K.I. PA VUNNY v. ASSISTANT COLLECTOR (HEAD QUARTER), CENTRAL EXCISE COLLECTORATE, COCHIN

Reasons-For disagreeing with trial court-Recording of-By Appellate Court-Held: to be given only in respect of relevant aspects and not necessarily on eve1y aspect. Section 24-Central agency-Sensitive cases under Customs Act, Gold (Control) Act and such other Act~Assignment of-By Union of India-Held: Such cases should be assigned only to counsel having experience and ability in that branch of law to defend their cases so that public justice might not suffer and economy of country not put in jeopardy-Constitution of India, 1950, A1ts. 134 and 136-Customs Act, 1962, S.135--<Jold (Control) Act, 1948, Ss. 85(1)(a) and 86. Practice and Procedure: Constitution of India, 1950: Articles 136 and 141. .... :,- Concession-Wrong concession by party-on question of law-Held: H not binding on Supreme Court-Customs Act, 1962, S.130E. - PA VUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. Words and Phrases: 799 A "Accused''-Meaning of-In the context of S.24 of the Evidence Act,

1872. The appellant was acquitted of the charges under Section 135(l)(j) of the Customs Act, 1962 and Sections 85(1)(a) and 86 of the Gold (Control) Act, 1968, but a Single Judge of the High Court set aside the acquittal and convicted the appellant of the aforesaid offences and sen tenced him to undergo imprisonment for a period of 1 year and 6 months respectively. Hence this appeal. B c According to the prosecution, Gold biscuits of foreign marking were recovered from the compound of the appellant's house in the presence of the appellant and two panch witnesses, PW-3 and another, after digging got done by two Customs officials, PW- 2 and PW-5. The gold biscuits were kept concealed in a wooden box buried in the ground visible through the window of the appellant's bedroom. The appellant gave, i.n bis own hand- D · writing, a confessional statement on the same day before the Customs officials. In the proceedings for confiscation, the gold biscuits were confis cated. But the imposition of penalty was set aside. Thereafter, a complaint was .filed by PW-I, the Collector of Customs, and the same was refiled. The appellant was apprehended and was released on bail. The prosecution case E hinged upon the retracted confessional statement of the appellant, the recovery proceedings and evidence of witnesses, PWs 1 to 5 for proof of recovery of the contraband from the compound of the appellant's house. The question before this Court, pursuant to a reference from a two-Judge Bench, was whether the confessional statement of the appellant F given to the Customs Officers under Section 108 of the Customs Act, 1962, though retracted at a later stage, was admissible in evidence and could form the basis of conviction and whether a retracted confessional state ment required corroboration on material particulars from independent evidence. G Allowing the appeal in part, this Court HELD: 1.1. Customs Officer is not a police officer; nor is he em powered to file charge-sheet under Section 173 of the Criminal Procedure Code, 1973 though he conducts enquiry akin to an investigation under H .. ~ 800 SUPREME COURT REPORTS (1997] 1 S.C.R. A some of the provisions of the Code. His acts are in the nature of civil proceedings for collecting evidence to take further action to adjudicate the infringement of the Customs Act, 1962 and for imposition of penalty prescribed thereunder which would be self evident from Section 108(4) of the Act. [811-E] B Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461, followed.

1.2. The object of the Act empowering Custonis Officers to record the evidence under Section 108 is to collect information of the contraven- e tion of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence D Act, 1872. [818-D]

1.3. Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. The appellant was not a E person accused of the offence under the Act when he gave his statement under Section 108 of the Act in the office of the Superintendent of Customs, PW-2. The assumption that the appellant was an accused on the date is erroneous, since as on that date no formal complaint had been laid against the appellant. Therefore, a statement recorded or given by the person suspected of having committed an offence during the inquiry under Section F 108 of the Act or during confiscation proceedings is not a person accused of the offence within themeaning ofSection24 of the Evidence Act. [818-F-G] Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461 and lllias v. Collector of Customs, Madras, [1969] 2 SCR 613, followed. G

2.1. A person whose statement, on being suspected by the authority/officer of having committed an offence, is recorded by that authority/officer, becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence and H summons are issued. Thereafter, he becomes a person accused ·of the .. PAVUNNYv. ASS1T. COLLECTOR, (H.Q.) C.E.C. offence. [818-F) 801 A Maqbool Hussai11 v. State of Bombay, [1953) SCR 730 and Thomas Da11a v. State of Pu11jab, [1959) Supp. 1 SCR 274 followed. Veera Ibrahim v. State of Maharashtra, [1976) 2 SCC 302 and State of Pu11jab v. Barkat Ram, [1962) 3 SCR 338, relied on.

2.2. Though the Customs Officer is an authority within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement or the accused giving voluntary statement pur suant to his appearing either after issuance of summons or after the appellant's surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise. [818-H] B c

2.3. While giving a confessional statement under Section 108 of the Act, the appellant was under a legal duty .to state the facts truthfully lest he would be liable to prosecution. The threat emanates from and is that D of the statute and the officers merely enforced the law; Percy Rustomji Basta v. State of Maharashtra, AIR 1971 SC 1087, relied on. Vallabhdas Liladhar v.Asst. Collector of Customs, [1965) 3 SCR 854, E referred to.

3.1. The contention of the appellant that fairness of judicial process requires that such statements given by the accused should be strictly, meticulously and minutely scrutinised as they emanate at the threat of persons in authority and are inadmissible in evidence under Section 24 of F the Evidence Act, does not merit acceptance for the reason that the primary object of enquiry under the Act is to initiate proceedings for confiscation of the contraband and collection of excise duty and the persons acquainted with the facts are duty bound to speak the truth or to give statement truthfully upon the subject respecting which the person is G examined or made statement at the pain of prosecution for perjury or produce such document or other things. In the light of the legislative policy the question of unfairness or untrustworthiness of process does not arise and such a plea cannot be given countenance or acceptance. [817-E-G] Poolpa11di v; Superi11te11de114 Ce11tral Excise a11d Ors., [1992] 3 SCR H 802 SUPREME COURT REPORTS [ 1997] 1 s. C.R. A 247, relied on. Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461 and lllias v. Collector of Customs, [1969] 2 SCR 613, referred to.

3.2. The collection of evidence under Section 108 and other relevant B provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. The self same evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes. [819-A] _.. c

3.3. There is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to mdke the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate D the retracted confession. It is not necessary that there should be cor roboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; whether it was not obtained by threat, duress or promise, If the Court is E satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds th;;t the retracted confession is true, that part of the incnlpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. On the facts and in the circumstances of the case, the High Court was right in its conclusion that the statement of the appellant recorded under Section 108 of the Customs Act was voluntary statement and was not influenced by threat, duress or inducement etc. [823~E-H] F G Nishi Kant Iha v. State of Bihar, [1969] 1 SCC 347 and Balbir Singh v. State of Punjab, AIR (1957) SC 216 followed. Bhagwan Singh v. State of Punjab, AIR SC 2145; Hem Raj v. State of Ajmer, [1954] SCR 1133; Girdhari Lal Gupta & Am: v. D.N. Mehta, Asst. Collector of Customs & Anr., [1970] 2 SCC 530; Naresh !. Sukhawani v. H Union of India, [1995] Supp. 4 SCC 663 and Swjeet Singh Chhabra v. Union ... - PAVUNNYv. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 803 of India, (1997) 89 ELT 464, relied on.