Punjab-Haryana High Court
Sucha Singh Son Of Gurbachan Singh vs Assistant Collector Customs on 19 March, 2009
Crl. Revn. No.2078 of 2002
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Revn. No.2078 of 2002
Date of decision. 19.03.2009
Sucha Singh son of Gurbachan Singh, resident of
Naushera Dhalla, Police Station Gharinda, Amritsar.
....... Petitioner
Versus
Assistant Collector Customs, Department of Revenue,
Ministry of Finance, Union of India, Amritsar.
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present:Mr. A.K. Jain, Advocate
for the petitioner.
Mr. Vibhor Bansal, Central Government
Counsel for the customs.
****
Sham Sunder, J.
This revision petition is directed against the judgment dated 30.09.2002, rendered by the Court of Additional Sessions Judge, Amritsar,
vide which it dismissed the appeal, against the judgment of conviction and the order of sentence Crl. Revn. No.2078 of 2002 -2- dated 16.12.1999, rendered by the Court of Chief Judicial Magistrate, Amritsar, convicting the accused, for the offence, punishable under Section 135 of the Customs Act,(hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of four years, and to pay a fine of Rs.15,000/-, in default of payment of the same, to undergo further rigorous imprisonment, for a period of six months.
2. The facts, in brief, are that on 27.02.1991, at about 14.30 hours, a special picket (naka) was held by the Border Security Force Officials, consisting of Mange Ram, Inspector, Anil Anand, Sub Inspector, Shram Singh and some other personnels, in the area of Bhikhiwind, on Bhikhwind Amritsar road. The picket party observed a red colour tractor, coming from Bhikhiwind side, being driven by the driver and another person sitting by his side. The tractor was signalled to stop. It was stopped by the driver, about 50 yards away from the place, where the picket had been held. The driver and another person, sitting by his side, alighted from the tractor, and escaped,despite chase, having been given by the aforesaid officials Crl. Revn. No.2078 of 2002 -3- of the Border Security Force. Firing was not resorted to, to avoid civilian causalities. The presence of an independent witness was secured and the tractor was rummaged. After about half an hour, a specially made cavity was found below the steering and behind the meter panel board of the tractor, which resulted into the recovery of 310 gold biscuits of foreign origin bearing foreign marking packed in 31 packets. Panchnama and recovery memo were prepared, at the spot, in the presence of the witnesses. Subsequently, it was found that the tractor belonged to one Gurbachan singh r/o village Naushera Dhalla, who disclosed that one day earlier to the day of seizure, his tractor was taken by his son Sucha Singh and his friend, Swinder Singh (since demised), for getting the same repaired. The accused could not be arrested despite efforts.
2-A. It was further stated that on 21.03.1991, during a picket (nakabandi), held by the customs officials, both the accused were arrested. On personal search of accused Swinder
Singh (since demised), 78 gold biscuits of foreign origin, bearing foreign markings, were recovered. Crl. Revn. No.2078 of 2002 -4- Sucha Singh, accused, was accompanying him. Both the accused made voluntary statements, under Section 108 of the Act, confessing the smuggling of 390 gold biscuits of foreign markings, from Pakistan, out of which 310 gold biscuits were seized by the Border Security Force officials on 27.02.1991, from the aforesaid tractor, 78 gold biscuits were seized by the Customs Officials, and two gold biscuits, were disposed of by them (accused), Both the accused could not produce any valid document, for the lawful acquisition/ possession/importation of these gold biscuits, which were seized under Section 110 of the Act on the reasonable belief, that the same had been smuggled into India. 310 gold biscuits were handed over to the Customs Department, on 01.03.1991, through receipt alongwith Panchnama and recovery memo. These gold biscuits were got weighed, valued and tested, from Experts Vijay Kumar and Ghansham Dass, who opined that the same were of 24 carat purity, valued at Rs.1,26,51,100/-.78 gold biscuits recovered subsequently on 21.03.1991 were also taken into possession, through recovery-cum-seizure memo. These gold biscuits were also got weighed Crl. Revn. No.2078 of 2002 -5- valued and tested from Vijay Kumar and Ghansham Dass, who opined the same to be of 24 carat purity and valued at Rs.31,82,445/-. In the voluntary statements, made by the accused, which were reduced into writing, they admitted the manner of importation and factum of recovery, as stated above. It was further stated that the acquisition/ possession/importation and indulgence in the aforesaid activities of smuggling of gold, was in contravention of the provisions of Import Control Order No.17/55, as amended, issued under Section 3 (1) of the Imports and Exports Control Act, 1947 read with Section 11 of the Customs Act, 1962, and Section 13 of the Foreign Exchange Regulations Act, 1973. It was further stated that the accused, thus, committed an offence, punishable under Section 135 of the Act. Accordingly, a criminal complaint, was filed against the accused.
3. The accused were summoned to face trial, for the offence, punishable under Section 135 of the Act. Swinder Singh, accused, died, during the pendency of trial and, as such, the proceedings against him stood abated. Crl. Revn. No.2078 of 2002 -6-
4. In pre-charge evidence, the complainant examined Davinder Singh, Inspector Customs,(PW-1) and Kulmohan Singh, Superintendent Customs, (PW-2).Thereafter, the pre-charge evidence was closed.
5. After hearing the Counsel for the parties, and, on going through the pre-charge evidence, the trial Court, found that a prima-facie case was made out, for the commission of offence, punishable under Section 135 of the Act, against the accused. Accordingly,the charge was framed against him, to which he pleaded not guilty and claimed judicial trial. He also stated that he wanted to further cross-examine the witnesses, examined before charge.
6. In the after charge evidence, Davinder Singh, Inspector Customs,(PW-1) and Kulmohan Singh, Superintendent Customs, (PW-2), were further cross- examined, by the accused. The complainant also examined Mange Ram, Inspector. Thereafter, the after charge evidence was closed, by the complainant.
Crl. Revn. No.2078 of 2002-7-
7. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the evidence of the complainant. He pleaded false implication. He, however, did not lead any evidence in his defence.
8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
9. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by Sucha Singh,accused-appellant, which was dismissed vide judgment dated 30.09.2002, by the Court of Additional Sessions Judge, Amritsar.
10. Still feeling dis-satisfied, the instant revision petition, was filed by the revision-petitioner.
11. I have heard the Counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully. Crl. Revn. No.2078 of 2002 -8-
12. The Counsel for the revision-
petitioner, submitted that the revision-petitioner was not found in possession of the aforesaid gold biscuits on any occasion. He further submitted that the Courts below recorded the conviction and awarded sentence to the accused merely on the basis of his alleged confessional statements, under Section 108 of the Act, recorded by the Customs officers. He further submitted that the Customs officers, being Police Officers, the confessional statements, allegedly made before them by the accused, were hit by the provisions of Section 25 of the Indian Evidence Act, 1872 and, thus, were not legally admissible. He further submitted that no other evidence was produced by the complainant to prove that the accused was found in possession of the gold biscuits, aforesaid and thus, he committed the offence, punishable under Section 135 of the Act. He further submitted that the Courts below were, thus, wrong in recording conviction, and awarding sentence, on the basis of legally inadmissible statements, under Section 108 of the Act, allegedly made by the accused, resulting into miscarriage of justice. He, thus, submitted that Crl. Revn. No.2078 of 2002 -9- the judgments of conviction and the order of sentence, being perverse and illegal, are liable to be set aside.
13. On the other hand, the Counsel for the respondent submitted that the voluntary confessional statements made by the accused, before the Customs officers, under Section 108 of the Act, were legally admissible. He further submitted that the Customs officers are not the Police Officers and, as such, the confessional statements were not hit by the provisions of Section 25 of the Indian Evidence Act. He further submitted that the Courts below were right, in recording conviction, and awarding sentence, to the accused, on the basis of the said statements. He further submitted that the judgments of conviction and the order of sentence, rendered by the Courts below, are legal and valid, and the same deserve to be upheld.
14. The first question, that arises for consideration, is, as to whether, the voluntary confessional statements Ex.PX dated 24.03.1991,and Ex.PY dated 26.03.1991, made by the revision- petitioner, under Section 108 of the Act before the Customs officials, are admissible into evidence or Crl. Revn. No.2078 of 2002 -10- not. In State of Punjab vs.Barkat Ram,AIR,1962 (Supreme Court) 276, a decision rendered by a three Judge Bench, the Apex Court was called upon to consider whether the Customs Officers to whom the confessional statements were made could be said to be the Police Officers, within the meaning of Section 25 of the Evidence Act. On behalf of the prosecution, it 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 respondents, on the other hand, contended 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 Crl. Revn. No.2078 of 2002 -11- 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 Customs Officers, had been invested 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.
15. 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 to be deemed 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 Customs Officer exercising the powers, to make an enquiry, could not submit a report, 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.
Crl. Revn. No.2078 of 2002-12-
16. In Illias v. Collector of Customs, Madras, AIR 1970 ( Supreme Court ) 1065, the same very Bench was required to consider, if the Customs 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.
17. In Pavunny v. Assistant Collector 1997(3) RCR, 71 ( SC ), a judgment rendered by a three Judge Bench of the Apex Court, it was held that the confessional statement, made before a Customs Officer, was admissible, as he is not a Police Officer, within the meaning of Section 25 of the Evidence Act, though he is invested with many of the powers, which an officer-incharge of the Police Station exercise, while investigating an offence. It was also held that though a Customs Officer,is a person in authority, within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the Crl. Revn. No.2078 of 2002 -13- 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 same statement, is admissible in evidence on the complaint laid by the Customs Officer.
18. In Veera Ibrahim v. The State of Maharashtra 1976(2) SCC 302 , the appellant was arrested by the Police on December 12, 1967, on suspicion, of having committed an offence under Section 124 of the Bombay Police Act, and panchnama of the packages, in the truck, was also prepared, but the Police did not register any case or enter any FIR, nor the police opened the packages or prepared the inventories of the goods packed therein. The police dropped further proceedings, but informed the Customs Authorities, which opened the packages, inspected the goods, and on finding the same to be contraband goods, seized the same under a panchnama. The Customs Authorities called the appellant, and his companion, to the Customs House, took them into custody, and after due compliance with the requirements of law, the Crl. Revn. No.2078 of 2002 -14- Inspector of Customs questioned the appellant and recorded his statement under Section 108 of the Customs Act. Subsequently, he was charged and tried for the offences under Sections 135(a) and 135(b) of the Customs Act, 1962, and Section 5 of the Imports and Exports (Control)Act, 1947. In these circumstances, the question which arose, before the Apex Court, was, as to whether, such statement made under Section 108 of the Customs Act, by the appellant, therein, were hit by the provisions of Section 25 of the Evidence Act and, as such, inadmissible into evidence, being in the nature of confession or not. While answering the poser, the Apex Court held 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 Crl. Revn. No.2078 of 2002 -15- in his prosecution. In these circumstances, it was held by the Apex Court, that when the statement of the appellant, was recorded, by the Customs 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 offences, 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.
19. 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 Customs Officers, under Section 108 of the Act if found to be voluntary would be legally admissible into evidence. The Counsel for the revision-petitioner, however, placed reliance on Noor Aga v. State of Punjab and another, 2008(3) RCR (Criminal) 633 (SC), a decision rendered by Crl. Revn. No.2078 of 2002 -16- two Hon'ble Judges of the Apex Court, in support of his contention, that since the Customs Officers, are Police Officers, confessional statements, made by a person, before them, under Section 108 of the Act, was 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 can 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 revision-petitioner, being without merit, must fail, and the same stands rejected.
20. The next question that arises for consideration, is as whether the retracted confessional statements made by Sucha Singh, under Section 108 of the Act, before the Customs Officers, confessing his guilt, could be made the basis of conviction or not. In the instant case, Sucha singh, for the first time, in his statement, under Section 313 of the Code of Criminal Crl. Revn. No.2078 of 2002 -17- Procedure, retracted from his confessional statements Ex.PX and Ex.PY, saying that he was forced to sign the blank papers. He further stated that he did not make any such alleged statements. The recovery in this case was effected on 27.02.1991, and 21.03.1991 whereas the statements of Sucha Singh, under Section 313 of the Code of Criminal Procedure accused(now revision-petitioner) was recorded on 25.01.1999. It means that Sucha Singh retracted from his statements for the first time, after about eight years. In case he had not made any such confessional statements, under Section 108 of the Act, he had many occasions, when he was produced before the Court, during the course of remand and even during the course of trial, to retract from such statements. The mere fact that he has retracted from such confessional statements, after about eight years, in itself, goes to show that he voluntarily made the same, but lateron his retraction was only an afterthought. The voluntary confessional statements made by the accused coupled with the recovery of gold biscuits, with regard to the possession/acquisition/ importation whereof he could not produce any proof, Crl. Revn. No.2078 of 2002 -18- were sufficient to record his conviction and award him 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 Customs Officers. The accused retracted from his voluntary confessional statements, 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 statements. The principle of law, laid down, in Union of India's case (supra) is fully applicable to the facts of the instant case. The submission of the Counsel for the revision- petitioner, being without merit, must fail, and the same stands rejected.
21. The concurrent findings, recorded by the Courts below, based on the correct appreciation of the cogent, convincing, reliable and trust- worthy evidence of Davinder Singh, Inspector Customs,(PW-1), who deposed with regard to the recovery of gold biscuits, aforesaid, from Swinder Singh, (since deceased), who was accompanied by Sucha singh, revision-petitioner, Kulmohan Singh, Superintendent Customs, (PW-2), who also made a Crl. Revn. No.2078 of 2002 -19- similar statement, and Mange Ram, Inspector,(PW-3) of Border Security Force, coupled with the voluntary confessional statements made by the revision-petitioner, 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. It is settled principle of law, that the Court in its revisional jurisdiction, cannot re-evaluate and re- appreciate the evidence, produced by the parties, until and unless, it comes to the conclusion, that the findings recorded by the Courts below, are perverse or erroneous, on account of mis-reading of evidence. The careful perusal of the judgments of the Courts below, in context with the evidence and voluntary confessional statements made by the accused(revision-petitioner) under Section 108 of the Act, does not indicate that the same are either perverse or illegal or erroneous on account of mis-reading of evidence. Under these circumstances, no ground, whatsoever, is made out, to interference with the judgments of the Courts below. The same deserve to be upheld.
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22. No other point, was urged, by the Counsel for the parties.
23. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed. The judgment of conviction and the order of sentence dated 16.12.1999, rendered by the Court of the Chief Judicial Magistrate,Amritsar, and the judgment dated 30.09.2002,rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld. If the revision-petitioner is on bail, his bail bonds shall stand cancelled.
24. The Chief Judicial Magistrate, Amritsar,is directed to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.
25. The District & Sessions Judge, Amritsar, shall ensure that the directions, aforesaid, are complied with by the Court of the Chief Judicial Magistrate, within the stipulated period and the compliance report is sent immediately, thereafter, to this Court. Crl. Revn. No.2078 of 2002 -21-
26. The Registry shall keep track of the matter, and put up the compliance report immediately on receipt thereof. Even if, the same are not received, within the stipulated period, the papers shall be put up, within 10 days, after the expiry thereof, for further action.
(SHAM SUNDER)
March 19, 2009 JUDGE
dinesh