Gujarat High Court
Narendrabhai Kantilal Soni vs The State Of Gujarat on 18 September, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 88
of 2005
With
R/CRIMINAL REVISION APPLICATION NO. 89 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
NARENDRABHAI KANTILAL SONI
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR YATIN SONI(868) for the Applicant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/09/2024
ORAL JUDGMENT
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1. The complainant-H.K. Thakur had filed the
complaint on 16.9.1989 being Criminal Case no.538
of 1989 before the Chief Metropolitan Magistrate’s
Court, Ahmedabad under Section 135 of the Customs
Act, 1962 and under Section 85 of the Gold
(Control) Act, 1968 and under Section 120(B) and
120(A) of Indian Penal Code, 1860 (for short
‘IPC’) against (1) Rajendra Natverlal Soni, (2)
Rakesh Chandulal Soni, (3) Dilip Vanaji Soni, (4)
Narendra Kantilal Soni and (5) Mahesh Kantilal
Soni.
1.2 The present revisions applications has arisen
against the judgment of the additional city
sessions Judge, Ahmedabad dated 14.12.2004
dismissing the Criminal Appeal no.32 of 2002 and
confirming the order of learned Metropolitan
Magistrate passed in Criminal Case no.538 of 1989
dated 19.6.2002.
1.3 The learned Additional Chief Metropolitan
Magistrate, Ahmedabad while deciding the matter on
19.6.2002, convicted and sentenced accused no.1, 2
and 4 for the offence under Section 135 of the
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Customs Act read with Section 120B of the IPC with
RI of 3 years and with fine of Rs.5,000/- in
default, further one month SI. Under Section 85
the Gold Control Act, accused no.1, 2 and 4 were
found guilty and were sentenced to six months RI
with fine of Rs.2,000/- and in default of payment
of fine, further one month SI. The sentence
against accused no.1, 2 and 4 were ordered to run
concurrently.
1.4 While accused no.3 was ordered to be convicted
under Section 85 of the Gold Control Act and was
sentenced for 3 months RI with fine of Rs.500/-
and in failure to pay the fine, further one month
SI. While he was acquitted from the offence under
Section 120B of IPC read with Section 135 of the
Customs Act.
1.5 Present Revision Applications no.88 and 89 of 2005
are of accused no.4 and 2 respectively. Accused
no.1 died during pendency of Criminal Revision
Application no.87 of 2005, so his matter stood
abated.
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2. Facts of the case are that, on the basis of
information, watch was kept near Raipur Darwaja, 3
Custom Inspectors were deputed, who have
accordingly intercepted 2 accused persons viz. (1)
Rajendra Natverlal Soni and (2) Rakesh Chandulal
Soni near Raipur Darwaja on a scooter bearing
no.GJK 9434 with 5 contraband gold stripes at
about 10-15 hrs. in the morning on 6.8.1989. Both
the accused were brought to Customs Office at
Navrangpura, thereafter search and seizure
procedure was done. Subsequently, their statements
under Section 108 of the Customs Act were recorded
by the Customs Officer.
2.1 During the course of inquiry, 5 contraband foreign
gold stripes were alleged to be recovered from
accused no.1 Rajendra Natverlal Soni.
2.2 As per the prosecution case, the accused no.1 was
carrier and accused no.2 was the owner of the said
gold stripes.
2.3 Accused no.2 Rakesh Chandulal Soni had purchased 3
gold biscuits from Mahesh Kantilal Soni and 2 gold
biscuits from Narendra Kantilal Soni accused no.4.
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2.4 As per the prosecution case, after purchasing the
said gold biscuits, accused Rakesh Chandulal Soni
and Rajendra Natverlal Soni went to the shop of
Parekh Art Jewelers for converting gold bars into
gold stripes. The owner of Parekh Art Jewellers
was Sureshkumar Parekh, while accused no.3 Dilip
Vanaji Soni was working with Sureshkumar Parekh in
the shop. As per the prosecution case, said gold
bars were converted into gold stripes by accused
no.3 Dilip Vanaji Soni after taking charge of
Rs.25/-.
2.5 Thereafter, when the accused no.1 Rajendra Soni
and accused no.2 Rakesh Soni were going for
delivering the said gold stripes, near Raipur
Darwaja, Ahmedabad, 3 Customs Inspectors
apprehended accused no.1 and accused no.2 Rajendra
and Rakesh.
2.6 Learned advocate Mr. Yatin Soni very vehemently
contended that the Criminal Appeal is a statutory
right of the accused and that the learned
Appellate Court was required to appreciate the
contention raised by the advocates on record by
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appreciating the evidence recorded by the learned
Metropolitan Magistrate during the trial. Learned
advocate Mr. Soni submitted that the learned
Appellate Court has failed to take into
consideration the evidence of individual witnesses
to examine the legality and validity of the
judgment of the learned Metropolitan Magistrate
Court. Mr. Soni submitted that the learned
Appellate Court had merely given the reasoning on
the basis of the provisions of law and judgments
cited, where actually the authority of the
officers to seize the alleged gold and the power
of the officer recording the statements were
required to be examined by way of the evidence
recorded. Mr. Soni further stated that the
corroboration and contradiction of the witnesses
were to be examined. Mr. Soni submitted that the
moot question which was required to be examined
was whether the statement noted to be under
Section 108 of the Customs Act was admissible in
law and whether the gold seized were smuggled
goods.
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3. Learned advocate Mr. Yatin Soni for the applicant
submitted that during the course of inquiry as
alleged, 5 contraband foreign gold stripes were
allegedly recovered with the specific allegation
that two gold biscuits were purchased from accused
no.4, while three gold biscuits were purchased
from accused no.5, who subsequently came to be
discharged from the matter mainly on the ground
that there was no material against accused no.5
and that he had not given any confessional
statement under Section 108 of the Customs Act and
that nothing was recovered from him. Advocate Mr.
Soni submitted that if that is to be considered,
then there would also not be any case against
Narendra Kantilal Soni – accused no.4, as his
statement is not a confessional statement, nor
does he know accused no.1 and 2.
3.1 Advocate Mr. Soni submitted that had the Customs
Department really had the inputs and therefore, 3
custom officers had intercepted accused no.1 and 2
who were traveling on scooter bearing registration
no. GJK 9434 then such 3 officers were required to
be examined during the course of trial. Advocate
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Mr. Soni submitted that at Raipur Darvaja, no
panchnama was drawn of detention of accused no.1
and 2 nor running panchnama was drawn. There is
nothing to verify the fact that the accused no.1
and 2 were intercepted at Raipur Darvaja. Advocate
Mr. Soni submitted that the time of detention and
the time consumed for drawing of Panchnama at
Navrangpura Custom office also becomes doubtful.
The fairness of the proceedings are not reflected
on record since the Panchnama drawn was not by a
proper officer and further stated that had the
Customs Department received the input, they were
required to make arrangement for an independent
panchas at Raipur gate but no such efforts were
made by any of the 3 officers.
3.2 Advocate Mr. Soni submitted that the prosecution
sought to rely upon the alleged confessional
statement. The learned Trial Court was required to
consider the time and the date of recording of the
confessional statement and further submitted that
narration of the prosecution taking the accused
from Raipur Darvaja to custom house, Navrangpura
would become hard to believe in absence of
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examination of the Customs Officer who took the
accused there. Advocate Mr. Soni submitted that
the ground for shifting the accused from Raipur
Darvaja to custom office, Navrangpura was on the
pretext that mob had gathered, but none from any
of the person gathered had been examined as an
independent witness to corroborate the fact of
interception of the accused no.1 and 2 at Raipur
Darvaja. Advocate Mr. Soni submitted that the
recovery of the gold stripes were shown at custom
office, Navrangpura. The unusual time of recording
the statement and recording the panchanma without
any independent witnesses supporting the
prosecution case would create doubt on the version
of the customs officer, when the officer who had
actually said to have done the entire proceeding
is not examined as witness. The statement of
accused no.1 and 2 after the alleged arrest at
10.30 a.m. on 6.8.1989 at Raipur Darvaja and
panchanama of recovery of Muddamal recorded from
11:00 a.m. to 5:00 p.m. and thereafter, the
statement recorded late under Section 108 of the
Customs Act very clearly proves that there was an
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illegal detention and that the statements were not
voluntarily recorded, but it can be presumed that
the statement so recorded were under force and
threat, and coercion.
3.3 Advocate Mr. Soni submitted that the statements as
alleged to be confessional by the accused were
also required to be appreciated under the fact of
retraction. Advocate Mr. Soni submitted that the
Court was required to consider the aspect from the
point of view of retracted statement, while the
learned Judge had erred in shifting the burden on
the accused observing that the accused have failed
to prove that the statements were recorded under
threat and were not on their own will. Advocate
Mr. Soni submitted that the learned Trial Court as
well as Appellate Court failed to examine the
circumstances under which the confessional
statements came to be recorded and the fact that
the officer who had actually recorded the
statement has not been examined by the prosecution
and the officer examined failed to prove that he
was duly empowered. Advocate Mr. Soni submitted
that the allegation of purchasing two gold
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biscuits from accused no.4 and three gold biscuits
from accused no.5, have also not been proved by
the prosecution to consider the gold as foreign
bars.
3.4 In light of fact that the accused no.5 has been
discharged, there would not be any case of
purchase of contraband article as foreign gold.
Advocate Mr. Soni submitted that the learned Judge
was also required to take into consideration that
the Gold Control Act was repealed long back on
6.6.1990. Further the allegation that the accused
no.3 had converted the gold bars into gold stripes
could not be proved by way of examination of any
independent witness or by any panchnama drawn at
the place of the shop to corroborate the
allegation that the gold bars were converted into
gold stripes through some instrument or machine of
that shop and thereafter, the contraband gold bars
on conversion as gold stripes were carried by
accused no.1 and 2. Advocate Mr. Soni submitted
that the allegation is against the accused no.1
that he was a carrier of the gold stripes while
the owner of the gold stripes was accused no.2.
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3.5 Advocate Mr. Soni submitted that the seizure
panchnama also becomes doubtful since the arrest
was made on 6.8.1989 while the marks which were
proposed to be read on the gold stripes are
alleged to be not legible with bare eye. The
alleged inscription could have been read by virtue
of some microscopic article, but no such efforts
were made by the officer to get the articles to be
microscopically examined there. Further submitted
that during the trial, it could be found out that
the packets of seized articles were opened for the
first time in the Court after 15.8.1989, and from
9.8.1989 to 15.8.1989, the article remained packed
intact. Advocate Mr. Soni submitted that the
newspaper packet reflected the date as of December
1989 while in the cross-examination, the witness
expressed ignorance regarding the newspaper cover
of December, 1989. Advocate Mr. Soni submitted
that it could be found out from the newspaper
where the page disclosed the weekly astrological
forecast for the time period of 17.12.1989 to
23.12.1989, where the case of the prosecution is
that the newspaper was used for the packing and
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sealing of Muddamal on 15.9.1989 while it was
opened in the court only on 26.11.1991. Advocate
Mr. Soni submitted that therefore, the Court was
required to doubt the seal and seizure and benefit
of doubt was required to be given to the accused.
3.6 Advocate Mr. Soni submitted that the prosecution
has also failed to prove that the gold was sold by
accused no.4 and 5 to accused no.2 as no
documentary evidence has been placed on record
regarding its possession at the hands of accused
no.4 and 5 while the Court has not found any case
against accused no.5 while discharging him during
the course of trial. Advocate Mr. Soni submitted
that all the issues were raised but the learned
Trial Court has not dealt with the same.
3.7 Mr. Yatin Soni, learned advocate for the applicant
has relied upon the following judgments:-
a. Haroom Haji Abdulla v. State of Maharashtra, AIR
1968 SC 832.
b. Assistant Collector of Central Excise, Rajamundry
v. Duncan Agro Industries Ltd., AIR 2000 SC 2901.
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c. Vanamala Jagadeswaraiah v. The Deputy Commissioner
(Legal) Customs and Central Excise Hyderabad, 2001
CrLJ 1590.
d. Antapalli Venkata Ramana Murty v. The State, 1994
CrLJ 1693.
e. Union of India v. Abdulkadar Abdulgani Masmani,
1985 CrLJ 324.
f. Prem Singh @ Pappu Papiya v. Union of India,
through Inspector Customs Department, Jaisalmer,
1995 CrLJ 1122.
g. State of Maharashtra v. Hasmukh Hargovind Shah,
1993 CrLJ 1953.
3.8 Advocate Mr. Soni submitted that under the Customs
Act, the statements voluntarily given only would
come under the purview of Section 108 of the
Customs Act, 1962. Here the family members as well
as others had by telegram and other means informed
the customs office that the detention was illegal
and further the accused had retracted their
confessional statement stating that it was under
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threat and force and further submitted that
statement of accused no.1 and 2 were recorded on
6.8.1989 while the statement of accused no.3 on
7.8.1989 which itself proves that they were
recorded without issuance of summons. Thus,
relying upon the judgment of Abdulkadar Abdulgani
Masmani (supra), submitted that the statement as
recorded as confessional statement would not fall
under Section 108 of the Customs Act since in the
judgment of Abdulkadar Abdulgani Masmani (supra),
the Division Bench of this Court has noted that
the stage of recording of statement under Section
108 would arise only when the inquiry is started
either for confiscation of goods or for imposing
the penalty. While it was not such a case in the
present matter and hence, stated that the
statement cannot be read as falling under Section
108 of the Customs Act. Keeping reliance on the
said judgment of Abdulkadar Abdulgani Masmani
(supra), Mr. Soni further submitted that the
burden to prove that the goods seized were not
smuggled would get shifted on the accused only
after the officer who would be considered as
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‘proper officer’ has been examined and submitted
that Section 123 of the Customs Act would get
attracted only when there is a reasonable believe
of the proper officer as of smuggled goods, who is
authorized to seize the smuggled goods under the
Customs Act, and elaborated that Section 110 of
the Customs Act empowers only a proper officer to
seize the goods if he has reason to believe that
the goods are liable to be confiscated under the
Act.
3.9 Relying on the judgment in the case of Haroom Haji
Abdulla (supra), learned advocate Mr. Soni
submitted that the statement of co-accused cannot
be considered in evidence unless and until
corroborated in material particulars, as Section
133 of the Evidence Act settles the law that
though the accomplice is a competent witness
against the accused but to that the rider is an
illustration (b) of Section 114 of the Evidence
Act which calls for corroboration in material
particulars and thus, in view of the judgment of
Haroom Haji Abdulla (supra), Mr. Soni submitted
that confession of the co-accused stands on a
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lower level than accomplice, since accomplice’s
statement would be tested in cross-examination
while the statement of the co-accused would not
pass such rigors and thus, confession retracted
must be looked into under Section 30 of the
Evidence Act. It is further submitted that the
statement recorded under Section 108 of the
Customs Act shall not be before a police officer
and hence, it should be scrutinized by the Court
with great concern and circumspection, since the
Court has to be satisfied, in such a case of such
statement made by accused person to a Gazetted
Officer whether has passed a test prescribed under
Section 24 of the Evidence Act and if it gets
vitiated under Section 24, then that statement
becomes useless in the criminal proceedings.
Advocate Mr. Soni submitted that confessional
statement of the co-accused under Section 108
though is admissible, cannot be used as
substantive evidence as contemplated under Section
30 of the Evidence Act.
3.10 While referring to the judgment of Antapalli
Venkata Ramana Murty (supra), Advocate Mr. Soni
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submitted that the Gold Control Act deals with
Section 85 regarding the search and seizure and
when the recovery is alleged to be under Customs
Act it requires proper appreciation of the
evidence as such seizure becomes doubtful in
absence of independent witness. Relying on the
judgment in the case of Prem Singh @ Pappu Papiya
(supra), it is submitted that retracted statements
if not contradicted by existing reliable evidence,
then it should be considered that the statement
had not been given voluntarily.
3.11 Relying on the case of Hasmukh Hargovind Shah
(supra), Advocate Mr. Soni submitted that the
possibility of inducement and threat cannot be
ruled out in absence of proof of fairness and
adherence to provisions of law.
4. Countering the arguments, learned advocate Mr.
Chirayu Mehta for the respondent no.2 – Customs
Department relied upon the judgment of the Hon’ble
Supreme Court in the case of Gulam Hussain Shaikh
Chougule v. S. Reynolds, (2002) 1 SCC 155 to
submit that the confessional statement recorded by
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the customs officer under Section 108 of the
Customs Act is neither hit by Section 164 of the
Cr.P.C., nor Section 25 of the Indian Evidence Act
in view of the judgment in the case of Duncan Agro
Industries Ltd. (supra) and Haroom Haji Abdulla
(supra). Romesh Chandra Mehta v. State of West
Bengal, (1969) 2 SCR 461 and Percy Rustomji Basta
v. State of Maharashtra, (1971) 1 SCC 847 and
stated that the observation has been made in the
judgment of the Hon’ble Apex Court that the High
Courts have declined to accept on the basis of the
evidence that the confessional statement was made
under any inducement, threat or physical assault
and thus, the Court did not find any need to
interfere in the judgment of conviction.
4.1 Learned advocate Mr. Chirayu Mehta has also
referred to the case of Naresh Sukhwani v. Union
of India, 1995 Supp. 4 SCC 663 to submit that the
statement before the Customs Officer is not a
statement recorded by the police officer and it is
material piece of evidence collected by the
Customs Officer under Section 108 though the
statement may inculpate the accused and the other
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person, but it becomes substantive evidence during
the trial, Advocate Mr. Mehta has also relied upon
the judgment in the case of Badku Joti Savant v.
State of Mysore, 1966 CrLJ 1353 to state that the
power which has been given to the Custom Officer
to record the statement would not be hit as per
Section 25 of the Evidence Act and would be
admissible in evidence unless otherwise proved
under Section 24 of the Evidence Act. Learned
advocate Mr. Chirayu Mehta submitted that the case
has been proved before the learned Trial Court and
confirmed by the appellant, thus there is no other
reason to interfere in the judgment of conviction.
5. On perusal of the judgment of the learned
Appellate Court, it appears that the learned
Appellate Court has not examined the evidence
recorded by the learned Metropolitan Court of the
witnesses. The learned Appellate Judge has only
discussed the legal contention but has not gone
into detailed consideration of the evidence to
come to the conclusion for confirming the judgment
of the Metropolitan Court. In the case of State of
Rajasthan v. Chandgi Ram 2014 14 SCC 596, the
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Hon’ble Supreme Court has observed in Paragraph 27
as under:-
“In our considered view, when the High
Court had interfered with the
conviction imposed by trial court, it
ought to have examined the evidence
meticulously and expressed cogent and
convincing reasons as to why the
detailed consideration of the evidence
did not inspire confidence in order to
interfere with the conclusion of the
trial court. In our considered view,
the High Court had miserably failed to
carry out the said exercise and
without assigning reasons, much less
convincing reasons, has chosen to
interfere with the conviction imposed
by the Trial Court in a light-hearted
manner.”
6. In the case of Iqbal Abdul Samiya Mnalek v. State
of Gujarat, (2012) 11 SCC 312, the Hon’ble Supreme
Court has held that in the appeal against
conviction, the proper mode of examination of
evidence by Appellate Court and findings to be
recorded by it would be that the Appellate Court
looks into evidence adduced in case to arrive at
an independent conclusion as to whether said
evidence can be relied upon or not and even if it
can be relied upon, then it must adjudicate
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whether prosecution can be said to have proved
beyond reasonable doubt on said evidence. It was
further held that the Court without going into all
materials including oral and documentary evidence
disposing of appeal affirming judgment of trial
Court would not be acceptable. It was further held
that credibility of a witness has to be adjudged
by the Appellate court in drawing inference from
proved and admitted facts and the appeal cannot be
disposed of without examining records/merits. The
matter was remitted to the Court for decision
afresh in accordance with law.
7. In the case of Bakshish Ram & Anr. v. State of
Punjab, AIR 2013 SC 1484, it was observed that the
Appellate Court has to apply its independent mind
and record its own finding by making independent
assessment of evidence and in absence of
independent assessment by the Court, its ultimate
decision cannot be sustained.
8. This Court having observed that the learned
Appellate Court has failed to meticulously examine
the evidence on record and express cogent and
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convincing reasons with reference to the evidence,
and if the judgment of the learned Appellate Court
suffers from infirmities, the correctness of the
findings, the legality and propriety of the
findings are required to be examined and in turn
to examine the confirmation of the sentence then
the revisional jurisdiction can be invoked. This
court is mindful of the fact that the revision
court are meant not to act as an Appellate Court.
The whole purpose of the revisional jurisdiction
is to preserve the power of court to do justice in
accordance to the principles of criminal
jurisprudence. The revisional power of the Court
under Section 397 to 401 of the Cr.P.C. is not to
be equated with that of an appeal, unless the
finding of the Court whose decision is sought to
be revised is shown to be perverse or untenable in
law or is grossly erroneous or glaringly
unreasonable or when the decision is based on no
material or where the material facts are wholly
ignored or where the judicial discretion is
exercised arbitrarily or capriciously the court
may not interfere the decision in exercise of the
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revisional jurisdiction as laid down in Sanjaysinh
Ramrao Chavan v. Dattatray Gulabrao Phalke & Ors.
2015 (1) Crimes 90 (SC).
9. The revisional court would go into the evidence as
to the facts where it is necessary to do justice
to the parties more particularly when the Courts
whose orders are challenged have acted in manner
contrary to the well established principle of law,
or the findings are without any evidence to
support and there is illegality in arriving at a
finding which is perverse.
10. Section 135 of the Customs Act reads as under:-
“135. Evasion of duty or
prohibitions.–
(1) Without prejudice to any action
that may be taken under this Act, if
any person–
(a) is in relation to any goods in any
way knowingly concerned in any
fraudulent evasion or attempt at
evasion of any duty chargeable thereon
or of any prohibition for the time
being imposed under this Act or any
other law for the time being in force
with respect to such goods, or
(b) acquires possession of or is in
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any way concerned in carrying,
removing, depositing, harbouring,
keeping, concealing, selling or
purchasing or in any other manner
dealing with any goods which he knows
or has reason to believe are liable to
confiscation under Section 111,he shall be punishable,–
(i) in the case of an offence to any
of the goods to which Section 123
applies and the market price whereof
exceeds one lakh of rupees, with
imprisonment for a term which may
extend to seven years and with fine.
Provided that in the absence of
special and adequate reasons to the
contrary to be recorded in the
judgment of the court, such
imprisonment shall not be for less
than one year;
(ii) in any other case, with
imprisonment for a term which may
extend to three years, or with fine,
or with both.
(2) If any person convicted of an
offence under this section or under
sub-section (1) of section 136 is
again convicted of an offence under
this section, then, he shall be
punishable for the second and for
every subsequent offence with
imprisonment for a term which may
extend to seven years and with fine:
Provided that in the absence of Page 25 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined
special and adequate reasons to the
contrary to be recorded in the
judgment of the court such
imprisonment shall not be for less
than one year.
(3) For the purposes of sub-sections
(1) and (2), the following shall not
be considered as special and adequate
reasons for awarding a sentence of
imprisonment for a term of less than
one year, namely:–
(i) the fact that the accused has been
convicted for the first time for an
offence under this Act;
(ii) the fact that in any proceeding
under this Act, other than a
prosecution, the accused has been
ordered to pay a penalty or the goods
which are the subject matter of such
proceedings have been ordered to be
confiscated or any other action has
been taken against him for the same
act which constitutes the offence;
(iii) the fact that the accused was
not the principal offender and was
acting merely as a carrier of goods or
otherwise was a secondary party to the
commission of the offence;
(iv) the age of the accused.”
11. Section 85 of the Gold Control Act, 1968 is
reproduced hereunder:-
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“85. Punishment for illegal
possession etc., of gold.
(1) Whoever, in contravention of the
provisions of this Act or any rule or
order made thereunder,-
(i) makes, manufactures, prepares or
processes any primary gold, or
(ii) owns or has in his possession,
custody or control any primary gold,
or
(iii) buys or otherwise acquires,
or accepts or otherwise receives, or
agrees to buy or otherwise acquire or
to accept or otherwise receive, any
primary gold, or
(iv) sells, delivers, transfers or
otherwise disposes of, or agrees to
sell, deliver, transfer or otherwise
dispose of, or exposes or offers for
sale, delivery, transfer or disposal,
any primary gold, or
(v) melts, assays, refines, extracts,
alloys, or converts any gold or
subjects it to any other process, or
(vi) makes, manufactures, prepares,
repairs, polishes or processes, or
places any order for the making,
manufacturing, preparing, repairing,
polishing or processing of, any
article or ornament, or
(vii) buys or otherwise acquires,
or accepts or otherwise receives, orPage 27 of 108
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agrees to buy or otherwise acquire or
to accept or otherwise receive, or
sells, delivers, transfers or
otherwise disposes of, or agrees to
sell, deliver, transfer or otherwise
dispose of, or exposes or offers for
sale, delivery, transfer or other
disposal, any article or ornament, or
(viii) owns or has in his
possession, custody or control any
article or ornament, or
(ix) carries on any business or
transaction in gold for which a
licence or certificate is required to
be obtained by or under this Act, or
(x) carries on business as a banker
or money-lender;[shall, without
prejudice to any other action that may
be taken under this Act, be
punishable-
(a) if the offence is under clause
(i), (ii), (iii), (iv) or (viii) the
offence under clause (viii) being a
contravention of sub-section (3) of
Section 55] and the value of the gold
involved therein exceeds one lakh of
rupees, with imprisonment for a term
which may extend to seven years and
with fine:
Provided that in the absence of
special and adequate reasons to the
contrary to be recorded in the
judgment of the court such
imprisonment shall not be for a term
of less than six months;
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imprisonment for a term which may
extend to three years, or with fine,
or with both.
(2) If any person convicted of an
offence under this section, or under
sub-section (2) of Section 95, is
again convicted of an offence under
this section, then, he shall be
punishable to for the second and for
every subsequent offence with
imprisonment for a term which may
extend to seven years and with fine:
Provided that in the absence of
special adequate reasons to the
contrary to be recorded in the
judgment of the court such
imprisonment shall not be for a term
of less than six months.
(3) For the purposes of sub-sections
(1) and (2), the following shall not
be considered as special and adequate
reasons for awarding a sentence of
imprisonment for a term of less than
six months, namely:-
(i) the fact that the accused has
been convicted for the first time for
an offence under this Act;
(ii) the fact that in any proceeding
under this Act, other than a
prosecution, the accused has been
ordered to pay a penalty or the goods
in relation to such proceedings have
been ordered to be confiscated or anyPage 29 of 108
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other action has been taken against
him for the same act which constitutes
the offence;
(iii) the fact that the accused
was not the principal offender and was
acting merely as a carrier of goods or
otherwise was a secondary party to the
commission of the offence;
(iv) the age of the accused.”
12. The charge was framed below Exh.240. The
complainant was H.K. Thakur, Assistant Collector
of Customs (Preventive), Customs House,
Navrangpura who had filed his complaint on
16.6.1989. As per the facts recorded by the
learned Trial Court Judge, while accused no.1 and
2 were on their way on their scooter were stopped
by the officers, accused Rajendra Soni (A1)
confessed that he is in his possession of 5 gold
stripes of foreign marks which were prepared from
gold bars. Accused Rakesh (A2) had affirmed the
said fact and after such inquiry at Raipur
Darvaja, since lot of people had gathered there,
for further interrogation/inquiry and for the
safety purpose along with the scooter, both the
accused were taken to the custom house, Ahmedabad
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and in presence of Panchas, Gazetted Officer of
the Customs Department searched the accused and
during the search, 5 gold stripes were found from
the inner pocket of the trousers of the accused
no.1. The weight of the gold was noted as 582.500
gms., valued at Rs.1,71,837.50. Each stripe was
declared as of weight of 116.500 gms. None of the
accused could produce any of the written document
to show the legal possession and the ownership. In
presence of Panchas before the Gazetted Officer,
the accused no.2 Rakesh was examined but no such
objectionable item was found from him.
13. As per the record of the learned Trial Court,
Panchnama of 582.500 gms. gold was drawn and it
was seized. Out of Panchas, one of the Panch was
gold smith who on examination of the articles had
stated it to be 24 carat pure gold which as per
his knowledge, in general was not made in India.
The learned Trial Court Judge noted that the
accused Rajendra Soni in his statement under
Section 108 of the Customs Act on 6.8.1989 had
confessed that he had 5 gold stripes of gold in
his possession and the accused Rakesh Soni had
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confessed that he had gone to Parekh Art Jewelers,
Ahmedabad, a shop where Dilip Soni accused no.3
was present, who had converted the gold bars into
stripes and had charged Rs.5/- for each gold
biscuits and therefore, Rs.25/- was given towards
labour charge for converting the gold bars into
gold stripes.
14. As per the prosecution, accused no.3 would convert
the foreign mark gold biscuits into gold stripes
under the labour charge and in the present case,
Rs.25/- was paid to the accused no.3 by accused
no.2 Rakesh Soni.
15. It was also noted in the judgment that accused
Rajendra Soni had stated in his statement under
Section 108 that he was also detained in 1962
under FORAPOSA. The learned Judge has observed
that the accused Rakesh Soni’s statement on
6.8.1989 confesses that he had purchased two gold
biscuits on 6.8.1989 from accused no.4 Narendra
Soni of foreign mark, 3 gold biscuits from accused
no.5 Mahesh Soni. It has also been noted that
Rakesh Soni has also stated in the statement that
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5 gold biscuits of foreign marks were in original
form and he had got it converted in the morning of
6.8.1989 into gold stripes from Parekh Art
Jewelers with accused Dilip Soni.
16. The accused Rakesh Soni had been a pillion rider
on the scooter of Rajendra Soni, who had also
admitted that at Raipur Darvaja in the morning of
6.8.1989, they were stopped by custom officer. As
per Rakesh Soni, the gold stripes were to be given
to an unknown person which as per the telephonic
talks was to come at Raipur Darvaja but had not
come to collect the same, while both the accused
were arrested with the contraband gold.
17. Accused Dilip Soni’s statement under Section 108
was recorded who had admitted before the Custom
Officer that he was in shop in the name of Parekh
Art Jewelers and 5 foreign mark gold biscuits were
given to him and as per the instructions, by
charging Rs.25/- as labour charge, he had
converted the gold bars into gold stripes and had
returned back the same to accused no.1 and 2.
18. At Exh.92, H.K. Thakor complainant was examined as
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PW1, Girdharlal Trivedi, Superintendent of Customs
was examined at Exh.106 as PW2, Superintendent
Customs Naranbhai Bhavanbhai at Exh.114 was
examined as PW3 and Inspector Ratilal Patel as PW4
was examined at Exh.158, Joseph Sayman,
Superintendent of Customs (Preventive) was
examined at Exh.191, Arvind Soni, PW5 was examined
at Exh.276, Vinubhai Parmar, Custom Superintendent
was examined at PW9 at Exh.328 and Arvind Modi,
Custom Inspector was examined as PW10 at Exh.331
and Somalal Patel PW8 was examined at Exh.325. The
defence had also produced the list at Exh.350 to
examine the witness stating that they wanted to
examine the witness and the process was issued but
for a long period, the witness could not be made
available before the Court and the matter was
listed for final arguments.
19. The argument which was raised by the learned
Public Prosecutor before the learned Trial Court
Judge was about criminal conspiracy of all the
accused for transit of the gold of foreign mark.
H.K. Thakur who had given the complaint was
examined who stated that the facts were brought
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before him and after seeking requisite sanction,
he had given the complaint. The learned Judge has
considered the evidence of Naranbhai Bhavan at
Exh.114 of seizing the goods and also the evidence
of witness Ratilal Patel who had stated that the
goods were sent to the customs godown and for the
corroboration of the seized goods sent to the
customs godown, witness PW2 Trivedi Girdharlal at
Exh.106 was examined and for the purpose of
corroboration of the seizure, panch witness Arvind
Virjibhai Soni, PW5 was examined. Somalal Patel
was also examined for the purpose of seizure and
PW7 Bharat Mistri, FSL Science Officer at Exh.284
was examined for the purpose of purity of the gold
and for his opinion.
20. It was argued that the confessional statement
which was given by the accused at Exh.126, 129,
132 and 141 under Section 108 of the Customs Act
were voluntarily and were recorded as per the
provisions of the Act.
21. The statements which have been put in evidence and
exhibited were during the course of examination of
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witness PW3 Naranbhai Bhavanbhai, Superintendent
Customs at Exh.114.
22. In terms of the argument by learned advocates, the
issue to be verified would be whether inculpating
part is confession caused by inducement, threat or
promise and if found that such inculpatory part
was not voluntarily given, then would be
considered as vitiated on the premise envisaged in
Section 24 of the Indian Evidence Act.
23. Section 24 of the Indian Evidence Act reads as
under:-
“24. Confession caused by inducement,
threat or promise, when irrelevant in
criminal proceeding.-
A confession made by an accused person
is irrelevant in a criminal
proceeding, if the making of the
confession appears to the Court to
have been caused by any inducement,
threat or promise having reference to
the charge against the accused person,
proceeding from a person in authority
and sufficient, in the opinion of the
Court, to give the accused person
grounds which would appear to him
reasonable for supposing that by
making it he would gain any advantage
or avoid any evil of a temporal nature
in reference to the proceedings
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against him.”
24. Section 108 of the Customs Act reads as under:-
“108. Power to summon persons to give
evidence and produce documents.–
(1) Any Gazetted Officer of customs
shall have power to summon any person
whose attendance he considers
necessary either to give evidence or
to produce a document or any other
thing in any inquiry which such
officer is making in connection with
smuggling of any goods.
(2) A summons to produce documents or
other things may be for the production
of certain specified documents or
things or for the production of all
documents or things of a certain
description in the possession or under
the control of the person summoned.
(3) All persons so summoned shall be
bound to attend either in person or by
an authorised agent, as such officer
may direct; and all persons so
summoned shall be bound to state the
truth upon any subject respecting
which they are examined or make
statements and produce such documents
and other things as may be required:
Provided that the exemption under
section 132 of the Code of Civil
Procedure, 1908 (5 of 1908), shall be
applicable to any requisition for
attendance under this section.
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(4) Every such inquiry as aforesaid
shall be deemed to be a judicial
proceeding within the meaning of
section 193 and section 228 of the
Indian Penal Code, 1860 (45 of 1860).”
25. Accordingly, the confession made by an accused
person becomes irrelevant in criminal proceeding
if making of the confession appears to the Court
to have been caused by inducement, threat or
promise. The expression ‘confession’ is not
defined in the Act. The confession is a statement
made by an accused which must either admit in
terms of the offence or at any rate substantially
all the facts which constitute the offence. The
dictionary meaning of word “statement” is ‘act of
stating; that which is stated; a formal account,
declaration of the facts, etc.’ The word
confession would be voluntarily, if made in a fit
state of mind and not caused by any inducement,
threat or promise. The burden is on the
prosecution to show that the confession is
voluntarily in nature not obtained as outcome of
any threat or promise or has not been by any
inducement.
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26. Under Section 24 of the Indian Evidence Act,
following ingredients are required to be
established:-
(a) the statement in question is a confession;
(b) such confession has been made by an accused;
(c) it has been made to a person in authority;
(d) it was obtained by reason of any inducement,
threat or promise proceeding from a person in
authority;
(e) such inducement, threat or promise must have
reference to the charge against the accused
person; and
(f) the inducement, threat or promise must be, in
the opinion of the Court is sufficient to
give an accused person grounds which would
appear to him to be reasonable by supposing
that by making it he would gain any advantage
or avoid evil of a temporal nature in
reference to the proceedings against him.
27. Section 24 contemplates confession by an accused.
In light of the provision of complaint made under
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Section 135 of the Customs Act when would an
apprehended person be termed as accused. In Veera
Ibrahim v. The State of Maharashtra, (1976) 2 SCC
302, it was held in Paragraph 9 that an accusation
that would stamp him as an accused would be when
the complaint was filed against him complaining of
the commission of the offences made under Section
135(a) and (b) of the Customs Act.
28. Now in view of this opinion of the Hon’ble Apex
Court, the statement recorded of the accused on
6.8.1989 and 7.8.1989 are to be examined in
context with the provisions of Section 108 of the
Customs Act.
29. In the case of Gulam Hussain Shaikh Chougule
(supra), the case of the prosecution was to the
effect that 207 silver ingots weighing
approximately 30 kgs., valued at Rs.4,22,48,225/-
were clandestinely brought into Goa in an Arab
Dhow and the same were to be transported in the
trawler Gramdev Navdurga (for short the trawler).
When the said trawler was intercepted at Aguada
Light House by the Officers of the Customs
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Department, the appellant was found to be present
on the trawler. The investigation revealed that
the trawler was stationed on the port for being
used to carry and transport the contraband silver
ingots. The question which was examined was while
recording the statement under Section 108 of the
Customs Act by the custom authority, whether had
they not followed the safeguards provided under
Section 164 of Cr.P.C. and whether the statements
of the applicants were recorded under Section 108
of the Customs Act during the period of detention
after giving threats and exercising duress. The
medical papers of the applicants showed that they
were assaulted and thus, the statement of the
applicants was resisted on the ground that the
statement recorded under Section 108 of the
Customs Act cannot be said to be voluntarily. In
the judgment of Gulam Hussain Shaikh Chougule
(supra), the case of Duncan Agro Industries Ltd.
(supra) was referred, wherein the Court had
observed as under:-
“Section 108 of the Customs Act does
not contemplate any magisterialPage 41 of 108
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intervention. The power under the said
section is intended to be exercised by
a gazetted officer of the Customs
Department. Sub- section (3) enjoins
on the person summoned by the officer
to state the truth upon any subject
respecting which he is examined. He is
not excused from speaking the truth on
the premise that such statement could
be used against him. The said
requirement is included in the
provision for the purpose of enabling
the gazetted officer to elicit the
truth from the person interrogated.
There is no involvement of the
Magistrate at that stage. The entire
idea behind the provision is that the
gazetted officer questioning the
person must gather all the truth
concerning the episode. If the
statement so extracted is untrue its
utility for the officer gets lost.
….. The ban contained in section
25 of the Evidence Act is an absolute
ban. But it must be remembered that
there is no ban in regard to the
confession made to any person other
than a police officer, except when
such confession was made while he is
in police custody. The inculpatory
statement made by any person
under Section 108 is to non-police
personnel and hence it has no tinge of
inadmissibility in evidence if it was
made when the person concerned was not
then in police custody. Nonetheless
the caution contained in law is that
such a statement should be scrutinised
by the court in the same manner asPage 42 of 108
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confession made by an accused person
to any non-police personnel. The court
has to be satisfied in such cases,
that any inculpatory statement made by
an accused person to a gazetted
officer must also pass the tests
prescribed in Section 24 of the
Evidence Act. If such a statement is
impaired by any of the vitiating
premises enumerated in Section 24 that
statement becomes useless in any
criminal proceedings.”
30. In the case of Gulam Hussain Shaikh Chougule
(supra), the cases of Haroom Haji Abdulla (supra),
Romesh Chandra Mehta (supra), Percy Rustomji Basta
(supra), Harbansingh Sardar Lenasingh v. State of
Maharashtra, AIR 1972 SC 1224, Veera Ibrahim v.
The State of Maharashtra, (1976) 2 SCC 302 and
Poolpandi v. Supdt., Central Excise, 1992 CrLJ
2761 were referred.
31. In Gulam Hussain Shaikh Chougule (supra), the
confessional statement recorded by the custom
officer under Section 108 of the Customs Act is
considered to be neither hit by Section 164
Cr.P.C., nor Section 25 of the Indian Evidence
Act. It was thus held in Paragraph 14 as under:-
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“We hold that a statement recorded by
Customs Officers under Section 108 of
the Customs Act is admissible in
evidence. The court has to test
whether the inculpating portions were
made voluntarily or whether it is
vitiated on account of any of the
premises envisaged in Section 24 of
the Evidence Act.”
32. The conviction followed on the basis of the
statement recorded by the custom officer purported
to be under Section 108 of the Customs Act of the
accused. In view of the judgment referred
hereinabove, in the facts of the case, the court
has to scrutinize the statement made to a non-
police personnel, thus the court has to be
satisfied in such cases that the inculpatory
statement recorded was not by any inducement,
threat or promise.
33. The provisions of power of search, the competency
of the person making search, arrest and power of
arrest Sections 101, 102, 104 and 106 of the
Customs Act are reproduced for ready reference,
which were prevailing at the relevant time.
“101. Power to search suspected
persons in certain other cases.–
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provisions of section 100, if an
officer of customs empowered in this
behalf by general or special order of
the Principal Commissioner of Customs
or Commissioner of Customs, has reason
to believe that any person has
secreted about his person any goods of
the description specified in sub-
section (2) which are liable to
confiscation, or documents relating
thereto, he may search that person.
(2) The goods referred to in sub-
section (1) are the following:–
(a) gold;
(b) diamonds;
(c) manufactures of gold or diamonds;
(d) watches;
(e) any other class of goods which the
Central Government may, by
notification in the Official Gazette,
specify.
102. Persons to be searched may
require to be taken before gazetted
officer of customs or magistrate.–
(1) When any officer of customs is
about to search any person under the
provisions of section 100 or section
101, the officer of customs shall, if
such person so requires, take him
without unnecessary delay to the
nearest gazetted officer of customs or
magistrate.
(2) If such requisition is made, the
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officer of customs may detain the
person making it until he can bring
him before the gazetted officer of
customs or the magistrate.
(3) The gazetted officer of customs or
the magistrate before whom any such
person is brought shall, if he sees no
reasonable ground for search,
forthwith discharge the person but
otherwise shall direct that search be
made.
(4) Before making a search under the
provisions of section 100 or section
101, the officer of customs shall call
upon two or more persons to attend and
witness the search and may issue an
order in writing to them or any of
them so to do; and the search shall be
made in the presence of such persons
and a list of all things seized in the
course of such search shall be
prepared by such officer or other
person and signed by such witness.
(5) No female shall be searched by any
one excepting a female.
104. Power to arrest.–
(1) If an officer of customs empowered
in this behalf by general or special
order of the Commissioner of Customs
has reason to believe that any person
in India or within the Indian customs
waters has been guilty of an offence
punishable under Section 135, he may
arrest such person and shall, as soon
as may be, inform him of the grounds
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for such arrest.
(2) Every person arrested under sub-
section (1) shall, without unnecessary
delay, be taken to a magistrate.
(3) Where an officer of customs has
arrested any person under sub-section
(1), he shall, for the purpose of
releasing such person on bail or
otherwise, have the same powers and be
subject to the same provisions as the
officer-in-charge of a police-station
has and is subject to under the Code
of Criminal Procedure, 1898 (5 of
1898).
(4) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (5 of 1898), an
offence under this Act shall not be
cognizable.
106. Power to stop and search
conveyances.–
(1) Where the proper officer has
reason to believe that any aircraft,
vehicle or animal in India or any
vessel in India or within the Indian
customs waters has been, is being, or
is about to be, used in the smuggling
of any goods or in the carriage of any
goods which have been smuggled, he may
at any time stop any such vehicle,
animal or vessel or, in the case of an
aircraft, compel it to land, and–
(a) rummage and search any part of the
aircraft, vehicle or vessel;
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(b) examine and search any goods in
the aircraft, vehicle or vessel or on
the animal;
(c) break open the lock of any door or
package for exercising the powers
conferred by clauses (a) and (b), if
the keys are withheld.
(2) Where for the purposes of sub-
section (1)–
(a) it becomes necessary to stop any
vessel or compel any aircraft to land,
it shall be lawful for any vessel or
aircraft in the service of the
Government while flying her proper
flag and any authority authorised in
this behalf by the Central Government
to summon such vessel to stop or the
aircraft to land, by means of an
international signal, code or other
recognized means, and thereupon, such
vessel shall forthwith stop or such
aircraft shall forthwith land; and if
it fails to do so, chase may be given
thereto by any vessel or aircraft as
aforesaid and if after a gun is fired
as a signal the vessel fails to stop
or the aircraft fails to land, it may
be fired upon;
(b) it becomes necessary to stop any
vehicle or animal, the proper officer
may use all lawful means for stopping
it, and where such means fail, the
vehicle or animal may be fired upon.”
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34. PW1 Harishkumar Ratilal Thakur was the Assistant
Custom Collector (Preventive) on 6.8.1989. The
evidence recorded at Ex.92 suggests that on that
day, they had received information that two
persons taking gold were passing near Raipur
Darwaja so the witness had made arrangement at the
office and they were intercepted. According to the
witness, information regarding the scooter number
must have been received and stated that in the
office, when the search was made, the gold stripe
was found with the pillion rider, which was seized
by the officer by way of panchnama.
35. As per the evidence of this witness, the Collector
on reading the record had given him sanction to
file complaint under Gold Control Act and the
Custom Act. The witness identified the signature
of Shri Virendrasinh and adduced the documents in
evidence at Ex.93-94. The witness identified his
signature on Ex.30-his complaint and stated in
examination-in-chief that he had not recorded any
statement nor had drawn panchnama.
36. In cross-examination, the witness stated that he
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has no personal knowledge of the facts stated in
the examination-in-chief and has given those facts
on the basis of the record.
37. Regarding the information received, the witness
stated that he is not in a position to produce the
information so recorded. According to him, the
information was received by M.P. Shah, Inspector.
38. The witness has admitted of receiving telegram
from Parul Pacchigar which was replied under his
signature. The reply was produced at Ex.95. The
witness has also admitted of a telegram from
Advocate H.C. Kapadia for accused Rakesh Chandulal
Soni (A2) which was introduced in evidence at
Ex.96. The witness in letter at Ex.97 stated that
before writing Ex.97, he has not inquired
regarding the telegraph. According to the witness,
show cause notice was given to all the accused.
39. The witness does not remember whether accused no.4
had given a letter to their department. He does
not remember that the statement and signature were
forcefully taken.
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40. In cross-examination, the telegram of Jitendra
Kantilal dated 7.8.1989 and 8.8.1989 were
referred. The office copy bearing his signature
was produced at Ex.100. The witness deposed that
he had made no personal inquiry, but had relied on
his officer.
41. The original application of Parul Pacchigar was
produced at Ex.101. Witness affirmed of
application of accused Rakesh received from jail
with jail forwarding letter which was put in
evidence at Ex.102 and 103. Telegram of Advocate
H.C. Kapadia was produced at Ex.104 and 105.
42. The witness clarified in the evidence that the
show cause notice was not given till the
complaint. From the complaint, the witness stated
that it becomes clear that till the date of
complaint, they had not received the Mint Master
report.
43. So the noticeable fact is that this witness is
merely a complainant but has no personal
knowledge. He had relied on his officers. He has
not recorded any statement nor has drawn any
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panchnama. The witness has produced the telegrams
and letter from the accused or on behalf of the
accused. The glaring evidence is that on the date
of complaint, there was no mint officer report
which is dated 25.10.1989. He also stated that
show cause notice was not given till the
complaint.
44. So far as ‘information’ received, the witness is
not bound to disclose. Section 125 of the Evidence
Act protects the revenue officer, he cannot be
compelled to say the place or source of receiving
information. Section 125 of the Evidence Act is
reproduced hereunder:-
“125. Information as to commission
of offences.- No Magistrate or police-
officer shall be compelled to say
whence he got any information as to
the commission of any offence, and no
revenue officer shall be compelled to
say whence he got any information as
to the commission of any offence
against the public revenue.”
45. The evidence of the witness record the telegrams
for and on behalf of the accused.
46. Telegram Ex.98 is as under:-
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“Time – 1932 Date – 7/8
COMMISSIONER OF POLICE, SHAHIBAG,
AHMEDABADBROTHER NARENDRA KANTILAL TAKEN AWAY
BY CUSTOMS FORCEBILY YESTERDAY AT NOON
STILL NARENDRA NOT RELEASED ILLEGALLY
DETAINED. HE COMPLAINT BEARING AND ILL
TREATMENT WE FEAR MORE ILL TREATMENT
AND ILLEGAL ACT BY CUSTOMS. NARENDRA
IS INJURED DO NEEDFUL AND INQUIRE.
=JEETENDRA KANTILAL”
Ex.99 reads as under:-
“Time – 1506 Date – 7/8
COLLECTOR OF CUSTOMS, CUSTOMS HOUSE,
NAVRANGPURA, AHMEDABADBROTHER NARENDRA KANTILAL FORCEBILY
TAKEN TO CUSTOMS OFFICE YESTERDAY AT
NOON I SOW HIM IN EVENING HE COMPLAINT
ILL TREATMENT AND BEATING WHICH WAS
SUPPORTED BY HIS APPEARANCE CUSTOMS
INSPECTOR REQUESTED NOT TO PROCEED AS
THEY WANTED TO HUSH THE WHOLE CASE.
-JEETENDRA KANTILAL”
47. Ex.96 – Telegram is reproduced:
“7/8 46/49
The Assistant Collector Customs,
Customs House, Navrangpura, Ahmedabad-
9.
My client Rakesh Soni illegally
detained since 11-00 A.M. 6-8-89 was
to be produced today. Till 08-30 p.m.Page 53 of 108
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not yet produced Advocate and family
members not allowed to see. Mahendra
Kapadia Advocate”
48. Bail application of accused no.2 Rakesh Chandulal
Soni was filed on 7.8.1989 and bail application of
accused no.1 Rajendra Natwarlal Soni was filed on
8.8.1989. In the bail application, accused no.2
had alleged of forceful signature on certain
statement and that signature was taken on
photograph of a person not known to him and even
has prayed for treatment from Civil Hospital
alleging that he was subjected to physical and
mental harassment, while for Rajendra Soni (A-1),
it was urged that he was not provided with primary
need nor was given food nor was allowed to sign
Vakalatnama.
49. Bail application of Dilip Soni (A-3) was on
11.8.1989 and of Narendra Kantilal Soni (A-4) was
filed on 14.8.1989.
50. According to the witness PW1, they had information
regarding accused no.1 and 2. After both of them
were brought at their office by the officer, as
per the witness both were sent to Superintendent
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Preventive. The witness had not inquired whether
both were brought under arrest. The complaint was
registered on 16.9.1989.
51. Witness no.2 Girdharlal Mohanlal Trivedi stated
that on 9.8.1989, he was serving as Custom Godown
Keeper at Ahmedabad. As per his evidence, at that
time, the Superintendent Preventive in custom was
B.M. Rohit. On 9.8.1998, PW2 was given a sealed
packet with inventory. The entry in Muddamal
register as 4/155/89 dated 9.8.1989 bears his
signature as receiver and the signature of
Superintendent Preventive of Custom B.M. Rohit as
of depositor.
52. Thus, from the evidence of PW1 and PW2, both the
accused no.1 and 2 were sent to Superintendent
Preventive of Custom, who had deposited the gold
Muddamal with PW2. At the relevant time, Shri B.M.
Rohit was the Superintendent Preventive.
53. On 14.9.1989, PW2 had made an application Ex.108
to the Magistrate for the goods. On 15.9.1989,
Magistrate visited the godown. Inventory Ex.109
was prepared by Magistrate Mr. Mewada. Photographs
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in presence of panchas were taken. The packet was
opened to have found five gold stripes of
different weight, out of that one stripe was
removed as sample and placed in another packet and
rest of the four were put in the packet and
sealed. The witness said that rest of the Muddamal
was again deposited in the godown.
54. During the course of the deposition, the seal
packet was opened in the Court. In the evidence,
the witness deposed that there were no foreign
mark or marks on the gold stripes. He further
stated that there is no signature of officer Rohit
on the application for seizing.
55. The witness stated that he was only Superintendent
of godown disposal. He has not received order or
notification under Section 2(34) of the Customs
Act. He had taken the Muddamal in seal packed
condition from Shri Rohit Kumar.
56. In the cross-examination, witness stated that on
9.8.1989, he was not working as Godown
Superintendent but was only in-charge. He has
denied that he has signed as in-charge godown
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keeper on Ex.107.
57. This witness has no information about any order
from the Collector. He had not received any
written order. He neither have any information of
any permission of Mint Master for disposal of
Muddamal between 9.8.1989 to 14.8.1989.
58. Here the witness has not received the Muddamal as
Superintendent of Godown. The fact is that Shri
Rohitkumar is a person who had handed the Muddamal
to him but he has not received the same as godown
keeper.
59. Rohit Kumar i.e. B.M. Rohit, superintendent
Preventive of Custom is the person from whom PW1
received the gist of secret information, wherein
no names of accused no.1 and 2 reflected. B.M.
Rohit handed over the Muddamal to PW2, who was not
the person entitled to receive it. He was not
working as Godown Superintendent, B.M. Rohit has
not been examined. Nothing is coming on record
about the ‘proper officer’ who had belief that the
seized goods were smuggled gold. The reasonable
belief must be of the officer who seized the
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articles and who is empowered to seize under
Section 110 of the Act. Why Mr. B.M. Rohit had
gone to deposit the gold at the godown is not
coming on record. PW2 had not received any order
or notification in terms of Section 2(34) of the
Act. There is nothing on record that Shri B.M.
Rohit was the gazetted officer specially empowered
to have the possession of seized gold, which was
liable to confiscation.
60. Section 2(34) of the Custom Act as was prevalent
during the course of the present matter reads as
under:-
“2(34) ― “proper officer” in relation
to any functions to be performed under
this Act, means the officer of customs
who is assigned those functions by the
Board or the Collector of Customs;”
61. Section 2(34) clarifies that the proper officer
would be the one who has been assigned function to
be performed under the Customs Act by the Board or
Collector of Customs. Section 2(8) states that
Collector of Customs include an Additional
Collector of Customs. Section 2(39) defines
smuggling in relation to any goods, means any act
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or omission which will render such goods liable to
confiscation under Section 111 or Section 113 of
the Customs Act.
62. Section 111 is with regard to confiscation of
improperly imported goods etc. Section 113 is
about confiscation of goods attempted to be
improperly exported etc.
63. In Union of India v. Abdulkadar Abdulgani Masmani,
reported in 1985 CriLJ 329, a judgment by Division
Bench of this Court, it has been noted in context
of Section 123 of the Customs Act dealing with
burden of proof shifting on accused in certain
cases, the Division Bench has dealt with the
‘officer’ who should be considered as ‘proper’ in
terms of Section 2(34) of the Customs Act. The
observation of relevant Paragraphs 16 and 25 of
the said judgment are as under:-
“17. Dhirajlal Muljibhai, P.W. 6,
Exhibit 16 was serving as the
Superintendent of Customs as the
relevant time. Vahidkhan was serving
under him. Dhirajlal is a Gazetted
Officer as per his say, but there is
nothing on record to show thatPage 59 of 108
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Vahidkhan was a Gazetted Officer. A
Gazetted Officer of the Customs has
got powers under Section 108 of the
Act to summon any person and make
inquiry. But simply because he may be
a Gazetted Officer, he is not
authorised to search or seize the
goods unless it is shown that he is
specially empowered by name by the
Board as required by Section 105 of
the Act. Section 110 of the Act also
says that it is only the proper
officer who has reason to believe that
any goods are liable to confiscation
under the Act who can seize the goods.
There is nothing on record to show
that either this Superintendent or the
Inspector Vahidkhan was the proper
officer. It may be recalled here
that Section 2(34) says that “proper
officer”, in relation to any functions
to be performed under Act, means the
Officer of Customs who is assigned
those functions by the Board or the
Collector of Customs. There is nothing
on record to show that either the
Superintendent Dhirajlal or the
Inspector Vahidkhan was assigned these
functions either by the Board or by
the Collector of Customs. Dhirajlal,
Exhibit 16, says that he supervised
the search which was carried out by
the Inspector Vahidkhan. According to
this Dhirajlal, he recorded statements
of the accused under Section 108 of
the Customs Act. We shall discuss at a
proper time, in light of the decision
of the Supreme Court in the case
of Balkrishna v. State of West
Bengal (supra) whether the statementsPage 60 of 108
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which were recorded by Dhirajlal can
be said to have been recorded
under Section 108 of the Customs Act.
In cross-examination, he admitted that
except experience there was no
technical training given to them for
ascertaining the quality of the cloth.
He stated that only from the foreign
markings and texture he was in a
position to say that it was of foreign
origin. He also admitted that it was
not possible to describe in words what
is meant by “texture” but it can be
said only by experience. He was asked
whether the mills in India used to
manufacture cloth having the same
texture and he replied that he had not
seen any such cloth. He admitted that
no expert was there in their office to
test the cloth. He admitted that ATIRA
was a well-known laboratory for
testing such cloth but it was not set
to ATIRA for opinion. He was not in a
position to explain why the cloth was
not sent to ATIRA for analysis and
opinion. He admitted that if cloth is
shown to him, he will not be in a
position to say as to what the
percentage of which yarn in the said
cloth. He admitted that some at
Ahmedabad manufacture synthetic cloth.
He admitted that he had no occasion to
compare such cloth of foreign origin
with that manufactured by mills in
India. He stated that by having a
touch by fingers the quality can be
ascertained, but again admitted that
he cannot say by seeing and touching
such cloth manufacture by Reliance
Textiles and Ambica Mills thePage 61 of 108
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difference between the texture. He
admitted that synthetic yarn is
permitted to be imported on permit and
cloth is prepared from the same. He
admitted that if a piece of cloth
manufactured in Japan and another
piece manufactured in Formasa were
shown to him without markings on the
same, he will not be in a position to
say which was of Japan make and which
was of formasa make. He admitted that
one cannot say by having a touch as to
whether a particular cloth was
manufactured in England or China or
Japan or in a particular country. He
stated that the investigation was
carried on as per the instructions of
the Assistant Collector but also
admitted that no written instructions
were given to him by the Assistant
Collector. He admitted that the case
of the Customs Department was that the
cloth was first imported in Bhuj and
then it was brought to Ahmedabad. He
admitted that it was not their case
that accused Nos. 2, 3, 9 and 10 had
imported the goods in Bhuj nor had
they any such evidence. He also
admitted that he had no evidence to
show that accused Nos. 2, 3, 9 and 10
had brought the goods from Bhuj to
Ahmedabad. He stated in cross-
examination that he had a reasonable
belief that these goods were smuggled
goods and, therefore, the goods were
seized. Now, the Seizing Officer was
Inspector Vahidkhan and not this
Superintendent Dhirajlal and hence his
reasonable belief is not of any
assistance. Vahidkhan also stated inPage 62 of 108
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his evidence that the goods were
smuggled and, therefore, they were
seized. He does not say in so many
words that he seized the goods under a
reasonable belief that they were
smuggled goods, but even if
entertained such a reasonable belief
and on account of the same seized the
goods, the fact remains that there is
no material on record to show that he
was authorised under the Act either to
search or seize the goods in question.
We may mention here even at the cost
of repetition that Section 123 of the
Act shifts the burden on the accused
to prove that the goods are not
smuggled goods only when the goods are
seized under the Act in the reasonable
belief that they are smuggled goods.
In view of this, it is clear that the
reasonable must be of the officer who
seized the articles and who is
authorised to seize. There is no
material on record to show that either
the Superintendent Dhirajlal or the
Inspector Vahidkhan were authorised to
seize these articles under the
Act. Section 110 of the Act, as stated
a little earlier, empowers only the
proper officer to seize the goods if
he has reason to believe that any
goods are liable to confiscation under
the Act. There being no material on
record to show that either the
Superintendent or the Inspector was
the proper officer as per Section
2(34) of the Act, no presumption
under Section 123 of the Act will be
available on seizure of the goods by
the Inspector in the presence of thePage 63 of 108
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Superintendent. Even if the
Superintendent and the Inspector had
acted as per oral directions of the
Assistant Collector as deposed to by
the Superintendent Dhirajlal, then
also it will make no difference
because a Customs Officer can be said
to be “proper officer” only if
particular functions are assigned to
him either by the Board or the
Collector of Customs or Additional
Collector of Customs, as Collector of
Customs includes Additional Collector
but does not include Assistant
Collector of Customs.
25. It is true that in the case
of Gian Chand v. State of
Punjab (supra), the premises were
first searched by a Police Officer and
the goods seized under the provisions
of the Code of Criminal Procedure,
while in the present case the premises
were searched by a Customs Officer and
the goods also seized by a Customs
Officer purporting to act under the
provisions of the Customs Act. But
even then the fact remains that the
said officer was not either authorised
to search or authorised to seize the
goods and hence it follows that the
seizure cannot be said to be under the
Act. In our opinion, it will not make
any difference whether the goods are
seized by a Police Officer or by an
Officer of Customs not authorised to
do so under the Act. In our opinion,
the result would be that such seizure
cannot be said to be a seizure under
the Act as required by Section 123 ofPage 64 of 108
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the Act. Such a seizure cannot be said
to be under the Act but de hors the
Act when the seizure is by an Officer
of Customs not authorised to do so.”
64. The witness PW3 Naranbhai Bhavanbhai has deposed
that on 6.8.1989, he was a gazetted officer. As
per his deposition, the Assistant Preventive
officer had received an information with regard to
Rajendra Natwarlal Shah and Rakesh who were to
pass Raipur Darvaja with 5 ingots each of 10 Tolas
with foreign marks. The inspectors were deputed
for watch and according to him, from one of the
accused, 5 stripes were found from the pant
pockets. At that time the Assistant Collector was
H.K. Thakur. He states that search was done in
accordance to the Customs Act in presence of the
Panchas and from 5 stripes, samples were taken for
examination. The notes were placed on the plastic
bags regarding the purity and weight. Thereafter,
it was placed in a cardboard and packed with paper
and signed by both panchas, accused and custom
officer and the box was sealed. The witness
deposed about the panchnama Mark B. The witness
after perusing the panchnama stated that on 5 gold
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stripes, he could read as ‘9990’ and beneath that
TEN LAS. According to him, the weight and the
value of the stripes were noted in the panchnama
and the weight of the stripes were 582.500 mg. and
the value was noted as 1,71,837. In cross-
examination the witness affirmed that he could see
marking only on one strip. He has affirmed that
the slip of the panchas as was placed at the time
of seizing was not in the box.
65. This witness Naranbhai Bhavanbhai states that on
7.9.1989, he had recorded the statement of Suresh
Parekh under Section 108 of the Customs Act. He
states that he had recorded statement of Dilip
Soni (A3) and Rajendra Soni (A1) and Rakesh Soni
(A2) under Section 108 of the Customs Act. The
witness has further stated that on 8.8.1989 he had
recorded statement of Narendra Soni (A4) under
Section 108 of the Customs Act.
66. The statement of Narendra Soni (A-4) at Ex.141
shows that he is having license being a dealer in
gold and has also given his registration number.
The accused has stated that during 12 months, he
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would purchase gold for about 4 to 6 times and
would show the sale and purchase with the details
of labour charges and labour expenses in his
returns. The accused was questioned about 5 gold
bars converted into stripes and he was questioned
with regard to two gold biscuits and he was
confronted with the question whether accused
Rakesh on 6.8.1989 had come in the morning to him.
The witness in his statement has stated that he
does not know Rakesh Soni and has also denied of
selling foreign mark gold two biscuits at his
house. He has also denied of knowing Rajendra
Soni. He categorically stated that he is in the
business of sale and purchase of gold ornaments.
67. The statement of accused Rajendra Soni (A-1) at
Exh.132 shows that it was recorded on 6.8.1989 and
Exh.129 reflects that the statement of Rakesh Soni
(A2) was also recorded on 6.8.1989. Statement of
Dilip Soni (A3) at Exh.126 reflects that it was
recorded on 7.8.1989.
68. Dilip Soni is accused of converting gold bar into
gold stripes. He has referred to the gold as gold
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biscuits and states that packet was given to him
which was in rectangular form of 5 gold biscuits
and had taken Rs.25 as labour charge. According to
his statement, accused Rakesh and Rajendra had
asked him to operate the gold to such an extent
that the foreign marks gets totally blurred.
According to him, though he had put this gold
biscuits into the electric machine one by one for
the removal of the marks inspite of that the
foreign mark still remained. He was asked to
identify accused Rakesh and Rajendra by way of
photographs and was also asked at the same time to
identify them in person.
69. The retracted statement of Rakesh Soni was placed
on record at Exh.103 where he has alleged of
illegal detention and mental and physical
harassment. Exh.96 is the telegram of advocate
dated 7/8 to Assistant Collector Customs to inform
that his client Rakesh was illegally detained
since 11 a.m. on 6.8.1989 was to be produced at 11
a.m. but till 8.30 p.m., was yet not produced and
advocate and family members are not allowed to see
him.
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70. The bail application of Rakesh Soni was moved on
7.8.1989 on the very next date of the detention of
6.8.1989 shows that on 6.8.1989 at about 11 a.m.,
they were detained by the customs officer. Their
allegation was that they were beaten and prayed to
send for medical treatment in the Civil Hospital
and had also stated of signature taken forcibly on
the documents.
71. From the evidence of this witness, it becomes
clear that the accused were in detention of the
custom officer on 6.8.1989 and 7.8.1989. On
7.8.1989, accused no.1 and 2 were made to identify
by accused no.3
72. The witness PW3 on 6.8.1989 stated that he was a
gazetted officer. Section 108 in the year 1989
permitted any gazetted officer of customs to
summon any person whose attendance the said
gazetted officer considers necessary either to
give evidence or to produce a document or any
other thing in an inquiry which such officer is
making under the Customs Act. Section 108 refers
to power to summon person to give evidence and
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sub-section (3) notes that all persons so summoned
to give true and correct statement. Issuance of
summons for the cause shall give an opportunity to
reflect upon. Any statement or evidence thereafter
would be on proper evaluation of facts, thus any
confessional statement inculpating himself and
other co-accused could be relied upon by the
prosecution as can be termed as given voluntarily.
The statement was recorded on 6.8.1989 of Rajendra
Soni and Rakesh Soni. The statement does not
record that the statement so recorded were under
summons. While the statement of Narendra Soni at
Exh.141 recorded on 8.8.1989 categorically notes
that he was called upon on summons. Narendra Soni
has totally denied of such alleged sale and has
also denied of knowing accused no.1 and 2. His
statement is not of any confession, it is of total
denial. His statement cannot be used against him
or co-accused.
73. The witness PW3 has stated that he had not filled
DRI form for the weight. He could also state that
on examination of Muddamal the mark that could be
seen was only on one stripe. The packet was opened
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in the Court. According to him, he being a customs
officer was present only at the time of seizure
but was not present at the time of search at
Raipur. According to the witness, M.P. Shah, Patel
and Batham had brought the accused before the
officer Thakur but he had not read any report in
accordance to the order of the officer Thakur.
Prior to the search, he was not knowing whether
any written order was passed or not. While reading
the panchnama Mark B, he stated that it could be
read to be noted in the panchnama of 10 Tolas. He
denied the suggestion that on 3 ingots 999 and 5
ingots 10 Tolas are inscribed after they were
pressed. During the course of panchnama, they had
not procured any certificate for the purity of the
gold. He has not produced certificate regarding
the sample sent to mint. As per the witness on the
day when the panchnama was drawn, accused Rakesh
and Rajendra were brought apprehended by the
inspector. The witness denies the suggestion that
on 8.8.1989, Rakesh and Rajendra were not in his
custody. Denying so he stated that there is
nothing like custody and according to him, on
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8.8.1989, he had called Rakesh and Rajendra by
issuing summons. The witness further stated that
he had arrested Rakesh and Rajendra on 6th and on
7th, he had called them by issuing summons. The
witness has admitted the fact that the statement
of Rakesh and Rajendra were recorded on 6th and has
also admitted that no statement was recorded on
7th. Section 108 of the Customs Act mandates
issuance of summons prior to recording of
statement. Accused no.1 and 2 have stated that
they were in illegal detention on the date of
arrest i.e. 6.8.1989. They alleged that their
statements were recorded by subjecting them to
physical and mental harassment. The statement on
record also fortifies the fact that the statement
of accused Rakesh and Rajendra were recorded on
6.8.1989. The very fact of the statement being
recorded on the very same day, and absence of any
summons on record, clarifies the fact that prior
to recording the statement under Section 108 of
the Customs Act, no summons was issued to the
accused.
74. The witness stated that before the statement were
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recorded, the Muddamal was already sealed. It was
not reopened while recording the statement there
was no microscope in their office on the day of
seizure panchnama nor had they brought it on rent,
but had sent to forensic laboratory.
75. In case of Abdulkadar Abdulgani Masmani (supra),
the Division Bench of this Court has laid down the
difference between Sections 107 and 108 to note
that the stage of recording of statement under
Section 108 arises only when an inquiry started
either for confiscation of goods or for imposing
penalty. The words used in Section 108 clarifies
the same and Section 107 takes care of
investigatory emergency.
76. The witness PW3 had made the search in presence of
Panchas and according to him, 5 ingots were
converted into 5 gold stripes of 24 carats purity.
The sample was taken from each of the stripes for
assessment of purity in presence of Panchas by
sealing process. The same witness who had
conducted the seizure is the officer who had
recorded the statement under Section 108 of the
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Customs Act. The evidence itself suggest that on
the date of the arrest, the statement of accused
no.1 and 2 came to be recorded. The sequence of
events itself speaks that the statement so
recorded were not on free will. It is the
prosecution who has to prove that the mandate of
Section 108 of Customs Act was scrupulously
followed.
77. In case of Hasmukh Hargovind Shah (supra), the
Bombay High Court has noted about the evidentiary
value of the statement made to the custom officer
under Section 108 of the Customs Act. The judgment
notes that whether the statement was voluntarily
made needs careful scrutiny. The Court must also
consider possibility of coercion or inducement.
78. In Haroom Haji Abdulla (supra), the Hon’ble
Supreme Court had an occasion to observe that the
Court should be put on caution while dealing with
the statement under Section 108 of the Customs Act
insofar as this statement is distinguishable from
confession recorded by a Magistrate who is
judicial authority and who observes the requisite
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precaution while recording such a statement.
79. In Sundeep Mahendrakumar Sanghavi v. Union of
India, 2021 (2) GLR 1258, the Division Bench of
this court has noted about the constitutional
validity of Section 108 of the Customs Act while
dealing with various judgments as observed in the
judgment in the case of Rajnishkumar Tuli
Proprietor v. State of Gujarat, 2007 (4) GLR 2889
and has considered this aspect as noted therein in
Paragraph 26 as under:-
“26. The Hon’ble Supreme Court has
considered this aspect in the case of
Veera Ibrahim v. The State of
Maharashtra and observed that when the
statement of a person was recorded by
the Customs Officer under Section 108,
that person was not a person ‘accused
of any offence’ under the Customs
Act. An accusation which would stamp
him with the character of such a
person was levelled only when the
complaint was filed against him, by
the Assistant Collector of Customs
complaining of the commission of
offences under Section 135(1) and
Section 135(2) of the Customs Act. It
is, therefore, clear that when the
Summons is issued under Section 108,
he is merely called upon to give his
evidence for departmental proceedings
and, therefore, there is no questionPage 75 of 108
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of it being in violation of Article
20(3) of the Constitution of India.
Similarly, provisions of Section 108
of the Customs Act have also come up
for consideration before the Hon’ble
Supreme Court in the case of Assistant
Collector of Central Excise,
Rajamundry v. Duncan Agro Industries
Ltd. and Ors. wherein it is held that
Section 108 of the Customs Act does
not contemplate any magisterial
intervention. The power under the said
Section is intended to be exercised by
a Gazetted Officer of the Customs
department. Sub-section (3) enjoins on
the person summoned by the Officer to
state the truth upon any subject
respecting which he is examined. He is
not excused from speaking the truth on
the premise that such statement could
be used against him. The said
requirement is included in the
provision for the purpose of enabling
the Gazetted Officer to elicit the
truth from the persons interrogated.
Therefore, the challenge on the ground
of violation of Article 20(3) is
equally untenable. Support can also be
derived from the decision of the
Hon’ble Supreme Court in the case of
Percy Rustomji Basta v. The State of
Maharashtra wherein it is held that a
person summoned under Section 108 of
the Customs Act is bound to appear and
state the truth when giving evidence.
The fact that the petitioners have
chosen not to appear itself is
indicative of the intention of the
petitioners to evade participating in
the investigation process. It cannotPage 76 of 108
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be expected that the department should
adopt a system or practice of going to
different places for the purposes of
recording the statements of the
persons under Section 108 of the Act
during the course of investigation.
For all these reasons, we are of the
view that the provisions contained in
Section 108 of the Customs Act are in
accordance with the constitutional
principles and they are not violative
of either Article 14 or 20(3) of the
Constitution of India.”
80. The confessional statement recorded under Section
108 of the Customs Act should be a voluntary
statement. The court is therefore required to
consider the possibility of coercion or inducement
further to examine corroboration with regard to
statement recorded which could distinctly show
that the statements were voluntarily given by the
accused and under the Customs Act.
81. The prosecution is entitled to rely upon the
statement of the accused recorded during the
investigation but must prove that the statements
recorded were voluntarily given. The statements
cannot be procured by way of coercion, assault or
illegal detention and in such circumstances, such
statement cannot be termed as voluntary. The
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confessional statement cannot be made a sole basis
for conviction without any corroboration from
independent and distinct evidence. The evidence
recorded of PW3 does not prove that it was
voluntarily given. Without any evidence of summons
on record, there is no corroborative evidence to
show for what purpose, the accused were asked to
give their statement under Section 108 of the
Customs Act. All persons who are summoned in
accordance with the provision are bound to attend
the officer and are bound to state the truth upon
the subject respecting to which they are examined
or making statement and produce such documents and
other things as may be required. Such exercise can
only be done on issuance of the summons which
would clarify the cause of issuance of summons.
Here in this case the statement recorded of
accused no.1 and 2 is not preceded by any summons
on record. The very detention, and the evidence on
record by way of telegrams made by the advocates
and the family members of the accused coupled with
the fact of the bail application moved itself
proves on record that they were in detention of
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the officer.
82. Reliance was also placed on the statement of the
co-accused for justifying the conviction of the
Trial Courts.
83. In Haroom Haji Abdulla (supra), the Hon’ble
Supreme Court has noted that Section 30 of the
Evidence Act could be applicable only if such
statements are given voluntarily. Section 30 of
the Evidence Act is for the consideration of the
proved confession affecting persons making it and
thus jointly under trial for the same offence. The
confession of the co-accused are required to be
proved to have been voluntarily given for invoking
provision of Section 30 of the Evidence Act. The
Hon’ble Apex Court has noted in the judgment that
the confession entitled to be used against the co-
accused stands on a lower level than accomplice
evidence because the latter is at least tested by
cross-examination while the former is not. For the
retracted confession of the co-accused evaluating
the value, the court has observed in Paragraph 11
as under:-
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“A retracted confession must be looked
upon with greater concern unless the
reasons given for having made it in
the first instance (not for retraction
as erroneously state on some cases)
are on the face of them false. Once
the confession is proved
satisfactorily any admission made
therein must be satisfactorily
withdrawn or the making of it
explained as having proceeded from
fear, duress promise or the like from
some one in authority. A retracted
confession is a weak link against the
maker and more so against a co-
accused.”
84. PW4 is the witness who stated that on 6.8.1989, he
was serving as an inspector. He was called at
about 11 a.m. by the superintendent N.B. Rohit.
According to the witness, search proceedings and
panchnama was drawn. As per the witness in the
cabin of Shri Rohit in presence of panchas, the
identification of the accused no.1 and 2 were done
and in presence, search was conducted. Nothing
objectionable was found from Rakesh (A-2) while 5
stripes of yellow colour was found from the
internal pocket of the pant of Rajendra (A-1). The
witness states that the panchnama was drawn in
presence of Shri Rohit which is placed at Mark B.
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The contradiction which comes on record is from
this witness and witness no.3 who stated that the
seizure was done by him by the panchnama Mark B.
While according to this witness, panchnama Mark B
was drawn in presence of Shri Rohit. On 7.8.1989,
the Assistant Collector Mr. Thakur had called them
about 1.30. He was informed by the Collector that
the seized packet was to be taken to the FSL and
he took the packet to the FSL officer, Ahmedabad
where the panchas were called and in presence of
K.C. Ibrahim, seizure and examination was done. As
per the witness, since nothing could be read with
the bare eye and only part could be read and
therefore, he asked to file a report. The packet
was opened and the stripes were removed in
presence and was again repacked and sealed. The
report of the laboratory received was placed on
the record during the trial at Exh.159. The
witness PW4 stated that the sample from each 5
stripes were taken to be sent to the mint.
85. The witness very categorically stated on observing
Muddamal gold stripes that the markings could not
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be seen with bare eyes. He stated that except
drawing the panchnama, he has done no other work.
He has reaffirmed that the panchas were present in
the office of Shri Rohit and he has no information
as to who had called them. The panchnama started
from morning 11.30 and ended at 5.30 p.m.
86. PW5 Arvind Virjibhai Soni, panch witness was
examined to verify the panchnama Mark A and stated
that he has not dictated the panchnama. The
officer had not asked them any question nor have
noted any answer but had merely taken the
signature. The witness was shown the panchnama for
refreshing the memory but was not supporting the
prosecution and therefore, declared as hostile. In
the cross-examination the panch witness has stated
that he could not verify as to whether the packet
which was shown to him was the one which was
registered in godown but has stated in his cross
that he was informed that the sample was taken
from the gold stripes.
87. PW4 also corroborates the fact that the panchnama
Mark B was drawn in presence of Mr. Rohit while
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PW3 has given the evidence to the effect that he
had drawn panchnama Mark B. Evidence of PW1 and
PW2 along with the evidence of PW4 shows that
officer B.M. Rohit was continuously present in all
the proceedings. That officer has not shown his
presence anywhere in the proceedings, though as
per the referred evidence he was the officer who
was instructing them and directing the whole
process.
88. The witness PW5 Joseph Symon D’Cruise,
Superintendent Customs Preventive was examined at
Exh.191. He states that he was a gazetted officer.
According to the evidence, he has recorded
statement of K.I. Parihar on 20.11.1989, Manager
of Hotel of Ramkrishna K. Jain. The statement was
put in evidence at Exh.192. He has also recorded
the statement of one Dr. Suryakant Sharma on
12.10.1989 and has also recorded the statement of
one inspector S.K. Verma which was produced in
evidence at Exh.193. The statement recorded on
9.10.1989 of Anand Jain was put in evidence at
Exh.194, statement of Ajgarali Diwan, Manager was
recorded on 19.9.1989 and was placed in evidence
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at Exh.195 and has also produced in evidence the
certificate of Mint Master at Exh.196 to 201. The
witness was put to cross-examination for the
statement at Exh.197 to 207 and he stated that the
certificate does not state of any marks further
clarifying the witness stated that it was sent
only for the report with regard to purification of
the Muddamal. The witness further stated that he
has no information since he had not seen Muddamal.
The witness further stated that the seizure work
can be done by Shri Rohit. He stated that as and
when he received the documents for the
investigation, he had submitted it to Mr. Amin. He
stated that he knew that the complaint was already
registered on his investigation and the seizure.
He stated that there was an oral instruction from
Mr. Amin to continue the investigation.
89. He was given oral instructions with respect to
Mahesh Kantilal Soni (A-5) to verify whether
actually he was out of station or not. According
to the witness, he had not made any report in
context with Mahesh Soni who has been discharged
in the present matter. Except the documents with
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regard to hotel, he had not received any other
documents from Shri Amin in connection with the
complaint. As per him he has recorded the
statement of accused no.5 Mahesh Soni. Apart from
that he has not made any further investigation.
The mint master certificate was received by the
Assistant Collector Customs but the witness does
not recollect the name of the Assistant Customs
Collector. Referring to the record, he stated that
it was Shri Amin. He was not present when the seal
cover received from the mint master was opened by
Mr. Amin. His investigation was only concentrated
with regard to the accused Mahesh Soni. He has
denied the suggestion that he and only Shri Rohit
has done the investigation with regard to seizure.
He has shown his ignorance of any investigation by
any other officer. Thus, this witness was examined
only for the investigation in connection with the
discharge accused Mahesh Soni and for the fact of
receiving the mint master certificate, but witness
does not have knowledge of the content of the
certificate. The allegation of purchasing 3 gold
bars from Mahesh Soni thus does not get
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corroborated and proved. The prosecution has to
prove not only the adoption of process and
procedure as per law but has also to prove that
the gold bar alleged are smuggled goods liable to
be confiscated under Section 111 or Section 113 of
the Act.
90. The accused no.4 Narendra Soni’s statement was
recorded under Section 108 of the Customs Act by
issuing the summons. Accused Narendra Soni has
stated that he was holding a license under the
Gold Control Act. He has denied of knowing accused
no.1 and 2 and has even denied of any sale of two
gold biscuits to accused no.2 Rakesh Soni. The
witness stated that he regularly files his return
with regard to sale and purchase of gold. Section
34 of the Gold Control Act provides the sale or
delivery of gold by a licensed dealer or certified
goldsmith. Section 34 reads as under:-
“34. Sale or delivery of gold by a
licensed dealer or certified
goldsmith.-
(1) A licensed dealer may sell,
deliver, transfer or otherwise dispose
of or agree to sell, deliver, transferPage 86 of 108
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or otherwise dispose of ornaments to
any person.
(2) Save as otherwise provided in this
Act, no licensed dealer shall
(a) sell, deliver, transfer or
otherwise dispose of or agree to sell,
deliver, transfer or otherwise dispose
of, or
(b) expose or offer for sale,
delivery, transfer or disposal-
(i) primary gold to any person other
than a licensed dealer or refiner or
certified goldsmith,
(ii) any article to any person other
than a licensed dealer or refinerProvided that a licensed dealer shall
not sell or transfer primary gold to
any other licensed dealer or to any
certified goldsmith in any form except
in the form of standard gold bars.
(3) Notwithstanding anything contained
in sub-section (2), a licensed dealer
may sell or deliver primary gold or
article to any person in pursuance of
an authorisation made by the
Administrator or on production by that
person of a permit granted by the
Administrator in this behalf.”
91. The sale or delivery of the goods by license
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dealer is permissible in the form of standard gold
bars. Section 19 deals with the standard gold bar
to be stamped. Section 19 is reproduced
hereunder:-
“19. Standard gold bar to be stamped.-
(1) Every licensed refiner, who
makes, manufactures or prepares
standard gold bars shall put a stamp
on each such gold bar certifying its
purity and such stamp shall also
contain such other particulars as may
be prescribed.
(2) No stamp referred to in sub-
section (1) shall be used in stamping
any standard gold bar unless such
stamp has been approved by the
Administrator.”
92. Section 21 deals with the sale or delivery of
goods by a refiner. The said section reads as
under:-
“21. Sale or delivery of gold by a
refiner.- Save as otherwise provided
in this Act, no licensed refiner shall
sell, deliver, transfer or otherwise
dispose of gold in any form, other
than in the form of standard gold bars
and no such sale, delivery, transfer
or disposal shall be made to any
person other than a licensed dealer orPage 88 of 108
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refiner or certified goldsmith:
Provided that a licensed refiner may
sell standard gold bars to any person
on production by that person of a
permit granted by the Administrator in
this behalf or to such other person as
the Administrator may authorise in
this behalf.”
93. This section thus refers that licence refiner and
licence dealer or certified goldsmith can deal
with the gold by way of sale or transfer in the
form of standard gold bars. The restriction is
thus on the sale of primary gold by licence dealer
to any other licence dealer or to any other
goldsmith. Such transfer can only be in the form
of standard gold bars. Primary gold is defined
under Section 2(r), which reads as under:-
“2(r) “primary” gold means gold in
any unfinished or semi-finished form
and includes ingots, bars, blocks,
slabs, billets, shorts; pellets, rods,
sheets, foils and wires;”
94. While the gold is defined under Section 2(j) as
under:-
“2(j) “gold” means gold, including
its alloy (whether virgin, melted orPage 89 of 108
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re-melted, wrought or unwrought), in
any shape or form, of a purity of not
less than nine carats and includes
primary gold, article and ornament.”
95. As per the statement noted of accused no.2, he is
running a firm known as M/s. Nainesh Chandulal
Soni while accused no.1 was having a firm in his
own name.
96. The witness PW7 Bharat Kapilray Mistri, FSL
Officer, Ahmedabad who was serving at Ahmedabad on
7.8.1989 states that at that time, the Assistant
Director was Dr. K.C. Abraham. 5 stripes were
given for the examination from Assistant Customs
Collector Preventive. Abraham had given him to
examine whether the writing on the stripes were
readable and what was the writing. He had weighed
all the 5 stripes. The witness had given the
weight of all the individual stripes in his
evidence. According to him, to read the writing on
the stripes, he had used stereo microscope and
grazing incident lite and under the microscope,
could read the design and in the report, he has
shown the shape of the design and below each
shape, he has put his signature. The writing which
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he could read has been shown in the report and as
per this witness, he could read on each stripes
9990 and which he says that it shows the purity of
the gold and further he could read SYJSSE and
further states that he could read 10 Tolas on the
Muddamal. In the cross-examination, the witness
had answered that he doesn’t know whether on
foreign gold ‘Tolas’ would not be inscribed and
that practice of Tolas is only in India. The
witness stated that he himself had examined
Muddamal under stereo microscope. He states that
he has the letter which was sent for examination
asking for a report, but does not remember whether
there was any clarification for not forwarding it
to mint, nor could say that since it cannot be
tested at central laboratory and therefore, it was
sent to them. The deposition of this witness
clarifies that the Muddamal which was seized did
bear the mark of ‘Tola’. The fact of foreign mark
on the gold could not be proved by this witness.
97. Another witness Somalal Maganlal Patel who is in
the business of gold and silver was examined as
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PW8 who was called to prove Mark B. The panchnama
was put in evidence only to the extent of his
signature. At Exh.327 he has denied all the
suggestions put by the Public Prosecutor after he
was declared hostile.
98. Ex.159 dated 8.8.1989 is a report of the FSL,
Ahmedabad. On examining one sealed parcel bearing
seal of the Collector (EXM CUS), Ahmedabad, the
report says that the parcel contains 5 stripes
(Pattas) of Mark as 1 to 5 and observed the
markings on stripe no.1 in a round circle as
‘CPEDI 9990 SU SSE 10 U_AS’ and in stripe no.2,
within the round circle ‘CPEDI 9990 SUISSE 10 |
U_AS’. In stripe no.3, within the round circle
‘CPEDIT 9990 SUISSE 10 |O_AS. In stripe no.4,
within the round circle ‘CPEDI 9990 SU SSE 10 O_AS
and in stripe no.5, within the round circle,
‘CPEDI 9990 10 O_AS’ have been noted.
99. While the Indian Government Mint, Bombay report
dated 3.9.1989 from Ex.197 to 201 records the
finest of the sample as 998.8, 998.9, 999.0,
999.1, 999.0 respectively.
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100. The statement recorded of the accused does not
appear to be voluntarily given. The prosecution
has failed to produce summons if any issued to the
accused. The facts of the case itself suggest that
there would not have been any issuance of summons
by the authorized officer as contemplated under
Section 108 of the Customs Act since the statement
of accused no.1 and 2 were recorded on the very
same day i.e. 6.6.1989. Accused no.3 Dilip Soni’s
statement would also bear no importance as the
prosecution has also failed to prove that he was
called by summons for the recording of the
statement. The statement of Dilip Soni recorded on
7.8.1989 notes that he was given the understanding
regarding the provision of Section 193 of the
Customs Act but the statement does not record any
issuance of summons, as has been noted in the
statement of accused no.4 Narendra Soni. There
were identification of accused no.1 and accused
no.2, but no identification of the gold stripes
were done. The identification of the stripes could
have clarified the conversion from bars to stripes
and further the identification of the marks by
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accused no.3 could have supported the FSL report
and mint report. Accused no.3 is shown to be a
labourer at Parekh Jewelers. The owner of Parekh
Jewelers has not been examined in the present case
to even corroborate the voluntariness of the
statement of this accused.
101. Section 5 of the Customs Act provides about the
powers to be exercised and about discharge of the
duties, such powers are to be exercised or duties
to be discharged as conferred or imposed under the
Act, but it is subject to the conditions and
limitations imposed by the Board.
102. Section 123 of the Act is about the burden of
proof. The Section requires a mention, which reads
thus:-
“123. Burden of proof in certain
cases.–
(1) Where any goods to which this
section applies are seized under this
Act in the reasonable belief that they
are smuggled goods, the burden of
proving that they are not smuggled
goods shall be–
(a) in a case where such seizure is
made from the possession of anyPage 94 of 108
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person,–
(i) on the person from whose
possession the goods were seized; and
(ii) if any person, other than the
person from whose possession the goods
were seized, claims to be the owner
thereof, also on such other person;
(b) in any other case, on the person,
if any, who claims to be the owner of
the goods so seized.
(2) This section shall apply to gold,
diamonds, manufactures of gold or
diamonds watches, and any other class
of goods which the Central Government
may by notification in the Official
Gazette, specify.”
103. In Abdulkadar Abdulgani Masmani & Ors. etc.
(supra), it has been held that Section 123 of the
Act shifts the burden on the accused to prove the
goods are not smuggled goods only when the goods
are seized under the Act in the reasonable belief
that they are smuggled goods. The reasonable
belief must be of the officer who seized the
articles and who is authorised to seize. It is the
proper officer who can seize must have reason to
believe that goods are liable to confiscation
under the Act.
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104. Here in the instant case, the three police
officials who intercepted accused no.1 and 2 at
Raipur Darwaja whether had any power to stop and
search the scooter has not been proved. Section
106 of the Customs Act gives such power to stop
and search the vehicle only to proper officer. The
interception of vehicle and accused no.1 and 2 at
Raipur Darwaja was not by authorised officer.
Section 100 of the Customs Act also gives power to
only proper officer to search suspected persons
when the proper officer has reason to believe that
the person has secreted about his person, any
goods liable to confiscation.
105. There is no panchnama drawn at Raipur Darwaja. The
accused no.1 and 2 were taken at the Custom Office
at Navrangpura. PW1 the complainant was at the
post of Assistant Custom Collector (Preventive).
According to his evidence, on 6.8.1989, he had
received the information. The information in
writing had come to his officer and sealed cover
was sent to him. As per his evidence, it was gist
of information and after recording about the
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summary on that day itself, he returned the page
to the Superintendent Preventive. The witness does
not know who was the Superintendent Preventive on
that day. The witness says that in the gist of the
information, there were no name of the two
persons. He had named both the accused from the
record.
106. This witness had sent both the accused no.1 and 2
to Superintendent Preventive. Both the accused
were brought before him by one M.B.Shah and
another person whose name the witness does not
remember. He had not even inquired why they were
brought nor knows about the panchnama.
107. In this set of facts and events, it appears that
this witness has not given facts which he was
bound to know. The accused were not named in the
secret information. The witness does not know the
name of the Superintendent Preventive to whom he
had forwarded both the accused. His evidence
clarifies that the complaint on 16.9.1989 did not
make mint officer report as part which was
received on 25.10.1989. The scientific evidence
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about the gold seized was not available on record
on the date of complaint.
108. The witness PW2 stated that entry no.4/135/89 in
Ex.107 godown register was entered on that day. He
affirmed that Ex.107 does not bear description of
the State of the packet and what was there on the
packet when given to him by Rohit.
109. The Muddamal was opened in the court during the
course of evidence of PW2. He deposed that after
15.9.1989, the packet was opened for the first
time. He further stated that from 9.8.1989 to
15.9.1989, the packet was never opened. On
15.9.1989, the packet was sealed. He stated that
the newspaper on the packet was placed on
15.9.1989. He has no idea about the newspaper of
December, 1989. As recorded earlier on 14.9.1989,
this witness had made an application Ex.108 to the
Magistrate. On 15.9.1989, Magistrate visited the
godown, inventory Ex.109 was prepared. Photographs
were taken. Packets found five gold stripes and
sample was taken.
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110. The witness Pravin Mevada PW6 is the person who
was serving as Circle Officer, Sarkhej and
Executive Magistrate City Mamlatdar office on
14.9.1989. He states that at that time, the
Customs Department, Ahmedabad for disposal used to
often call him, on 14.9.1989, he received
application no.22/89 from Customs Superintendent
for the disbursement of the Muddamal as well as
for taking the samples. He had gone on 15.9.1989
where customs officer Shri Trivedi produced
inventory Ex.109. He has referred to the inventory
which was done regarding the sample and according
to him, out of 5 stripes, one stripe was taken as
a sample. Mark ‘A’ panchnama was shown to the
witness which was on the record in carbon copy
format. The witness states that he could not say
as to where the original is. The inventory Exh.109
was prepared by the Customs Department, and
according to him, he himself had not made any
examination with regard to value and weight of the
Muddamal. The witness in his deposition has stated
about the process adopted, but could not state the
name of the officer of the Custom Department who
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had seized Muddamal. According to him, seizure
officer was not present at that time. He could not
verify the signature on the photographs. Below
Ex.108, he could assume the signature of Shri
Trivedi who is PW2.
111. Vinubhai Chandubhai Parmar PW9 is Customs
Superintendent of godown headquarters, he was
serving since 15.7.1989 and according to him, the
Muddamal which was seized during the raid and
sealed packet was deposited in the custom godown
and was noted at page 28 of the register as
V/135/89 on 9.8.1989. The register was brought by
him in the court and referring to the register, he
stated that one gold stripe was shown as 103.800
gms and the sample Muddamal was shown as 50.900
milligram which he states that it was deposited
with the Government mint for examination for which
there is an entry as V/88/90 on page 5 dated
3.4.1990 whose receipt no.1363 was received on
30.3.1990.
112. The witness PW10 Arvind Mori was working as a
Custom Inspector Preventive Branch in 1989, he had
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undertaken the work of taking the sample from the
godown to the mint at Mumbai. He had taken the
Muddamal and got it deposited on 30.3.1990. He has
produced the original report of Mint Ex.197 to
201.
113. The officer who had conducted the search was
required to prove that he had general or special
order of the Collector of Custom; and seizure of
the smuggled gold must be by a proper officer, who
has been assigned those functions by Board of the
Collector of Customs.
114. In the case of Nathu v. State of Uttar Pradesh,
AIR 1956 SC 56 : 1956 CrLJ 152, it is observed by
Hon’ble Supreme Court with regard to confessions
that the prolonged custody immediately preceding
the making of the confession is sufficient, unless
it is properly explained, to stamp it as
involuntary. PW3 has offered no explanation for
keeping the accused in prolonged custody.
115. In Nathu (supra), it has been noted in Paragraph 6
as under:-
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“Where the Courts below have, in
coming to the conclusion that the
confession of the accused was
voluntary, failed to note that the
C.I.D. Inspector had offered no
explanation for keeping the accused in
prolonged custody immediately
preceding the making of the
confession, which matter the
prosecution had to explain if the
confession was to be accepted as
voluntary.”
116. In the case of Asst Collector of Customs, Baroda &
Anr. v. Mukbujusein Ibrahim Pirjada, 1969 (10) GLR
692 : 1970 CriLJ 1305, it has been held that in
order to attract the presumption under Section 123
of the Customs Act, the goods must be shown to
have been seized from the possession of the
accused by the customs officers. Section 110 of
the Customs Act contemplates seizure of goods
liable to confiscation only by the proper officer
as defined under Section 2(34) of the Act. PW3
failed to prove that he was competent to seize the
alleged gold.
117. In Mukbujusein Ibrahim Pirjada (supra), it was
observed as under:-
“Mere markings could not be taken as
proof of the fact of the foreignPage 102 of 108
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origin of the goods as such markings
and labels would be hearsay evidence.
The mere fact that the accused was in
possession of gold and such possession
was a conscious possession because of
the various circumstances would not
prove the essential ingredient of the
offence that the gold in question was
smuggled gold.”
118. Statement of accused no.1 and 2 cannot be termed
as voluntarily, given in wake of no explanation by
the gazetted officer for keeping them in prolonged
custody. The telegram referred hereinabove
reflects the fact of detention. The seizure was
for confiscation of gold then the gazetted officer
prior to recording of statement under Section 108
of the Customs Act was required to issue summons.
119. Learned advocate Mr. Soni referring to the
certificates issued by the FSL, Gandhinagar and
Mint Bombay submitted that the symbol as noted by
the FSL, Bombay would reflect that it stated of
9990 while the sample examined by the Mint Bombay
does not correspond. He further submitted that the
FSL report also reflects about some figures which
could be read as 10 Tolas. Mr. Soni thus stated
that this contradiction regarding the original
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gold alleged to be seized from the accused have
not been clarified by the prosecution.
120. The case of the prosecution is that 3 of the gold
bars were purchased from discharged accused Mahesh
Kantilal Soni, while 2 gold bars were purchased
from accused no.4 Narendra Kantilal Soni. The
prosecution could not prove whether accused no.2
had actually purchased 3 gold bars from discharge
accused Mahesh Kantilal Soni. Further, accused
no.4 in his statement before the custom officer
has denied of selling any such gold bars to
accused no.2. The origin of the alleged gold bars
could not be proved by the prosecution. The facts
also does not get proved that any such purchase
was made from discharged Accused Mahesh Kantilal
Soni. The witness PW5 Joseph D’Cruize,
Superintendent Custom Preventive he though had
recorded statements of various persons, could not
find any connection with respect to discharged
accused Mahesh Kantilal Soni, even after the
registration of the complaint, he continued with
his investigation on oral instructions. This very
fact also proves that on the date of the
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complaint, the prosecution could not find the link
of accused no.2 with discharge accused no.5.
121. Even the statement of accused no.4 recorded under
Section 108 of the Customs Act which was recorded
after the issuance of summons does not disclose
any connection with the sale. It has been reported
that accused no.4 and 5 though they bear a common
surname with common father’s name, but they are
not related to each other. The accused no.4 in his
statement has stated that he fails to understand
as to how his name has been given by accused no.2
while he holds the license for the sale and
purchase of gold ornaments. The prosecution was
required to further examine through the evidence
of the accused no.4 with regard to the sale of
that two gold bars to show its procurement. The
accused no.4 is a license holder and thus, would
have been maintaining the books as per the Act .
The illegal purchase of foreign mark gold as a
smuggled gold could have been proved by further
investigation. Further 5 gold bars which has been
converted into stripes as per the FSL report of
Gandhinagar bears same symbol. The marking shows
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9990 and as suggested and on perusal, the report
marks figures which can be read as 10 Tolas with
almost some mark as CPEDI and SUISSE.
122. The statement of accused Dilip Vanaji Soni is only
to the fact that accused no.1 and 2 had come to
the shop and had asked him to convert the bar into
stripes to an extent that the marks would not be
visible, but the Muddamal was not identified by
him. Whether the seized articles were the same
which he had operated were to be verified. The
evidence of the witnesses do not corroborate to
the statement of the accused. Non-examining of
officer B.M. Rohit – Superintendent Preventive of
Custom cast a doubt on the fairness of proceeding.
The initial burden under Section 123 of the
Customs Act has not been proved to shift it to the
accused. The place and source of secret
information though are not to be disclosed but
from PW1 – complainant’s evidence, it transpires
that the gist of information received did not
reflect the name of accused no.1 and 2. The
officers stated to have intercepted the accused
were not examined to give evidence of their
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apprehension at Raipur Darwaja. The accused were
taken to Shri B.M. Rohit; the delay in the process
of drawing the panchnama has also not been
explained. The seizure panchnama and the statement
alleged to be recorded under Section 108 of the
Customs Act is recorded by one officer PW3.
Section 108 permits any gazetted officer to record
statement, but the seizure of goods must be by a
‘proper officer’ as defined under Section 2(34) of
the Customs Act.
123. The conviction based on statement considering as
voluntarily is bad in law. The statement recorded
was during long detention before the custom
officer. Those statements were not recorded under
free atmosphere, by way of serving summons to
those person apprehended. The arrest was prior to
the complaint. The arrest was on 6.8.1989, while
the complaint was on 16.9.1989. The prosecution
has also failed to prove the gold as smuggled
gold. The statement of the accused were not proved
to have been recorded under their free will. The
statements gets vitiated under Section 24 of the
Evidence Act and hence, cannot be relied upon in
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the criminal proceeding.
124. Thus, on the observation and appreciation of the
evidence to the reason stated hereinabove, the
conviction is bad in law, and suffers from
illegality, thus requires to be set aside.
125. In the result, the judgment and order of
conviction and sentence dated 19.6.2002 passed by
the learned Metropolitan Magistrate, Ahmedabad in
Criminal Case no.538 of 1989 and the judgment in
Criminal Appeal no.32 of 2002 are quashed and set
aside. Thus, the present revisionists are
acquitted. Record and proceedings be sent back to
the concerned Court.
(GITA GOPI,J)
Maulik
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