any other person might have thrown the tin filled with gold bars in the sea could not have been overruled.

Thus, I rely on the decision of the Supreme Court in the case of Muralidhar @ Gidda & Anr. v. State of Karnataka (supra). In the case of Muralidhar @ Gidda & Anr. (supra), the trial Court had passed an order of acquittal where the prosecution relied on the dying declaration. However, the High Court upset the judgment of acquittal. Therefore, the appeals were preferred. In the said judgment, the Honourable Chief Justice gave precautionary directions to the appellate Court before upsetting the judgment of the trial Court, as under :

"...(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally loath in disturbing the finding of fact recorded by the trial Court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial Court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial Court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate Court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court."

In view of these directions also, I find that the trial Court has taken an evenly balanced view while assessing the evidence and, therefore, there is no need to disturb the finding of the trial Court. In the result, the appeal is dismissed.