Delhi District Court
Shri Manoj Kumar Dubey vs Shri K. Chatterjee on 3 March, 2012
1
IN THE COURT OF MS. NEENA BANSAL KRISHNA
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No.48/10
Shri Manoj Kumar Dubey
S/o Sh. Ved Prakash Dubey
R/o 19, Anupam Apartments
M.B. Road, New Delhi
.... Appellant
versus
Shri K. Chatterjee
IO, DRI, Delhi Zonal Unit
New Delhi .... Respondent
Date of institution of the petition : 19.02.2005
Date of reserving judgment/order : 28.02.2012
Date of Order/ judgment : 03.03.2012
ORDER:
1. This is an appeal against the Order of conviction dated 10.01.2005 vide which the accused/appellant was convicted under Section 132 & 135 (1) (a) of the Customs Act for having being found in possession of foreign currency and against the Order on sentence dated 14.05.2005 vide which he was awarded punishment for the already under gone and fine of Rs. 50,000/- under Section 132 of the Customs Act and fine of Rs.1 lac under Section 135(1)(a) of the Customs Act.
2. The facts in brief are that the accused who was working in United Airlines flight as a crew member, was detained by the 2 officers of Delhi Zonal Unit of DRI, New Delhi, while he was scheduled to leave New Delhi for Hong Kong at 01.35 hours on 18.03.1999, on the basis of specific intelligence that he was carrying foreign currency. A notice under Section 102 of the Customs Act was served upon him for giving him a option to get his search conducted in the presence of Gazetted Officer of Customs Department or a Magistrate, but he gave in writing that he had no objection of being searched by the officers of the DRI. Accordingly, he was taken to the office of ARI Customs Superintendent (Preventive) where his search was conducted in the presence of two independent witnesses.
3. One yellow coloured paper envelope with inner cloth lining was found underneath two nylon belts wrapped tightly around his abdomen and waist upon which he had first worn a jacket and thereupon had a uniform coat. The envelope was found to contain bundles of assorted foreign currencies, which were equivalent to Indian Rs.99,49,375. The foreign currency was accordingly, seized and charge sheet under Section 132 and 135(1)(a) of the Customs Act was filed in the Court.
4. The Ld. A.C.M.M. took cognizance of the complaint on 14.05.1999 and recorded the pre-summoning evidence of the complainant as PW1 and Sh. V.K. Budhiraja, Senior Intelligence Officer, DRI as PW2.
5. Thereafter, Charge under Section 132 & 135(1)(a) of the customs Act was framed against the accused on 04.06.2001 to 3 which the accused pleaded not guilty.
6. The prosecution in support of its case examined two witnesses PW1, PW2 and also one witness Sh. P. Sudhir, Intelligence Officer, DRI as PW3 at a post charge stage.
7. Statement of the accused was recorded under section 313 Cr.P.C wherein, he denied that foreign currency was recovered from his possession.
8. He examined four witnesses in his defence, namely, DW1 Inspector Sanjeev Gupta, DW2 Sh. Nityanand, DW3 Tilak Raj and DW4 Sh. Manmohan Ahmad.
9. The Ld. ACMM after considering the evidence of the record, came to the conclusion that accused was found in possession of foreign currency for which he was not able to give any explanation nor he had made any declaration in respect of said foreign currency and thereby convicted him and sentenced him under Section 132 and 135 (1)(a) of the Customs Act.
10. Aggrieved by the said Order of conviction, the present appeal has been filed.
11. Ld. Counsel on behalf of the appellant has argued that though the accused had allegedly made a confession before the officer of the DRI but it has been extracted from him under 4 duress and the appellant had retracted the same in the Court at the first instance. The said confessional statement of the appellant being non-voluntary, cannot be read against him.
12. It is further argued that as per the prosecution, the pocket with the inner lining was concealed around the waist of the accused with the help of two belts over which the accused had worn his shirt and uniform jacket. It is the case of the prosecution that the said jacket contained 32 bundles of notes each containing 100 notes. If this were to be concealed inside the jacket its size would be huge and such Packet cannot possibly be concealed in the manner alleged by the prosecution. The shirt worn by the crew member is tight fitted and the packet would have been easily visible and would have been it would have been noticed by the officers posted at the airport who frisk the Crew Member before they got a clearance to enter the boarding area. The very fact that no such packet was noticed to have been concealed on the body of the accused by the officers who conducted frisking clearly point out that in fact accused was not in possession of any packet and the same has been falsely planted on him.
13. It was further argued that though the Court on directed the release of currency to the Government but had not given any direction that the envelop in which the currency was recovered and also the two belts with which the packet was allegedly tied may also be not preserved. This non-production of envelope and the two belts seriously prejudiced the 5 accused to demonstrate that it was impossible for a packet of such a size to have been concealed under the shirt of the accused in a manner it has been alleged.
14. The Ld. Counsel on behalf of the appellant has further argued that the innocence of the accused and the planting of the money on the accused is further fortified by the fact that the two independent Panch witness in the present case, in whose presence alleged recovery had been made, had not been examined by the prosecution.
15. Rather one of them, that is a Nityanand had been examined by the accused wherein he has deposed that he was on duty on 18.03.1999 from 06.00 AM and that he was called in the morning by the customs officers and was made to sign some documents and that no recovery have been effected in his presence. The duty register of these two independent witnesses had also been proved by DW3, which also shows that Nityanand and other public witness Inderpal were in fact on duty from 06.00 AM on 18.03.1999 and could not have been possibly been present at 01.30 AM in the morning on 18.03.1999 when the alleged recovery has been made. Also, if the independent witnesses were the true witness then non examination of these panch witnesses by the prosecution is not understandable.
16. Rather, to prove his own truthfulness, it is the accused which had examined Nitayanand, the panch witness as DW2.
6The testimony of the DW2 strengthened the case of the accused that no recovery was affected from him and clearly proves that the proceedings carried out by the customs officer showing the recovery from the accused, was only fabrication.
17. In the end it is argued on behalf of the accused that in fact there were 18 crew members of the United Airlines, who were to travel in the plane to Hongkong. While they were on their way, the packet containing foreign currency was found abandoned. One of the crew members had an altercation with the customs officers in regard to some foreign currency which the said crew members were carrying and for which he had made a declaration. The accused being the friend of said crew member went for his assistance and intervened because of which the customs officers were irritated and they planted the said packet on the accused.
18. It is argued that no recovery whatsoever was made from the accused and he is entitled to be acquitted.
19. Ld. Counsel on behalf of the Department of Revenue has argued that the accused had admitted his guilt in unequivocal terms in his statement recorded under Section 108 Customs Act. His retraction of the said confession on a subsequent date was an after thought on the legal advice and such retraction would not affect the probotive value of the confession. It is further argued that during the trial, the prosecution has moved an application for the release of the currency, which was contested by the accused but the currency was order to be 7 released by the Court.
20. The case property had taken by the court under the order of the Court and it is subsequently that an objection has been taken by the accused in regard to non production of case property. Infact, case property was produced and exhibited at the stage of pre charge evidence.
21. Moreover, search of the accused had been conducted by a Gazetted officer and to support the case of the prosecution three witnesses have been examined who have been consistent in their testimony. Merely, because the panch witnesses has not supported the prosecution, would not disprove the factum of recovery.
22. In the light of the consistent testimony of the prosecution witnesses, their testimony cannot be discarded merely on the ground that they were the officers and it cannot be alleged that there were interested witnesses. The Panchanama has been duly proved by the prosecution witnesses. Furthermore, the defence being now put forth by the appellant of having been implicated on account of altercation with the customs officers has never been put to the prosecution witnesses.
23. It is ,therefore, submitted that the accused has been rightly convicted and the appeal is liable to be dismissed.
24. I have heard the arguments and also perused the record 8 and written arguments. My observations are as follows:
25. PW2 V.K. Budhiraja, senior investigating officer DRI had corroborated the testimony of PW1 to the extent that he had issued a notice under Section 102 of Custom Act to which written reply was given by the appellant in his own handwriting running into eight pages which is Ex. PW2/A.
26. The first arguments which has been addressed on behalf of the appellant was that as per prosecution 32 wads of approximately 100 notes as per the annexure to panchnama, were recovered from the paper bag which was allegedly tied around the waist of the appellant. It is submitted that though currency was released to the Customs Department by the order of the Court by they were at no point of time directed that the paper bag in which money was recovered and the two waist belts with which bag was secured, be also destroyed. The said paper bag and the waist belt have not been produced in the Court which was significant to demonstrate that the said paper bag containing 32 wads of approximately 100 notes each could not possibly have been tied around the waist with the help of two belts.
27. The case of the prosecution is that the appellant was found in possession of foreign currency equivalent to Indian Rs. 99,49,375/- and thereby committed an offence punishable under section 132 Customs Act.
928. According to the prosecution witness PW1 K. Chatterjee, investigating officer, DRI pursuant to the specific intelligence; he along with other officers of DRI, New Delhi intercepted United Airlines Flight Crew Member, the accused who after custom clearance was about to board United Airlines Flight No. UA-002 scheduled to leave New Delhi for Hongkong on 18.03.1999 at around 1.00 a.m, as he was suspected to be carrying contraband item. On inquiry, he became nervous and was served with notice under section 102 of the Custom Act Ex PW1/C to which the appellant gave a written reply Ex PW1/C that he had no objection if his search was conducted by the custom officers in presence of any custom officer and accordingly his search was conducted in the room of the Custom Superintendent in the presence of two panch witnesses and a paper bag tied with two belts around the waist was found concealed under uniform and shirt, which the accused was wearing. The paper bag was found to contain foreign currency worth Rs. 99,49,375/-. The three papers slip on which some money transaction have been recorded were also recovered which were Ex. PW1/D1 to D3. The panchnama Ex PW1/E was prepared which had the signature of panch witness and the other officers.
29. PW2 V.K. Budhiraja, senior investigating officer DRI had corroborated the testimony of PW1 to the extent that he had issued a notice under section 108 of Custom Act to which written reply was given by the appellant in his own handwriting running into eight pages which is Ex PW2/A.) The first 10 arguments which has been addressed on behalf of the appellant was that as per prosecution 32 bandals of approximately 100 notes as per the annexure to which panchnama were recovered from the paper bag which was allegedly tied around the waist of the appellant. It is submitted that though currency was released to the custom department by the order of the court but they had no any point of time was directed that the paper bag in which money was recovered and the two waist bandals with which bags were also destroyed. The said paper bag and the waist belt have not been produced in the court which was significant because the size of the paper bag would have may be that the said paper bag containing 32 bandals of 100 notes each could not possibly have been tied around the waist with the help of two belts.
30. The appellant has some substance. If 32 bandals of notes were to be kept in a paper bag as claimed, it would be a bag of size atleast 1 ft x 3ft. Further, it would be packet having thickness atleast six to eight. PW1 K. Chaterjee, investigating officer had proved the envelope in which the money was recovered as Ex P9, and two belts as Ex P10 and 11. It was clarified by him in his cross examination recorded at the stage of pre charge evidence that the accused had concealed the currency notes in rows of three packets each, though this fact was admittedly not mentioned in the panchnama or in the complaint. The witness was asked to demonstrate the manner in which the money had been concealed by the accused but the witness responded that he could not demonstrate the 11 manner in which the money was concealed. The packets has not been produced thereafter as the currency was allowed to be released to the Government by the order of the court and the report came that the packing material had also been disposed of, since there was on direction of preserving the same but if the testimony of PW1 was to be believed that the money was kept in the rows of three, the length and breadth of the packet would have been too long and it is practically difficult to understand how it could have concealed under shirt and the waist uniform which the accused was wearing . If it is considered that the wads had been packed then thickness of the said notes would have been more than 6 inch and it could not have possibly been concealed without being visible.
31. In this regard, the testimony of DW1 Insp Sanjeev Gupta SHO police station IGI Airport who was examined by the accused is significant. It is deposed by him that ingoing and outgoing crew members are subjected to security checking as per the procedure. According to the procedure, the passenger/crew members have to go through the metal detective doors and are subjected to frisking by the person mainly in the security hold area prior to boarding of passenger/crew members in the aircraft. The main purpose is to check the person and his hand baggages and frisking usually includes entire frisking of the person. It is no doubt admitted by the witness in the cross examination by the ld. S.P.P that though the passengers are checked in routine, some people are able to take gold and other contraband. It may be 12 at times because of connivance of the security staff and some time without their connivance.
32. The testimony of DW1 Insp Sanjeev Gupta shows that the crew members are subjected to frisking of their entire body just like the passenger. If the frisking was a mandatory requirement of the security and had been undergone by the accused, it is not understandable as to how such a huge packet containing 32 wads of notes would have been missed by any security officer while frisking the accused. It was argued on behalf of the department that DW1 had admitted that at times contraband was smuggled in connivance with security officers, if this may have been one such case. However, this argument is based on conjectures and cannot be of any assistance to the department in the absence of any evidence to the contrary. The manner in which the 32 wads of foreign currency is claimed to be concealed by the accused raises a serious question about the alleged case of the prosecution.
33. In the light of this suspicion it become absolutely pertinent to examine the panch witness in whose presence the foreign currency was allegedly recovered. As per PW1 K. Chatterjee investigating officer has deposed that the personal search of the accused was conducted in the room of custom Superintendent, where two panch witnesses were called and the recovery of foreign currency from under his shirt was made and the panchnama was signed by the accused as well as the witnesses. Interestingly, there were two independent 13 panch witnesses who had been called at the spot ie Nitya Nand and Inderpal and had been cited as the witnesses but neither of the two were examined by the complainant/department.
34. Nitya Nand one of the panch witness, however, was examined by the accused as DW2 who had deposed that he was examined before Additional Commissioner, IGI Airport on 05.09.2000 in connection of the with the present case and his testimony was mark A. In the cross examination the said testimony was exhibited as Ex DW2/A on production of the relevant file and the record. In the said statement it has been deposed by him that on 18.03.1999 he was working as trolley man at the airport and his shift was from 6 am to 2 pm. He was called in the office at about 12 pm and was told that two persons had been arrested in the night and was shown some foreign currency which was lying on the table and was asked to sign some papers. Another witness Inderpal was also present who had signed the said documents. He did not remember if those accused persons was also present at that time. In the cross examination by the ld. S.P.P he denied that he as well as Inderpal were called by DRI officers at 1 am to witness the personal search of the accused. He also denied that the search of the accused had been made in his presence or that the notice under section 102 Custom Act had been served upon the accused in his presence. He specifically denied that the yellow envelope secured with two nylon belts wrapped around the abdomen of the accused were recovered in his presence or that the said envelope was found to contain bandals of 14 assorted foreign currency. He also denied that the personal search of the accused resulted in recovery of three paper slips. He further denied that the panchnama Ex PW1/E was prepared in his presence but he admitted that he had been made to sign the panchnama and also the slips Ex PW1/D1 to D3.
35. The panch witness Nitya Nand has therefore categorically denied about recovery of foreign currency from the person of the accused in his presence or that he was an actual witness to the preparation of panchnama. In fact in his testimony it has come that he was on duty on 18.03.1999 from 6 am to 2 pm when infact the recovery was effected from the accused by the custom officers in the early hours of morning of 18.03.1999 at about 1.00 am.
36. The other material witness in this regard is DW3 Tilak Raj accountant M/s. T.D.I. International India Limited who had produced the duty sheet of the trolley man for the month of March-1999. The duty hours for Nitya Nand and Inderpal the trolleyman was shown to be from 6.00 am to 2.00 pm on 18.03.1999 and the photocopy of the duty sheet for 17th and 18th March,1999 were exhibited as Ex DW3/3/1 to 3/2. These sheets duly proved by DW3 Tilak Raj further corroborate the testimony of DW2 Nitya Nand that he came for duty only at 6.00 am on 18.3.1999 and further strengthen the defence of the accused that no panch witness was present at the time of the alleged recovery. Infact, PW1 K. Chatterjee has clearly deposed in his cross examination that panch witness had 15 remained with them from 1.00 am till 6.00 am which is in clear contradiction to the testimony of panch witness DW2 Nitya Nand.
37. It was argued by ld. counsel on behalf of the department that mere non production of one witness is not fatal in view of the testimony of the two official witnesses who have proved the recovery of currency from the person of the accused. The prosecution has relied upon the case Vs T K Chaman Singh and others 2001 VI AD S.C 393 wherein it was held that when the evidence of eye witness was not doubtful and he had no previous enmity with the accused then the question of disbelieving his testimony or of false implication of the accused cannot arise. Likewise, in the case of State of U.P. Vs Anil Singh AIR 1988 S.C. 1988; it was observed that it is not proper to reject the case for want of corroboration of independent witnesses if the case made out was otherwise true or acceptable. In Chander Bhan Ram Chand Vs State 1971 Crl. (P&H) it was observed that even if independent witnesses were not supporting the prosecution case conviction could still based on the credible testimony of official witnesses. Similar were the observation made in State of Haryana Vs Manoj Kumar Crimes 1994(1) 103.
38. It was submitted on behalf of the department that ld. ACMM had rightly observed that even though panch witness had not supported the prosecution case but that cannot be the sole reason for throwing out the case.
1639. The proposition of law which has been expended by the various judgments relied upon by the department has never been in question. The truth can be proven even by one witness provided it is a trustworthy and believable witness. It is also true that even if some public witnesses fail to support the case of the prosecution, the testimony of official witnesses cannot be discarded on this sole ground, if it is otherwise found to be credible. However, in the present case as already discussed in detail the quantity and manner of the recovery of foreign currency from the accused did not inspire confidence and thus called for support fro m the independent witnesses which has not come from the independent panch witness, namely Nitya Nand who has been examined by the appellant as DW2. Th prosecution has not given any explanation whatsoever as to why neither of the two independent panch witnesses were examined by them in support of their case. Infact, the testimony of PW1 in regard to the presence of panch witness is in sharp contradiction to the record of the duty as proved by DW3 Tilak Raj and also to the testimony of DW2 Nitya Nand himself . In the facts of the present case, the independent corroboration of the testimony of official witness thus became imperative but the same has not come forth from the panch witness thereby creating a doubt about the credibility of the testimony of the prosecution witnesses.
40. The other important aspect which needs to be considered is the deposition of PW1 that besides the recovery 17 of foreign currency notes, three paper slips which are Ex PW1/D1 to D3 were also seized from the accused. However, interestingly he was unable to tell from which pocket, whether of pant or shirt were those three slips recovered. If infact those three slips had been recovered from the person of the accused at the same time as the currency notes, it is not understandable as to why PW1 was not able to disclose the place from which the recovery of those three paper slips were made. The reason why these three paper slips are important is that according to the department the three slips contained the details of the currency notes which the accused had carried with him on his trips undertaken by him on 11.3.1999,14.3.1999 and 17.3.1999 first and foremost, it has not been proved on record that accused was on duty on 11.3.1999 and 14.3.1999 though the declaration forms have been placed on record. Further more, PW1 in his cross examination has admitted that he did not verify the handwriting written on paper slips. It is also admitted by him that he was not able to say if the details of foreign currency mentioned on slip Ex PW1/D1 tallied with the foreign currency recovered from the accused on 18.3.1999. The details of the currency as mentioned in panchnama Ex PW1/D on comparison do not tally with the currency mention on the paper slip Ex PW1/D1. The place from where these three slips were recovered therefore assumes significant. The thickness of the slip and fold which are apparent on the slip do not correspond to each other and the size of the slip creates a doubt about whether these slips could have been kept in the pocket by the 18 accused, whether of pant or of shirt. The perusal of these three slips show that the possibility of these being inside the packet cannot be ruled out.
41. The prosecution has tried to link the accused with the recovery of foreign currency from the packet by claiming that details of the transaction were on the slip which were recovered from the person of the accused. It was, therefore, imperative for the department to have been proved precisely the pocket or the place from which these slips were recovered from the possession of the accused. The evasive answer given by PW1 and also further denial of DW2 Nitya Nand, the public panch witness of recovery of slip in his presence creates a doubt about the recovery of slips from the accused. The three slips therefore again weaken the case of Department.
42. The department has further sought to corroborate the recovery of foreign currency from the accused by his confessional statement recorded under section 108 Customs Act,1962. It has relied upon the cases Collector of C.E Vs Duncan Agro Industries Ltd AIR 2000 SC 2001 wherein it was observed that the custom officers is a non police personnel and hence the statement recorded by him under section 108 Customs Act is admissible in evidence. Similar are the observation made in R.N. Kaker Vs Shabir Fidahusein and another 1990 Crl.L.J. 144( Bombay) that officers who has been given the powers of an officer in charge of a police station within the meaning of section 53 of the Act, cannot be 19 said to be police officers within the meaning of section 25 of the Evidence Act and statement recorded by said officers become admissible in law( also in Subhash Jain Vs State 2011(2) JCC 1921). The ld. counsel on behalf of the department has further relied upon the case Ravinder Singh @ Bittu Vs State of Maharashtra 2002(2) JCC 1059 (SC) wherein it was noted that the confessional statement of the accused, if found voluntary and truthful, requires no corroboration for conviction( Also in A.K. Mahboob Vs I.O, NCB JT 2001(1) SC 614).
43. The confessional statement found to be made voluntarily was held to be safe to be relied upon against the accused as observed by the Hon'ble Supreme Court in the case of Pon Adithan Vs Deputy Director, NCB, Madras 1999(2) JCC (SC)335. ( Also in Emmannuel Uchenna Ezenwosu Vs NCB and others 2003(1) JCC 417. Moreover, it has been argued on behalf of the Department that it has been held that confession once made voluntarily even if retracted would not effects its evidentiary value and can be made the basis of conviction. For this, ld counsel has relied upon the judgments Kanhaya Lal Vs Union of India 2008(1) JCC ( Narcotics) 23; Surjeet Singh Vs Union of India AIR 1997 SC 256; K.T.M.S Mohd and another Vs Union of India 1992 SCC (Cr) 572; Shankaria Vs State of Rajasthan AIR 1978 SC 1248; Hem Raj Devi Lal Vs State of Ajmer AIR 1954 SC 462 (SC) and K.I. Pavunny Vs Asstt Collector(1997) 3 SCC 721.
2044. Section 108 of the Customs Act creates an obligation upon the person under interrogation to speak the truth and to give the answers correctly. This obligation arises not from the person interrogating such accused but from the Constitution itself. In the case of Percy Rustomi Basta Vs State of Maharashtra 1983 (13) DLT 1443 (SC) it has been held that a person summoned under Section 108 of the Customs Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case not from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 24 of the Evidence Act is that it must emanate from the person in authority.
45. Likewise to ensure that the statement was being made voluntarily, a precaution was prescribed by the Hon'ble Supreme Court in the case of C. Sampath Kumar Vs Enforcement Officer 1997 (96) ELT 511 and Amba Lal Vs Union of India and others AIR 1961, SC 264, wherein it was observed that the statement written and signed by the appellant himself safeguards the interest of the maker as well as the Department and eliminates possibility of making complaint subsequently that the statement was not recorded correctly or that he was compelled to make such statement.
2146. In the present case, the statement under section 108 Customs Act Ex PW2/A was admittedly recorded by the accused in his own handwriting but it is his claim and the argument that the statement was dictated to him and he was compelled to write the same in his handwriting. The accused moved application dated 20.03.1999 in the ld court through his wife retracting his statement under section 108 Customs Act, it was stated in the application that he was produced in the court before ld Duty M.M.,on 18.03.1999 after being in the detention of the Custom officers since early hours of 18.03.1999. He had been threatened by the officers with dire consequences in case he did not subscribe the confession . He was produced in the court after being warned to keep his mouth closed. On the said day, when he was produced in the court no family member of his was present in the court and he was under severe mental agony and shock and did not know how to plead his innocence. On 20.03.1999 he moved this application at the first available opportunity after his arrest, for retracting his statement under section 108 Customs Act.
47. The confessional statement made by the accused under section 108 Custom Act is perse admissible if it is shown to be voluntary and reliable. The accused has retracted his confessional statement on 20.03.1999. It is claimed by him that he was unable to make any statement on 18.03.1999 when he was produced before ld Duty M.M. because of the threat and also because of mental agony that he was suffering at that time. The factum of the accused being surrounded by 22 the custom officers at the time when he was produced in the court is admitted by PW1 in his cross examination wherein he has stated that entire team was present with him at that time when the accused was first produced in the court. This lends support to the reason shown by the accused for not being able to speak before the ld Duty MM about the involuntary statement made by him under section 108 Customs Act.
48. Ld. Counsel has relied upon Kalema Tumba Vs State of Maharashtra JT 1999(8) SC 293. In the said case retraction came after four years and it was observed that such retraction can be of little assistance to hold that the confessional was involuntary. Likewise in the case of Ruiz Guerrero Dolores Vs Customs 2000(2) JCC (Delhi) 357, the retraction of the confession was made after atleast 1½ years and such retraction was ,therefore, rejected. Also in the case of Strino Juen Antanio Vs Customs 2000 (2) JCC( Delhi)349, the confessional was retracted after about eight months. It was held that the Sessions Court had rightly concluded that the confession made was voluntar.
49. In the present case, the circumstance in which the accused was produced before the court and his contention that none of his family members were present at the time of his first production before ld. M.M. and also he had retracted his confession immediately through his application dated 20.03.1999 moved through his wife fully supports the ground for retraction. The accused has been able to show that 23 retraction has been made by him at the earliest possible opportunity and this cannot be brushed aside.
50. The contents of the statement under section 108 Customs Act may also bed looked into in order to understand its veracity. It has been mentioned in the said statement by the accused that in the course of his flight in Feburary, he met a passenger on a flight to Hongkong from Delhi whose name was Nazim who claimed to be living in Hongkong and he proposed to him to carry foreign currency for which he would give him 50 paisa per US dollars. He agreed for the same and carried the money in return for monetary consideration. The currency was to be handed over to the person present at Hongkong airport. The contact man was one Mamu who handed over money to him in Delhi. It was further stated by him that Mamu called on him in his hotel in Maurya Sheraton Hotel a few days back and introduced himself as Nazim's friend and subsequently came and delivered the packet containing currency which he was to hand over to Nazim who was to meet him at the airport in Hongkong. It is further stated by him that he was not aware about the addresses of those two persons who were themselves to get in touch with him as they wanted to maintain a distant relationship. It is further stated by him that though his family was residing in Delhi he preferred to meet Mamu at Maurya Sheraton Hotel where he was put by the Airlines when he was on duty. The accused further stated that he did not know the address or particular but could only give their description which he gave in his statement. He further 24 stated that he had twice carried the money for Nazim the details of which were mentioned on the separate slips which were recovered from him and were seized vide panchnama dated 18.03.1999. The accused further stated that he was to receive the money on his return to Delhi for all the three trips as per the details which were mentioned in the slips dated 11.03.1999 and 14.03.1999. In answer to the specific question that currency recovered from him were much more than the currency mentioned on the slip dated 18.03.1999, it was explained by the accused that the packet had been handed over to him at the last moment at the hotel and it was sealed and he did not have the time and he had not noticed the amount in the packet and he simply took the envelope with him.
51. The details as stated by the accused in his statement under section 108 Customs Act raise many question. First and foremost as per the statement the accused was involved in the transaction of transfer of foreign currency at the behest of one Nazim whom he had met in flight to Hongknog from Delhi in the month of Feburary. No efforts whatsoever have been shown to have been made by the Investigating Officer to check the passenger list to establish the identity of Nazim. It is difficult to accept that any person would indulge in such illegal activity of transferring the foreign currency without ensuring either the identity of the person for whom he was willing to work. It is also difficult to accept that the payment for such transaction would be deferred for the future especially when the identity 25 of the person for whom the accused, was not known working. It does not appeal to common sense that the accused would have under taken this transaction for Nazim through Mamu on the understanding that the payment were to be made in future, as has been alleged. No same person would do such transaction for the money to be paid in future by some unknown person.
52. The absurdity of the confessional statement is also evident from the fact that allegedly not one but this was third transaction which the accused was carrying out for Nazim and Mamu. No witness from Maurya Sheraton Hotel has been examined by the Department to show that accused had infact met with such person. Infact, there is no evidence that any such efforts was made by the Department to establish the identify of this Mamu or to ascertain if infact any such person had met the accused in the lobby of the hotel. Statement of the lobby manager Maurya Sheraton hotel had been recorded by PW1 K. Chatterjee and he had shown the hotel bill for the stay of the accused from 16.03.1999 to 17.03.1999 but this in itself is of no legal consequence.
53. The story which has been presented in the statement under section 108 Custom Act, on the face of it does not seem plausible in view of the admission of PW1 in the cross examination that they were not able to establish the identity of Nazim and Mamu. It is also evident from the statement under section 108 Customs Act that slip Ex PW1/DB dated 18.03.1999 26 having the details of foreign currency did not match with the currency recovered from the packet. Significantly this slip is dated 18.03.1999 when infact the bag had been handed over on 17.03.1999 as per the statement under Section 108 Customs Act. Disclosure under section 108 Customs Act coupled with its retraction by the accused on 20.03.1999 which was the earliest possible date for the accused, creates a doubt about this confessional statement and cannot be held to be a reliable piece of evidence against the accused.
54. In the end it was argued on behalf of the accused that one Anuj Vohra who was crew member with the accused had been apprehended by the custom officers and when he was questioned rudely, the accused had intervened and the bag containing foreign currency which was infact found abandoned in the boarding area, was falsely planted on the accused. Though this defence has not been specifically put to the prosecution witnesses but the question in regard to the arrest of accused Anuj Vohra were put to PW1 in his cross examination who had admitted that Anuj Vohra had been arrested and searched on the same day. The presence of two accused in the custom officer room is also corroborated by DW2 Nitya Nand.
55. It is a cardinal principle of justice that in order to punish the accused, the prosecution has to prove its case beyond reasonable doubt. Now the maxim "let hundred guilty persons be acquitted but not a single innocent be convicted". It is for 27 this reason that the burden of the prosecution to prove its case. In the case of Krishna Mochi and others Vs State of Bihar and others 2002(2) CCC (SC)58 wherein it was observed that in the present change in world the courts have been compelled to accept that society suffers by wrong convictions and it equally suffers by wrong acquittals. It was further observed that in a criminal trial credible evidence of even a solitary witness can from basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy as to what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses but the quality of evidence.
56. Similarly in Inder Singh Vs State( Delhi Administration) AIR 1978 SC 1091 it was observed that proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial guest for perfect proof often accounts for police presentation of fool proof concoction.
57. "An unmerited acquittal does no good to the society" so observed by the Hon'ble Supreme Court in the case of State of Punjab Vs Ramdev Singh 2004(1) CCC (SC) 23. It was noted that a doubt as understandable in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy 28 prey.
58. These observations made by Hon'ble Supreme Court from time to time reflect the perception of changing the society and the Courts about crime in changing times. It has been noted that the implication of wrongful conviction can be devastating, the accused is entitled to the benefit unless the prosecution proves its case beyond reasonable doubt. Yet at the same time, it has been found that on hyper technicalities and superlatives the accused should not be let of as even one wrongful acquittal can have serious impact on the law and order preventing in the society. Therefore, there lies an onerous task on this Court to be objective and yet thorough in appreciation of evidence to consider if the accused is liable to be convicted. In the present case, the case of the prosecution suffers from many gaps which have not been sufficiently explained by the prosecution. While the prosecution has claimed that the accused was concealing huge amount of currency on his person but the prosecution witness who had effected the recovery was unable to demonstrate the manner in which the huge packet was concealed by the accused. Not only this, independent panch witness before whom the recovery had been made have not been examined by the prosecution; infact one of the panch witness examined by the accused had clearly deposed that no recovery what so ever was effected in his presence. He has failed to support the prosecution on the aspect of recovery. More over, the statement recorded under Section 108 of the Customs Act is 29 not shown to be voluntary and infact, had been retracted at the earliest possible opportunity.
58. In the light of above discussion, it is held that the department has not been able to establish beyond reasonable doubt the recovery of foreign currency from the possession of the appellant and the benefit of the same has to be extended to the appellant who is entitled to be acquitted. The impugned judgment dated 10.01.2005 and order on sentence 14.01.2006 is accordingly set aside and appellant is hereby acquitted. Bail bond furnished by appellant is hereby cancelled, surety discharged. Trial court record be returned along with copy of this order.
Announced in the open Court on this 3rd day of March,2012 (Neena Bansal Krishna) Addl. Sessions Judge-01/PHC New Delhi 30