Bombay High Court
State Of Maharashtra vs Hasmukh Hargovind Shah on 17 November, 1992
Equivalent citations: 1993CRILJ1953
JUDGMENT
1. The State of Maharashtra, through this appeal has assailed the correctness of an order of acquittal passed against the respondent in Criminal Appeal No. 280 of 1982 by the learned Additional Sessions Judge, Greater Bombay, on 22-8-1985. The respondent-accused was the original accused No. 3 and was put on trial along with five other accused persons before the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay. The six accused stood charged with having committed offence punishable under the provisions of the Imports and Exports (Control) Act and the Customs Act.
2. Briefly stated, it was alleged that the accused No. 3 who is the present respondent and who was working in Dubai at the relevant time had along with the remaining accused been parties to an ingeneous method of smuggling various foreign items into the country. The prosecution contended that accused No. 3 used to dispatch parcels by sea, to certain destinations via Bombay and that the routing of these parcels was such that the transhipment had to take pace at Bombay. While the parcels were at Bombay, it is alleged that the two of the remaining accused who worked in the Foreign Post Office used to open the parcels in question and take out the contraband such as watches, costly sarees etc and that the remaining accused used to dispose of them. In the month of August, 1978 a consignment of 11 such parcels had arrived in Bombay and it is alleged that pursuant to the arrest of the accused persons that they admitted to their activities in the course of their statements recorded under S. 108 of the Customs Act. It is further alleged that three of the parcels in question were opened by the Customs authorities on accused No. 3 pointing them out and that they were found to contain watches and watch straps collectively valued at Rs. 95,310/- at local market value. The accused were thereafter arrested and put on trial before the learned Magistrate. After hearing the parties and scrutinising the evidence, the learned Magistrate discharged accused Nos. 1, 4, 5 and 6. The cases of accused Nos. 2 and 3 were separated because in the opinion of the trial Court, accused No. 2 could only be held liable in respect of certain other transactions, pertaining to sarees etc. The trial, therefore, proceeded against original accused No. 3. The prosecution evidence consisted of his statement recorded under S. 108 of the Customs Act on 5-8-78 and his alleged identification of the parcels on 7-8-1978, as also the evidence of the concerned Departmental Officers. The statement of the accused had been retracted by him apart from which, he had filed certain applications before the trial Court in which he had made serious charges against the customs officers in respect of his having been tortured, assaulted, intimidated etc. The learned trial Magistrate accepted the prosecution evidence and convicted the appellant under both heads and awarded him a sentence of rigorous imprisonment for six months and fine of Rs. 10,000/- in default rigorous imprisonment for two months under the first charges and rigorous imprisonment for 2 months and fine of Rs. 3,000/- in default rigorous imprisonment for one month under the second head of charge. The matter was thereafter carried in appeal to the Court of Sessions and the learned Sessions Judge after a very detailed and careful consideration of all the materials before him as also the law on the point, set aside the conviction and acquitted the accused of both the heads under which he had been convicted. It is against this order of acquittal that the present appeal has been filed.
3. The learned A.P.P. contends that the interference by the appeal Court was unjustified. It is his submission that the retraction of the 108 statement and the allegations made against the Customs Officers are routine and that there is nothing special to distinguish this case from several other similar ones. He submits that there is no bar to the Court excepting the varacity of the statement recorded under S. 108 of the Customs Act; that it is now well settled law that such a statement is admissible and that the same can be relied on in evidence and further more that the remaining facts and circumstances on record of this case are strong enough to sustain the conviction. He has seriously questioned the reasoning of the appeal Court whereby the evidence of the Customs Officers has been doubted on material points and the learned A.P.P. submits that the Court was not justified in recording the finding that the statement was not voluntary. The learned A.P.P. also contends that the identification by the accused of the three parcels is a separate, individual distinct act and is totally unconnected with the recording of his statement and that therefore the view taken by the learned Additional Sessions Judge is erroneous in law.
4. Mr. Palekar has relied on the evidence which is rather copious in this case for the purposes of establishing that there was sufficient material to bring home the charges against the accused both under the provisions of the Imports and Exports (Control) Act as also under the provisions of the Customs Act. He therefore contends that the appellate order be set aside and that the conviction recorded by the trial Court be restored.
5. Mr. Kotwal, learned counsel appearing on behalf of the respondents has supported the appellate judgment and he points out to me, with some justification to my mind, that this Court is dealing with a judgment wherein the accused has been acquitted. He reiterates the position in law that interference with such a judgment can only be done in those of the few instances where it is demonstrated that the lower Court has ignored the material evidence of that it has recorded findings which can be characterised as not only incorrect but virtually perverse and having resulted in a failure of justice or miscarriage of justice. Tested from any of these angles Mr. Kotwal submits that the appellate judgment is of such a caliber that does not deserve to be disturbed. In the first instance Mr. Kotwal submits that the learned Additional Sessions Judge has taken the trouble to examine the evidence threadbare and that, therefore, the common place grievance that some part of the record has been ignored cannot be made in the present case. As regard the consideration and appreciation of this evidence it is Mr. Kotwal's contention that this has been done judiciously and correctly, and that the findings are therefore perfectly justified. On the question of consideration of the law, Mr. Kotwal, heavily supports the finding and he has further contended, that it is wholly impermissible to take any other view on the facts of the present case.
6. It is true that as pointed out by learned counsel for the respondents that the appeal Court has embarked on a very careful and complete re-appraisal of the entire record that was placed before that Court. The learned Judge has considered the evidence witness by witness, the examination-in-chief and the cross-examination, and on the basis of this scrutiny has recorded the finding that in the first instance the statement of the accused recorded under S. 108 of the Customs Act can not be held to be voluntary statement. There are admissions on the part of the Customs Officer that this particular accused had not made any admissions in the first instance in spite of which the interrogation continued. Further more, it has come on record that the statement of the wife of the accused who was also shown as an accused by the Department before the trial Court, was first recorded and it was pointed out to the accused that both of them would be detained under CAFEPOSA if he did not make a clean breast of everything. In this situation the learned Judge has discarded the statement not only on the ground that it is tainted in so far as it is a retracted statement but more importantly on the ground that on the facts of the present case it cannot be treated as being a voluntary statement. As far as this aspect of the matter is concerned, after hearing learned counsel and perusing the record I have no hesitation whatsoever in holding that the finding deserves to be confirmed.
7. Coming to the second aspect of the matter, Mr. Kotwal has submitted that it is well settled law that even if the statement of the accused is held to be admissible and even if the Court construes it as being a voluntary statement that it cannot form the sole basis of conviction. The leading case on the point is the decision of the Supreme Court in the case of Shevantilal v. The State of Maharashtra but this position has thereafter been reiterated in several other decisions. The Supreme Court had in Aherraja Khima v. State of Sourashtra, dealt with the aspect of presumption of innocence that is available to an accused person and the situation where a reasonable explanation is tendered and had observed that a retracted confession cannot form the basis of a conviction. The Court had dealt with a situation whereby the validity of the confession is questioned on the ground that it is not voluntary or that it has been obtained by bulling the accused or by holding out an inducement that he would secure advantages by making a particular admission and in these circumstances had pointed out the dangers in relying on such a statement. It is true that in the earlier decisions , Percy Rustumji Besta v. State of Maharashtra and , Rameshchandra v. State of West Bengal, the Supreme Court had occasion to deal with the aspect of the admissibility of such a statement and it is now well settled law that since a Customs Officer is not a Police Officer a statement made to such an authority is admissible in evidence. Mr. Kotwal, has not disputed the admissibility but he has seriously assailed the evidentiary value of this statement in relation to the facts of the present case and to that extent the submission canvassed is a very sound and a valid one. In the case of Haroom Haji Abdullah v. State of Maharashtra, , the Supreme Court had occasion to observe that a Court should be put an caution while dealing with a statement under S. 108 of the Customs Act in so far as these statements are distinguishable from confessions recorded by a Magistrate who is a judicial authority and who observes the requisite preautions while recording such a statement. The credibility of statement in the latter case is undoubtedly much higher and this very valid distinction has been highlighted by the Supreme Court in the present case. Mr. Kotwal also drew my attention to a recent Division Bench ruling of the Andhra Pradesh High Court in the case of Krishnaprasad v. Directorate of Enforcement reported in 1992 Cri LJ 1888 wherein the Division Bench of the Andhra Pradesh High Court had occasion to deal with this very aspect of the matter and in a considered judgment had occasion to hold that it is a requirement of law when statements are recorded under S. 108 of the Customs Act that the accused be warned that the statement in question is liable to be used against him and that he should be put on notice. This last aspect of the matter is one of considerable significance because even if statements are admissible the Courts must take cognizance of the fact that the accused person, even if he had at that point of time not been placed under arrest was confined by the Department's Officers that his liberty was curtailed and that, therefore, the all important question is to whether or not in the circumstances so placed the accused would voluntarily make a statement requires carefuly scrutiny. Apart from this one needs to bear in mind the fact that the Court must also consider the possibility of coercion or inducement. In the present case, however, as indicated by me the voluntariness of the statement is in serious dispute and under these circumstances no conviction could be based on this statement.
8. Mr. Kotwal has also attacked the original findings whereby the accused is alleged to have identified and pointed out the three parcels and this circumstance has been used as a piece of corroborative evidence. Mr. Kotwal points out a fundamental error in the reasoning adopted by the trial Court wherein the learned trial Magistrate has erroneously delinked this particular piece of evidence from the earlier statement attributed to the accused. Mr. Kotwal submits, and very rightly to my mind, that there is virtually no distinction between admissions contained in the 108 statement and these admissions made by the accused that the parcels in question are the very ones which were despatched by him and he therefore submits that such material can never come under the head of independent corroboration. The learned counsel is fully justified and perfectly right in this submission in so far as the corroboration required for the purpose of basing a conviction on 108 statement alone must necessarily be independent which pre-supposes that it is distinct and separate from statements and admissions made by the accused.
9. On a very careful and thorough consideration of the material placed before me, I am of the view that the appellate judgment of the learned Additional Sessions Judge does not deserve any interference with. The appeal fails and accordingly stands dismissed. The bail boad of the respondent to stand cancelled.
10. Appeal dismissed.