Satnam Singh alias Satta v. Assistant Commissioner of Customs

The first question, that arises for consideration, is, as to whether, the voluntary confessional statements 23.03.1995 and 25.03.1995 made by the accused(revision-petitioner) under Section 108 of the Act before the Custom Officers, are admissible into evidence or not. In State of Punjab vs. Barkat Ram, AIR,1962 (Supreme Court) 276. A three Judge Bench of the Apex Court, while considering, whether the Custom Officers, to whom the confessional statement was made, could be said to be the Police Officers, within the meaning of Section 25 of the Evidence Act, observed that they are not police officers. On behalf of the prosecution, it Criminal Revision No.86 of 2003(O&M) [5] was argued that the mere fact that certain powers of arrest, search, seizure and recording of evidence, had been conferred, on such officers, in the cases, where the contravention of the provisions of the Statute, was complained of, is not sufficient to make them Police Officers, under Section 25 of the Evidence Act.

The plea by the respondents was that the Officers, on whom such powers were conferred, were, in fact, Police Officers, no matter, by what name, they were called. The Apex Court, by majority, pointed out that the primary function of the Police, under the Police Act, 1861, is prevention and detection of crime, while the Customs Officers, were mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties, i.e., they were more concerned with the goods and the customs duty, than with the offender. After referring to the provisions of various Statutes, including Section 5(2) of the Old Criminal Procedure Code (now Section 4(2)of the Code) it was held by the Apex Court, that merely because the Custom Officers, had been entrusted with certain powers, having similarity with those of the Police Officers, was not sufficient to make them Police Officers, within the meaning of Section 25 of the Evidence Act.

In Romesh Chandra Mehta v. State of West Bengal, AIR 1970, (Supreme Court ), 940, a Constitutional Bench of the Apex Court, observed that the test for determining, whether an Officer of the Customs, is deemed to be a Police Officer, is whether, he is invested with all the powers of a Police Officer, qua investigation of an offence, including the power to submit a report under Section 173 Cr.P.C. It was held that since a Custom Officer exercising the powers to make an enquiry, could not submit a report Criminal Revision No.86 of 2003(O&M) [6] under Section 173 Cr.P.C., and, as such, he could not be said to be a Police Officer, within the meaning of Section 25 of the Evidence Act. In Illias v. Collector of Customs, Madras, AIR 1970 ( Supreme Court ) 1065, the same very Bench was required to consider, if the Custom Officers under the Customs Act, 1962, were Police Officers, within the meaning of Section 25 of the Evidence Act.

The Apex Court, referred to all the cases earlier decided and came to the conclusion, that they were not Police Officers within the meaning of Section 25 of the Evidence Act, as they could not present report, under Section 173 Cr.P.C. In Pavunny v. Assistant Collector 1997(3) RCR, 71 ( SC ), the Apex Court reiterated the earlier view and observed that the confessional statement, made before a Custom Officer, was admissible, as he is not a Police Officer within the meaning of Section 25 of the Evidence Act, though he is entrusted with many of the powers, which an officer- incharge of the Police Station exercises while investigating an offence. It was further held that though a Custom Officer is, a person in authority, within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement of the accused, pursuant to his appearance, either after issuance of the summons or after his surrender, such statement cannot be characterized to have been obtained, by threat, inducement or promise, and the self made statement, is admissible in evidence on the complaint laid by the Custom Officer.

In Veera Ibrahim v. The State of Maharashtra 1976(2) SCC 302, while posing a question,

as to whether such statement made under Section 108 of the Customs Act, by the appellant, therein, were hit by the Criminal Revision No.86 of 2003(O&M) [7] provisions of Section 25 of the Evidence Act and, as such, inadmissible into evidence, being in the nature of confession or not?

, observed that, in order to claim the benefit of the guarantee, against testimonial compulsion, embodied in clause (3) of Article 20 of the Constitution of India, it must be shown, firstly, that the person, who made the statement was “accused of any offence” and secondly, that he made this statement, under compulsion. The phrase “accused of any offence” includes within its ambit, only a person, against whom a formal accusation, relating to the commission of an offence, has been levelled, which, in the normal course, may result in his prosecution.

In these circumstances, it was held by the Apex Court, that when the statement of the appellant, was recorded, by the Custom Officers, under Section 108 of the Act, the appellant was not a person “accused of any offence” under the said Act. It was further held that 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 offence, under Section 135 (a) and Section 135(b) of the Customs Act. In these circumstances, it was held that the said statements were not hit by Article 20(3) of the Constitution of India, and Section 25 of the Evidence Act. From the principle of law, laid down, in the aforesaid cases, it is clearly evident that the confessional statements made by the accused, before the Custom Officers, under Section 108 of the Act, if found to be voluntary, would be legally admissible into evidence.

The Counsel for the petitioners, however, has placed reliance on Noor Aga v. State of Punjab and another, 2008(3) RCR (Criminal) 633 (SC), a decision rendered by Criminal Revision No.86 of 2003(O&M) [8] two Hon'ble Judges of the Apex Court, in support of her contention, that since the Custom Officers, are Police Officers, confessional statements, made by a person, before them, under Section 108 of the Act, are hit by the provisions of Section 25 of the Indian Evidence Act, 1872. In view of the principle of law, laid down, in Romesh Chandra Mehta's,Illias's, State of Punjab's and Pavunny's cases (supra) decided by larger Benches of the Apex Court, no help could be drawn, from the principle of law, laid down, to the contrary, on the same point, in Noor Aga's case (supra) decided by a two Judge Bench of the Apex Court. In this view of the matter, the submission of the Counsel for the petitioner, being without merit, must fail, and the same stands rejected.

The mere fact that the confessional statements of the accused were recorded on 23.03.1995 and 25.03.1995 did not mean that the same were not voluntary. No evidence, whatsoever, was produced, on the record, that the accused was subjected to torture, coercion or duress, resulting into the making of confessional statements by him. The solitary circumstance that the confessional statements (Ex.PC and Ex.PH) were recorded by the Customs Authorities under Section 108 of the Act, after some delay, could not be said to be sufficient to discard their reliability. It was proved from the evidence, produced by the complainant, that the accused made these statements voluntarily, without any pressure, coercion or duress. In the confession statement Ex.PC, he has stated that the statement was read over to him and after admitting the same to be correct, he thumb marked it. He also admitted the recovery of six gold biscuits from him on the relevant day and that he could not produce any documents with regard to the possession/ Criminal Revision No.86 of 2003(O&M) [9] acquisition/ importation thereof.

The statements themselves find mention that the same were made while in sound disposing mind, without any fear, pressure or allurement, therefore, there is no reason to exclude such statements from consideration. The next question that arises for consideration, is as to whether on the basis of the retracted confessional statements, made by the accused under Section 108 of the Act, before the Customs Superintendent, confessing his guilt, could be made the basis of conviction or not. In this regard, it may be observed that denial to the confessional statements was made for the first time on 17.12.1992 when the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Such retraction made at the fag end of the trial would enable the Court to draw an adverse inference against the accused. In such situation, the voluntary confessional statements made by the accused coupled with the recovery of gold biscuits, referred to above, with regard to the possession/acquisition/ importation whereof they could not produce any proof, were sufficient to record their conviction and award them sentence.

In Union of India vs. Satrohan, 2008(3) RCR (Crl.), 803,(SC) recovery of 99 bags of contraband from the accused, was effected, by the Custom Officers. The accused retracted from his voluntary confessional statement, after more than six years. In these circumstances, it was held that the retraction was an afterthought, and the conviction could be based on such voluntary confessional statement. The principle of law, laid down, in Satrohan's case (supra) is fully applicable to the facts of the instant case. Counsel for the petitioner has also taken me through the Criminal Revision No.86 of 2003(O&M) [10] testimonies of the defence witnesses and has persuaded to believe the same and discard the prosecution evience. The contention is not approved. Lala Ram (DW1) and Parkash Chand (DW2) have only stated that the accused had been residing at Malout for the last about 10/12 years and about 4 years back, and the accused along with his brother was taken away from his house and involved in the false case.

Prem Kumar Bansal (DW3) Inspector Food and Supply Department, Malout proved copy of ration card, while Parshotam Lal (DW4) is Senior Clerk in the office of Municipal Council, Malout who proved the enlistment of the accused as voter in M.C.Malout. Such evidence led by the accused is hardly sufficient to shake the findings of his guilt. The concurrent findings, recorded by the Courts below based on the correct appreciation of the cogent, convincing, reliable and trust- worthy evidence of Mahipal Singh Inspector Customs (PW1), Anup Kumar Superintendent Customs (PW2), Inspector Customs Jagjit Singh (PW3) and Vijay Kumar (PW4), who deposed with regard to the recovery of gold biscuits, aforesaid, from Sardara Singh, coupled with the voluntary confessional statements made by the accused, under Section 108 of the Act, that the accused was guilty of the offence, punishable under Section 135 of the Act, do not suffer from any illegality or perversity.