[Order]. - The Directorate of Revenue Intelligence (‘DRI’) seeks leave to appeal against the impugned judgment dated 31st August, 2009 passed by the learned Additional Chief Metropolitan Magistrate (‘ACMM’) in Complaint Case No. 202/1, acquitting the respondent of the offence under Section 135(1)(b) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947.
2. It must be mentioned at the outset that three persons were arraigned as accused in the complaint filed by the DRI. Accused No. 1, Bantoo Lal (A-1) and Accused No. 2, Harbhajan Singh (A-2), were both declared Proclaimed Offenders (‘POs’) during the pendency of the complaint. Consequently, the complaint proceeded only against Accused No. 3, Mahendera Kumar Singhal (A-3), the respondent herein.
3. Acting on an information, the officers of the DRI, mounted a round-the-clock surveillance on 1st October, 1988 at Hapur Chungi, Ghaziabad. They were ultimately successful in intercepting a truck bearing registration No. DIL-1294. The truck was driven by A-1. The other occupant of the truck was A-2. On checking the truck, the officers of the DRI found that beneath the gunny bags containing empty glass bottles, the packages of Polyester Textured Yarn of foreign origin were loaded in the truck. The truck was taken to the CGO Complex, Lodhi Road, New Delhi. A search conducted in the presence of two independent witnesses revealed 79 packages of Polyester Textured Yarn of foreign origin weighing 45 kgs each, collectively weighing 3555 kgs, valued at Rs. 6,22,125/-, concealed beneath 140 gunny bags.
4. A-2 is even stated to have volunteered his confessional statement under Section 108 of the Customs Act. Another truck was also seized on 2nd October, 1988, from which again Synthetic Yarn of foreign origin and other imported goods were seized. The confessional statement of the driver of the truck was also recorded.
5. As far as the case against the respondent is concerned, it is alleged that he arranged the illegal import of Polyester Textured Yarn from Nepal. He was arrested on 3rd October, 1988 and produced before the ACMM on 4th October, 1988. It was stated in his remand application that he had made voluntary statements both on 2nd and 3rd October, 1988. Copies of the said statements have been marked as Ex.PW4/A and PW4/B.
6. Charges were framed in respect of the accused persons for the offences on 19th April, 2002. The prosecution examined the nine witnesses at the post-charge stage. In his statement under Section 313 of Cr. P.C., the respondent denied that the truck or the goods belonged to him. When asked about the statement recorded by the DRI Officers, he stated that ‘I was forced to admit my involvement’.
7. The trial Court after analysing the evidence concluded that the case against the respondent was not proved beyond reasonable doubt. Although, the prosecution cited as witnesses, persons who had named the respondent, none of them was produced for cross-examination. The said witnesses included Suresh, the second driver of the truck, a cleaner of the truck, a lift operator and a labourer Raghubir Singh. As far as the confessional statement of the respondent was concerned, since he had retracted it and there was no independent corroboration of the said statement, the trial Court concluded that the respondent was entitled to acquittal.
8. This Court has heard the submissions of Mr. Satish Aggarwala, learned counsel for the petitioner and Mr. Naveen Malhotra, learned counsel for the respondent.
9. Mr. Aggarwala submitted that learned trial Court has erred in not noticing decisions of the Supreme Court in Naresh J. Sukhawani v. Union of India - (S.C.), K.I. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate, Cochin - (1997) 3 SCC 721 = (S.C.) which held that even a retracted confessional statement could form the basis of a conviction. He submitted that a mere retraction was not sufficient unless it was proved by the respondent by himself entering into the witness box to explain the circumstances under which he was forced to give a confessional statement. Mr. Aggarwala sought to distinguish the decision in Noor Aga v. State of Punjab - 2008 (3) JCC (Narcotics) 135 as being made in the context of the NDPS Act. As regards the decisions in Vinod Solanki v. Union of India - JT 2009 (1) SC 1 = (S.C.) = (S.C.) and Union of India v. Bal Mukund - 2009 (2) JCC (Narcotics) 76, Mr. Aggarwala submitted that they were distinguishable on facts. Mr. Aggarwala placed reliance on the decision in Kanhaiyalal v. Union of India, 2008 (1) JCC (Narcotics) 23.
10. At the outset, it requires to be noticed that at the very first instance when the respondent was produced before the learned ACMM, he submitted an application, in which, inter alia, he stated that he had been subjected to third degree methods by the DRI. He stated that the so called confessional statement of his was neither voluntarily nor truthful. He stated that he had been illegally detained by the DRI for about 48 hours and forced to sign blank papers. There is an endorsement on the said application by learned ACMM which forms part of the judicial record. Further, the order passed by the learned ACMM on 13th October, 1988, while refusing bail to the respondent at that stage, noted the submission made by his counsel that ‘his confessional statement has been recorded under threat and after administering third degree method upon him.’
11. Consequently, this Court is unable to accept the plea of Mr. Aggarwala that there is no valid and legal retraction by the respondent in the present case.
12. In Vinod Solanki v. Union of India (supra), the Supreme Court explained that where the confessional statement made by accused was retracted, the Court has to be conscious about the manner in which retraction has been made and other relevant factors. It was observed that a retracted confession could be used as a corroborative piece of evidence but cannot form the sole basis for returning a finding of guilt. In Union of India v. Bal Mukund (supra), in the context of confessional statement under Section 67 of the NDPS Act, the Supreme Court noticed that there can be conviction only if there is an independent corroboration of the retracted statement. In Noor Aga v. State of Punjab (supra), the said position was reiterated. The Court held that where the confessional statement was retracted, the burden shifted on the prosecution to prove that it was made voluntarily. It was pointed out that the confessional statement made by the accused while in custody was weak in nature.
13. In the present case, the witnesses who implicated the respondent were not produced for cross-examination. Mr. Aggarwala submitted that the other two ‘co-persons’ viz, co-accused had made confessional statements. However, it is pointed out by Mr. Naveen Malhotra learned counsel for the respondents, that neither of them in fact named the respondent.
14. Consequently, this Court finds no error having been committed by the learned trial Court in acquitting the respondent. No grounds have been made out for grant of leave to appeal. The petition is dismissed but in the circumstances with no order as to costs.
15. The trial Court record be sent back forthwith.