- (1.) This appeal by special leave has come up before this bench, pursuant to a reference order dated 9/11/1994 passed by a two-Judge bench, to consider whether the confessional statement of the appellant made to the Customs Officers under Section 108 of the Customs Act, 1962 (for short "the Act") , though retracted at a later stage, is admissible in evidence and could form the basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence In support of the reference, the learned Judges have cited Kashmira Singh v. State of m. P. ' and Chandrakant Chimanlal Desai v. State of gujarat.
(2.) The facts in this case are that at 8. 00 a. m. on 6/12/1980, 200 gold biscuits of foreign markings were recovered from the compound of the appellant's house in his presence after digging got done by the Customs Officials, Public Witness 2, T. K. Rajasekaran, Superintendent of Customs and Public Witness 5, N. Gopalan Narnbiar, Inspector and two panch witnesses, Public Witness 3 and another. The same were kept concealed in a wooden box buried in the ground visible through the window of his bedroom. The appellant gave, in his own handwriting, a confessional statement, Ex. P-4, at 1. 00 p. m. on the said date before the Customs Officials. In the proceedings for confiscation, 200 gold biscuits, since unclaimed, were confiscated. But the imposition of penalty was set aside which became final. Thereafter, the complaint was filed by Public Witness 1, the Collector of Customs on 15/5/1982 and it was refiled on 1/1/1985. The appellant was apprehended on 19-6-1982 and was released on bail. The prosecution case hinges upon the retracted confessional statement, Ex. P-4, the recovery proceedings, Ex. P-3 and evidence of witnesses, PWs 1 to 5 for proof of recovery of the contraband from the compound of the appellant's house. The Magistrate by his judgment dated 29/3/1986 acquitted the appellant of the charges under Section 135 (I) (i) of the Act and S. 85 (103 and 86 of the Gold (Control) Act, 1968. On appeal, the learned Single Judge of the Kerala High court by the impugned judgment dated 13/7/1988 set aside the acquittal and convicted the appellant of the aforesaid offence and sentenced him to undergo imprisonment for a period of 1 year and 6 months respectively and both the sentences were directed to run concurrently.
(3.) Shri Thakur, learned Senior Counsel for the appellant, has contended that the confessional statement. Ex. P-4 was obtained by coercion and threat of implicating his wife in the offences and, therefore, the appellant had not made a voluntary statement. The recovery of the gold biscuits from his compound was shrouded with several suspicious features. He further argued that of the panch witness, Public Witness 3 was involved in smuggling activities and initially a warrant to search his house was obtained but when the same proved unsuccessful, recovery came to be made from the house of the appellant. They went to the compound and straightaway got the spot located and dug up the place from which the gold biscuits were recovered. That would go to show that Public Witness 3 had implanted them in the compound of the appellant for safe custody thereof. Unless the appellant had conscious possession of the contraband, he could not be convicted of the offence. The Magistrate has given valid and cogent reasons in support of his conclusion that the prosecution failed to prove the case beyond reasonable doubt. The High court, without properly appreciating the reasons given by the Magistrate and without finding whether or not those reasons were sustainable on the basis of the evidence on record, independently considered the evidence and reached the conclusion that the prosecution had proved its case against the appellant beyond reasonable doubt. The approach adopted by the High court is not correct in law. He also contended that the learned Judge should have first marshalled the facts and circumstances to conclude whether the prosecution has independently proved its case dehors Ex. P-4 which could be considered first to be a voluntary confession or was obtained by threat, coercion or inducement. Even in reaching the conclusion that it was a voluntary confession it could not by itself form the basis for conviction. It could be used only to corroborate other independent evidencewhich should inculpate the appellant in the commission of the offence. On proof of those facts, the retracted confession could be used as evidence corroborative to satisfy the conscience of the court that the prosecution has proved its case beyond reasonable doubt from other evidence on record. In support thereof, he placed reliance on Kashmira Singh case and Chandrakant Chimanlal Desai case. In support of his contention that Customs Officers, Public Witness 2 and Public Witness 5 are persons in authority under Section 24 of the Evidence Act, he cited Vallabhdas Liladhar v. asst. Collector of Customs'. He further contended that the moment the Customs Officer had taken the appellant into custody, he had become a person accused of the offence and that the confession made during the custody obtained by coercion and threat of implication of his wife into the crime was not voluntary and consequently Ex. P-4 is not admissible in evidence under Section 24 of the Evidence Act. In support thereof, he placed reliance on State of U. P. v. Deoman Upadhyaya. The adduction of evidence by the prosecution must be tested on the touchstone of fairness of procedure and its trustworthiness. The confessional statement, Ex. P-4 obtained by threat and coercion being inadmissible, it could not be pressed into service and the prosecution could not make it a base for proving the offences charged against the appellant. The possession of contraband should be conscious possession which must independently be proved beyond reasonable doubt. When the Magistrate considered all the evidence and gave him the benefit of doubt, the High court did not test the correctness of all the reasons of the Magistrate, reversal of the acquittal by the High court is bad in law. In support thereof, he relied upon Satbir Singh v. State of Punjab.;