Custom, Excise & Service Tax Tribunal
Shri Ritesh Soni vs Lucknow Prev on 5 August, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Customs Appeal No.70325 of 2023
(Arising out of Order-in-Appeal No.138 & 139-CUS/APPL/LKO/2020 dated
23/07/2020 passed by Commissioner (Appeals) Customs, Central Excise &
Service Tax, Lucknow)
Mr. Ritesh Soni, .....Appellant
(89/367, Vivekanand Road,
Bangur Park, Rishra, Hooghly-712248)
VERSUS
Commissioner of Customs (Pre.), Lucknow ....Respondent
(5th Floor, Kendriya Bhawan,
Sector-H, Aligunj, Lucknow)
APPEARANCE:
Shri H.K. Pandey, Advocate for the Appellant
Shri Santosh Kumar, Authorised Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO.70537/2025
DATE OF HEARING : 23 April, 2025
DATE OF PRONOUNCEMENT : 05 August, 2025
SANJIV SRIVASTAVA:
This appeal is directed against Order-In-Appeal No. 138 &
139-CUS/APPL/ LKO/2020 dated 23.07.2020 of the
Commissioner (Appeal) Customs, GST and Central Excise
Lucknow. By the impugned order, penalty of Rs 10,00,000/-
imposed on the appellant under Section 112 (b) of the Customs
Act, 1962 has been upheld.
2.1 On 22.02.2018, the officers of Customs Varanasi
intercepted Appellant-1 at Mughalsarai Railway station and
recovered 11233.370 gm foreign origin gold from him.
2.2 He in his statement under section 108 of the Customs Act,
1962 on 23.02.2018 admitted the recovery and stated that
Customs Appeal No.70325 of 2023
2
he was carrying the recovered gold on behalf of Shri
Prithviraj Tosawar, who is proprietor of M/s Umang
Jwellers & M/s Sawar Mal Jewellers, situated at 29A, Sir
Hariram Goenka Street Kolkata (owner) and that he was
working for him. Owner is his uncle.
gold is being smuggled into Kolkata in huge quantity from
many foreign countries through Bangladesh and in order to
conceal the identity the serial number engraved thereon is
removed by scratching.
he had on several occasion in the past also carried gold
from Kolkata and delivered the same to the persons in
Kanpur as directed by the owner.
he never carried any bill/ invoice for the goods being
carried by him for delivery in Kanpur.
he also was not in possession of any documents with
regards to the purchase/ importation of the said gold being
carried by him.
2.3 On the basis of the recovery of the gold from the appellant
and his statement admitting carriage of the smuggled gold,
appellant had committed an offence punishable under Section
135 of the Customs Act,1962. He was arrested on 23.02.2018
and produced before the Special CJM (Economic Offences) on
same day. CJM remanded the appellant to judicial custody.
2.4 Searches were conducted at the premises of the owner,
from where he was operating two firms namely M/s Umang
Jwellers and M/s Sawar Mal Jwellers, both being his
proprietorships concerns. Searches were also conducted at the
premises of the appellant. When officers visited the premises of
the owner on 09.03.2018 with search the shop was found closed
and it was informed that it is closed since 20.02.2018.
2.5 Subsequently officers again visited the premises of the
owner on 20.03.2018 with search warrant and shop was found
open. One Shri Suresh Kumar Tosawar was found there, who
informed that he is uncle of Shri Prithviraj Tosawar, who has
gone to Chennai for treatment of his kidney. However during
Customs Appeal No.70325 of 2023
3
search no documents relating to the seized gold were found or
produced.
2.6 Summons were issued to Shri Prithviraj Tosawar for
appearance. However he didn't appeared as called for on
09.03.2018, 22.03.2018 and 09.04.2018.
2.7 A joint search operation at the premises of the owner was
conducted by the officers from Varanasi and Kolkata on
05.04.2018. Then also only Shri Suresh Kumar Tosawar was
found who repeated the same story about Shri Prithviraj
Tosawar. It was observed that the said premises is located on
the 2nd Floor of very old building, which is primarily a residential
building with very few shops. The name of the shops i.e. M/s
Umang Jwellers and M/s Sawar Mal Jewelers was nowhere
displayed making it impossible for any customer to reach there.
The premises was being used for dealing of illegal/ contraband
goods. No documents in regards to any transaction of sale and
purchase of Gold were recovered.
2.8 Call details of Shri Prithviraj Tosawar (Mobile No
8017634160) and Appellant (Mobile No 9874228622) were
obtained which showed that they were talking to each other
frequently and even in odd hours.
2.9 After completion of investigations a Show Cause Notice
dated 07.08.2018 was issued to the appellant and owner asking
them to show cause as to why:
(i) The seized 08 pcs foreign origin gold bars and 200 pcs
of gold bangles manufactured out of the smuggled
foreign origin gold bars, total weighing 11233.370
grams, valued at Rs.3,44,63,006/- (Three Crores Forty
Four Lakhs Sixty Three Thousands and Six only), should
not be confiscated under Section 111(b) & (d) of the
Customs Act, 1962.
(ii) Two cloth belts (kamarband) specially designed for
concealment of the gold bars and one trolley bag used
for concealment of the gold ornaments manufactured
from the gold bars brought from Bangladesh by way of
Customs Appeal No.70325 of 2023
4
smuggling should not be confiscated under Section 119
of the Customs Act, 1962.
(iii) A penalty should not be imposed upon Shri Prithvi Raj
Tosawar under Section 112 (b) of the Customs Act,
1962 for his involvement in the smuggling of foreign
origin gold bars.
(iv) A penalty should not be imposed upon Shri Ritesh Soni
under Section 112 (b) of the Customs Act, 1962 for his
involvement in the smuggling of foreign origin gold
bars.
2.10 The show cause notice was adjudicated as per order in
original dated 06.09.2019 holding as follows:
ORDER
(i) I order absolute confiscation of the seized 08 pcs foreign origin gold bars and 200 pcs of gold bangles manufactured out of the smuggled foreign origin gold bars, total weighing 11233.370 grams, valued at Rs.3,44,63,006/- (Three Crores Forty Four Lakhs Sixty Three Thousands and Six only), under Section 111(b) &
(d) of the Customs Act, 1962;
(ii) I order confiscation of two cloth belts (kamarband), especially designed for concealment of the gold bars and one trolley bag used for concealment of the gold ornaments manufactured from the gold bars brought from Bangladesh by way of smuggling under Section 119 of the Customs Act, 1962;
(iii) I impose a penalty of Rs. 20,00,000/- (Rs. Twenty lakhs only) upon Shri Prithvi Raj Tosawar under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars;
(iv) I impose a penalty of Rs. 10,00,000/- (Rs. Ten lakh only) upon Shri Ritesh Soni under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars Customs Appeal No.70325 of 2023 5 2.11 Against this order both appellant and owner filed the appeal before Commissioner (Appeal) challenging the penalties imposed under Section 112 (b) of the Customs Act, 1962. As per the impugned order the appeal of the appellant was dismissed and appeal of the owner was allowed and matter remanded to the original authority for de-novo consideration by following the procedure of Section 138B of the Customs Act, 1962.
2.12 Aggrieved appellant has filed this appeal.
3.1 I have heard Shri H K Pandey, Advocate for the Appellant and Shri Santosh Kumar, Authorized Representaive for the revenue.
3.2 Arguing for the appellant learned counsel submits that Appellant is neither owner or claimant of the gold seized and as such penalty under Section 112 (b) is unwarranted and bad in law;
Appellant had no opportunity to defend due to incarceration.
The statements recorded were involuntary and made under pressure.
The penalty was imposed without affording reasonable opportunity of hearing.
Penalty could not have been imposed only on the basis of incriminating statement of the co-accused as held in case of Sanjay Soni [20222 (381) ELT 509 (T-All)] 3.3 Authorized representative reiterated the findings recorded in the impugned order.
4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments.
4.2 Impugned order records as follows:
"4. Aggrieved with the order the appellants preferred these appeal on the following grounds:
Appellant -1 Customs Appeal No.70325 of 2023 6
(i) Penalty under section 112 is not imposable on the appellant without corroborative evidence.
(ii) Foreign nature of seized gold is not proved.
(iii) Smuggled nature of seized gold bar is not proved.
Appellant -2:
...........
5. Personal hearing in the case was held on 14/17.7.2020. Shri Debaditya Banerjee, Advocate, attended the hearing on 14.7.20202 on behalf of Appellant -1. Whereas Shri Arjit Chakrabarti, Advocate attended hearing on 17.7.2020 on behalf of Appellant-2. Therir submissions are summarized as under:
Appellant -1
(i) Condonation of delay in filing the appeal.
(ii) Reduction in quantum of penalty. Appellant -2 ........
6. I have gone through the case record. Nobody has claimed the ownership of the confiscated gold. Both the appellants have challenged the penalty imposed on them under section 112 of the said Act.
7. The impugned gold was recovered from Appellant-1 and he could not prove proper importation of the same. Under section 123 of the said Act, the burden to prove lawful importation of the impugned gold was on him. Therefore, imposition of penalty under section 112 of the said Act is sustainable. In the facts and circumstances of the case, particularly the value of the impugned gold which is about three and a half crore rupees, the quantum of penalty is also justified
8. However, the only ground for imposing penalty on Appellant-2 is statement of Appellant-1. There is no other corroboratory evidence to relate Appellant-2 to the Customs Appeal No.70325 of 2023 7 impugned gold. The appellant argued before the adjudicating authority as well at this appellate stage that without cross-examination of Appellant-l in terms of section 138B of the said Act, his statement cannot be admitted as evidence. From the impugned order it is apparent that the request of Appellant-2 for cross- examination of Appellant-1 was denied without justifying the same in terms of provisions of section 138B of the said Act. This has resulted in violation of principles of natural justice, Thus, the impugned order in respect of Appellant-2 is not sustainable and the same is set aside and the matter is remanded to theadjudicating authority to pass fresh order after complying with the provisions of the section 138B of the said Act. 9. In view of the above, the appeal of Appellant-1 is dismissed and appeal of Appellant-2 is allowed by way of remand."
4.3 The order in original records as follows:
I find that the impugned seized foreign origin gold weighing 11233.370 gm from Noticee No.2 namely Ritesh Soni valued @ Rs.3.44.63,006/- is recovered s/o Shri Sushil Soni . The Noticee No.2 had no documents with him to prove the impugned recovered and seized f/o gold licit. The Noticee no.2 also confessed that the said impugned gold was smuggled from Bangladesh into India. Panchnama dated 23.02.2018 contains that the said impugned f/o gold belonged to Shri Prithvi Raj Tosawar, Proprietor M/s Sawar Mal Jewellers Kolkata (SMJ). Noticee No.2 namely Ritesh Soni s/o Shri Sushil Soni, in his statement recorded u/s 108 of the Customs Act, 1962, again confirmed that the recovered and seized impugned f/o gold belonged to his uncle Shri Prithvi Raj Tosawar, Prop. Of SMJ and M/s Umang Jewelers, Kolkata. However, the Noticee no. 2 namely Shri Prithvi Raj Tosawar , in his defence submission to the notice dated 07.08.2018 , denied the ownership of the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/ - . Therefore, I find that no Customs Appeal No.70325 of 2023 8 documents are available to prove that the seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/-
is licit, and also that there is no claimant of this seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/-. I find that "gold" is covered u/s 123 of the customs act, 1962. Therefore, keeping the provisions of section 123 of the Act in mind, taking cognizance of the facts contained in the Panchnama & Seizure Memo, both dated 23.02.2018 read with the confession made by the Noticee No. 2 in his statement dated 23.02.2018 recorded u/s 108 of the Customs Act,1962, I find that the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- has been smuggled into India from Bangladesh in contravention to the provisions of 7(1)(c), 11, and 46 of Customs Act,1962 read with Rule 3 of the foreign trade (development & regulation) Act,1992 and Rule 11 & 12 of the foreign trade (Regulation) rules,1993. Therefore, the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- is liable to confiscation under section 111(b) & 111(d) of the Customs act,1962. Since, there is no claimant of the said gold, no consideration under section 125 of the Customs Act, 1962 is required to be discussed. Thus, the said impugned gold confiscation under section 111(b) & 111(d) of the Customs act, 1962. is liable to absolute In view of above findings, two cloth belts (kamarband), designed especially for gold ornaments manufactured from the gold bars smuggled into India from concealment of the gold bars and one trolly bag used for concealment of the Bangladesh are also liable to confiscation u/s 119 of the Customs act, 1962.
Since, the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- has been found liable to absolute confiscation under section 111(b) & 111(d) of the Customs act,1962 & the recovery is made from notice Customs Appeal No.70325 of 2023 9 No. 2, hence, I find the Noticee No. 2 liable to penal action u/s 112(b) of the Customs act, 1962.
I find that the defence reply dated 13.08.2019 submitted by the Noticee no.1 contests the allegations made in the notice dated 07.08.2018. The Noticee No. 1 has sought cross- examination of officers and Noticee no.2. I find that the findings of investigation carried out by the officers are contained in the instant notice and the notice no. 1 had full liberty to counter them in his defence reply dated 13.08.2019 but he wasted it by raising irrelevant questions in it. Noticee No. 1 vide his letter dated 16.05.2019, duly attested by the jailor, distt. Jail- Varanasi, informed that he was in jail and requested to differ adjudication till he could depute counsel to defend his case & no defence has been filed by him or by anyone on his behalf. The Adjudication proceedings cannot be differed for any length of time, rather it has to be performed within a reasonable time frame. So cross-examination request of the Noticee no. 1 cannot be acceded to. Besides this, I find that the adjudication proceedings are performed on the basis of records made available by the department as well as by the Noticees, it is never meant for initiating fresh investigation as requested. Therefore, the present proceedings of adjudication has be carried out on the basis available documents only & the Noticee No. 1 has not provided any document pertaining to his statement dated 09.05.2018.
I find his disagreement to the inferences drawn banking upon the confession of the Noticee no. 2 need to be discussed. I find that none of notice no. 1 figures in the panchnama & seizure memo , both dated 23.02.18, because the Noticee No.2 admitted to the effect that the recovered & seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- immediately after intercepted & recovery of the said gold. Later, he reiterated it in his statement dated 23.02.2018 recorded u/s 108 of the Customs Act, Customs Appeal No.70325 of 2023 10 1962. I find it pertinent to mention that the Noticee No.2 has never retracted his submission till date. Name of the Noticee no.1 has figured at very first moment of the case when element of surprise of the operation leading to interception of the Noticee no.2 left no scope for any kind of manipulation & disclosure at this juncture by the Noticee no.2 ought to be admitted as truth, subject to corroborative circumstantial evidences found in the investigation followed. The details of both the shops of jewellaries, & existence of the named person i.e. Prithvi Raj Tosawar involved in the business of gold have been found correct. Disclosure of mobile no. 8017634160 was also found correct to the extent that the said mobile no. 8017634160 had ample conversations, time and again, with the mobile no.9874228622 of the Noticee no. 2. The Noticee No. 1 contests this on pretext of absence of details of the subscriber. In this regard, I find that it is not necessary that a man uses only a mobile no. subscribed to him and if anyone is indulged in any kind of unscrupulous activities, one will prefer a mobile no. issued in name of some other person to plead innocence on same excuse as is placed by the Noticee No. 1 in the instant case, especially because I find that the Noticee no. 1 has failed to reason as to why only his name is taken by the Noticee no. 1. It is significant to note that the Noticee No.1 has not denied using of mobile no. 8017634160, he has just raised question over subscriber's details. I find ratio of the judgment in case of CC vs D. Bhoormull 1983 (13) ELT 1546 (SC) applicable here , wherein It was held ,"Department is not required to prove its case with mathematical precision, but what is required is the establishment of such a degree of probability that a prudent man may on its basis believe in the existence of facts in the issue......prosecution is not obliged to prove as part of its primary burden the facts which are especially within the knowledge of accused. Since smuggling is done secretly, it is impossible for preventive department to Customs Appeal No.70325 of 2023 11 unravel every link of the process. ..... It is for him (accused) to explain or establish those facts within his peculiar knowledge, failing which the prosecution will be entitled to take advantage of the presumption of facts arising against him, in discharging its burden of proof . .....Deptt. Would be deemed to have discharged its burden (of proof) if it adduces so much evidence , circumstantial or direct , as is sufficient to raise a presumption in its favour with regard to the existence of fact sought to be proved." The Apex Court ruling was quoted & followed in case of Devi Dass Garg Vs. CCE (2010) 257 ELT 289 CESTAT, in case of charge of clandestine removal of goods.
Therefore, I find the defence submission of the Noticee no.1 an afterthought and find the submission of Noticee No. 2 made immediately after the recovery of the said gold more relevant and genuine. Thus, I find Noticee no.1 also liable to penalty under section 112(b) of the Customs Act, 1962."
4.4 From the facts as recorded in the orders of the lower authority it is quite evident that the Appellant was arrested on 23.02.2018 and produced before the CJM (Economic Offences) on the same date thereafter he continued to be in judicial custody. He never retracted from the statement made by him under Section 108 of the Customs Act, 1962, nor ever complained with regards to the fact that his statement was recorded under duress or by force. He was suitably represented before the Commissioner (Appeal) in by the counsel, wherein also no such averment was made. In my view if Appellant had any such grievance he could have stated the same before the CJM before whom he was produced, Jailor, District Jail Varanasi while in judicial custody or before the Commissioner (Appeal). The averment made by the appellant to this effect in this appeal before the tribunal and at the time of hearing of appeal, is nothing but an afterthought and needs to be rejected. Thus the submission made by the appellant that his statement that 23.02.2018 was not voluntary lacks merit.
Customs Appeal No.70325 of 2023 12 4.5 In case of K I Pavunny [1997 (90) E.L.T. 241 (S.C.)] following has been held:
"19. Next question for consideration is : whether such statement can form the sole basis for conviction? It is seen that, admittedly, the appellant made his statement in his own hand-writing giving wealth of details running into five typed pages. Some of the details which found place in the statement were specially within his knowledge, viz., concealment of the 200 biscuits in his earlier rented house till he constructed the present house and shifted his residence and thereafter he brought to his house and concealed the same in his compound; and other details elaboration of which is not material. The question then is :
whether it was influenced by threat of implicating his wife in the crime which is the sole basis for the claim that it was obtained by threat by PW-2 and PW-5? In that behalf, the High Court has held that it could not be considered to be induced by threat that his wife will be implicated in the crime and accordingly disbelieved his plea. It is seen that admittedly after the appellant gave his statement, he was produced before the Magistrate though no complaint was filed and was released on bail. He did not complain to the Magistrate that Ex. P-4 statement was given under inducement, threat or duress. It was raised only subsequently making accusations against PW-5, the Inspector of Customs. Therefore, obviously it was only an afterthought. The High Court, therefore, rightly has not given any weightage to the same. It is true that the Magistrate has given various reasons for disbelieving the evidence of PW-3, the panch witness who had also, at one point of time, indulged in smuggling. It is unlikely that PW-3 would bring 200 gold biscuits of foreign marking and conceal them in the compound of the appellant without appellant's knowledge for safe custody. It is not his case that he had facilitated PW-3 in concealing them in his Customs Appeal No.70325 of 2023 13 compound. The place of concealment of the contraband is also significant at this juncture. It is just near and visible from the window of his bed-room through which he or family members could always watch anyone frequenting the place where the contraband was concealed. This fact becomes more relevant when we consider that after concealment of the contraband in the compound one would ensure that others having access to the compound may not indulge in digging and carrying away the same. As soon as the appellant and/or the members of his family had sight of such visitor or movement by others, they would immediately catch hold of such person or would charge them. Obviously, therefore, it would be the appellant who had concealed 200 gold biscuits of foreign marking in his compound at a place always visible from his bed-room window. Therefore, the High Court was right in its conclusion, though for different reasons, that Ex. P-4 is a voluntary statement and was not influenced by threat, duress or inducement etc. Therefore, it is a voluntary statement given by the appellant and is a true one.
20. The question then is : whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5.
It is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one Customs Appeal No.70325 of 2023 14 of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the Customs Appeal No.70325 of 2023 15 light of given set of facts. The high degree of proof and probative value is insisted in capital offences.
21. In Kashmira Singh's case the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for Bench of three-Judges laid down the law that the Court requires to marshall the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant Kashmira Singh of the charge of murder. The appellant was acquitted of an offence under Section 302 IPC but was convicted for the offence under Section 201 IPC for destroying the evidence of murder and sentenced him to seven years rigorous imprisonment. This decision was considered by a four-Judge Bench in Balbir Singh v. State of Punjab - AIR 1957 SC 216 wherein it was held that if there is independent evidence, besides the confession, the rule that the confession could be used only to corroborate the other evidences loses its efficacy. Therefore, it was held that if the retracted confession is believed to be voluntary and true, it may form the basis of a conviction but the rule of practice and prudence requires that it should be corroborated by independent evidence. Therein also, for the charges of capital offence, the trial Court did not accept the confessional statement of co-accused containing inculpatory and self-exculpatory statement. The High Court reversed the acquittal and convicted the accused, accepting that part of the confessional statement of the accused which was Customs Appeal No.70325 of 2023 16 corroborated from other evidence. This Court upheld the conviction and held that it is not necessary that each item of fact or circumstance mentioned in the confessional statement requires to be corroborated separately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh's case was referred to.
22. In Hem Raj v. The State of Ajmer - 1954 SCR 1133 a three-Judge Bench to which Bose, J. was a member, was to consider whether retracted confession of an accused could be corroborated from the material already in the possession of the police prior to the recording of the confession. Therein the confession was recorded under Section 164 of the Code during the committal proceedings but at the trial it was retracted. This Court held that the evidence already on record of the police could be used to corroborate the retracted confession.
23. In Haricharan Kurmi & Jogia Hajam v. State of Bihar - AIR 1964 SC 1184 a Constitution Bench was to consider as to when the confession of a co-accused could be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co-accused cannot be treated as substantive evidence. If the Court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deducible from the said evidence, the confession of the co-accused could be used. It was, therefore, held that the Court would consider other evidence adduced by the prosecution. If the Court on confirmation thereof forms an opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the accused. It is, thus, seen that the distinction has been made by this Court between the confession of an accused and uses of a confession of the co- accused at the trial. As regards the confession of the Customs Appeal No.70325 of 2023 17 accused and corroboration to the retracted confession, in Girdhari Lal Gupta & Another v. D.N. Mehta, Assistant Collector of Customs & Another - 1970 2 SCC 530 a Bench of two-Judges considered and held that if the evidence of an investigating officer is found to be reliable, whether it can be used to corroborate the evidence depends on the facts of each case. In that case, relating to the offence under Foreign Exchange Regulation Act, it was held that the evidence of the investigating officer and other evidence could be used to corroborate the recoveries made of the Indian currency being exported. This Court upheld the conviction of the accused.
24. In Nishi Kant Jha v. The State of Bihar - 1969 (1) SCC 347, another Constitution Bench was to consider whether, when a part of the confessional statement is inculpatory and the other part exculpatory, the former point was admissible in evidence. It was held that the exculpatory part was inherently improbable and was contradicted by other evidence and was, therefore, unacceptable. The incriminating circumstances contained in the inculpatory part of the statement were accepted to confirm the conviction of the capital offence. The law laid down by a three-Judge Bench in Chandrakant Chimanlal Desai's case is not inconsistent with the above exposition of law.
25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make 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 the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine Customs Appeal No.70325 of 2023 18 whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is 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 that the retracted confession is true, that part of the inculpatory portion could be relied upon to base confiction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution.
26. In Naresh J. Sukhawani v. Union of India - 1996 (83) E.L.T. 258 (S.C.) = 1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross- examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though Customs Appeal No.70325 of 2023 19 retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve.
31. It is seen that the contraband of 200 gold biscuits of foreign marking concealed in a wooden box and kept in the pit in the compound of the appellant was recovered at 9.00 a.m. on December 6, 1980 in the presence of Panch (mediator) Witnesses including PW-3. This is proved from the evidence of PWs 2, 3 and 5. There was nothing for PW-3 to speak falsehood against the appellant who is a friend of Customs Appeal No.70325 of 2023 20 him. PWs 2 and 5 also withstood the grueling cross- examination. There is nothing to disbelieve their evidence. The appellant herein made statement under Section 108 at 1 p.m. on December 6, 1980, i.e., after four hours. It is unlikely that during that short period PW-2 and 5 would have obtained the retracted confession under Ex. P-4 in his own hand-writing running into 5 typed pages under threat or duress or promise. No doubt the wealth of details by itself is not an assurance of its voluntary character. The totality of the facts and circumstances would be taken into account. On a consideration of the evidence, the High Court accepted that Ex. P-4 is a voluntary and true confessional statement and accordingly it convicted the appellant of the offences. It is seen that Ex. P-4 was given in furtherance of the statutory compulsion and the appellant made statement in unequivocal terms admitting the guilt. It is seen that in Barkat Ram's case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhar's case and also in Rustom Das's case the retracted confessional statement found basis for conviction and in the latter the recoveries were relied as corroborative evidence. In Haroom Abdulla's case, this Court used the evidence of co-accused as corroborative evidence.
32. It is true that in criminal law, as also in civil suits, the trial Court and the appellate Court should marshal the facts and reach conclusion, on facts. In a criminal case, the prosecution has to prove the guilt beyond doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt of a doubting Thomas or of a weak mind is not the road to reach the result. If a Judge on objective evaluation of evidence and after applying relevant tests reaches a finding that the prosecution has not proved its case beyond reasonable doubt, then the accused is entitled to the benefit of doubt for acquittal. The question then is : whether the Customs Appeal No.70325 of 2023 21 learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not every fanciful reason that erupted from flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings that the prosecution has proved the case based upon the confession of the appellant given in Ex. P-4 under Section 108 of the Evidence Act and the evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt and the High Court has committed no error of law.
33. Section 135 provides that "without prejudice to any action that may be taken under the Act", (emphasis Customs Appeal No.70325 of 2023 22 supplied) if any person is, in relation to any goods in any way, knowingly concerned in any prohibition imposed under the Act for the time being in force with respect to such goods or acquires possession of any goods which he knows or has reason to believe are liable to confiscation under Section 111, then he shall be liable to conviction under sub- section (1) thereof and shall be liable to punishment under sub-section (2) thereof. Similarly, under the Gold (Control) Act, which was in operation at the relevant time, whoever in contravention of the provisions of that Act or order made thereunder, among other things, owns or has in his possession, custody or control any primary gold, is liable, without prejudice to any other action that may be taken under that Act, for punishment of imprisonment prescribed for the purpose. Under Section 86, whoever fails to make a declaration enjoined under sub-section (12) of Section 16 without any reasonable cause, is liable to punishment of imprisonment prescribed for the purpose. The offences are proved from the evidence."
4.6 The factum of recovery of the illicitly imported/ smuggled gold of foreign origin from the possession of the appellant is not in dispute. No claimant has come forward to claim the ownership of the gold valued at more than Rs 3 crore. Appellant was not only carrying the gold but was also aware of it smuggled nature as is evident from his statement and details revealed by them in his statement recorded on 23.02.2018. The details revealed were corroborated by the presence of the shops and persons owning such shop for whom he was carrying this gold. The corroboration of the facts stated by the appellant in his statement are sufficient enough to adduce his knowledge about the smuggled nature of the gold which has been held liable for confiscation under Section 111 (b) and (d) of the Customs Act, 1962.
4.7 Appellant was duly represented before the Commissioner (Appeal) and his counsel has at the time of personal hearing Customs Appeal No.70325 of 2023 23 pleaded only for the reduction of penalty. Hence I do not find any merits in the submissions made to the effect that he was not afforded opportunity to defend himself by the lower authorities. This submission also lacks merits.
4.8 The decision relied upon by the appellant also is a decision rendered in the facts of that case without even referring to the decision of Hon'ble Supreme Court in case of K I Puvanny. Hence that decision do not the support the acse of the appellant.
4.9 Adjudicating authority has in the order in original referred to the decision of Hon'ble Supreme Court in case of D Bhoormull. I find that the facts and circumstantial evidence adduced in the present case are sufficient to hold appellant guilty of the offence of abetting in the act of smuggling of gold, contrary to the express provisions of Customs Act, 1962. Hence he is liable to penalty under Section 112 (b) ibid.
4.10 The facts point that appellant is a habitual offender carrying huge quantity of smuggled gold from Kolkata for delivery in Kanpur and other places. He has admitted so in his statement recoded under Section 108. Taking note of the value of the confiscated gold (more than Rs 3 Crore) and the fact that appellant has been involved in commission of similar offences in past as per his own statement, I do not find that the penalty imposed upon him of Rs 10,00,000/- to be excessive. Thus I do not interfere with the quantum of penalty imposed by the adjudicating authority and upheld by the appellate authority.
5.1 Appeal is dismissed.
(Order pronounced in open court on-05 August, 2025) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp