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PETITIONER: K.I. PAVUNNY

       Vs.

RESPONDENT: ASSISTANT COLLECTOR (HEAD QUARTER),CENTRAL EXCISE COLLECTORA

DATE OF JUDGMENT:       03/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      K. Ramaswamy, J.      This appeal  by special  leave has  come up before this Bench, pursuant  to a reference order dated November 9, 1994 passed  by  a  two-Judge  Bench,  to  consider  whether  the confessional statement of the appellant given 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 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/s. The State of Madhya Pradesh [AIR 1952 SC 159] and Chandrakant Chimanlal Desai V/S. State of Gujarat [(1992) 1 SCC 4731.      The facts  in this  case  are  that  at  8.00  a.m.  on December 6,  1980, 200  gold biscuits of foreign making were recovered from  the compound of the appellant’s house in his presence after digging got done by the Customs official, PW- 2, T.K. Rajasekaran, Superintendent of Customs, and PW-5, N. Gopalan Nambiar, Inspector and two panch witnesses, PW-3 and another. The  same were  kept  concealed  in  a  wooden  box burried in the ground visible through the window of his bed- room.  The   appellant  gave,   in  his   own   handwriting, 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 PW-1, the  Collector of  Customs on  May 15, 1982 and it was refiled on January 1, 1985. The appellant was apprehended on June 19, 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 March  29, 1986 acquitted the appellant  of the  charges under  Section 135 (1) (i) of the Act and Sections 85 (1) (a) and 86 of the Gold (Control) Act, 1968. On appeal, the learned Single Judge of the Kerala

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High Court  by the impugned judgment dated July 13, 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.      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 voluntary statement.  The recovery of the gold biscuits from his compound  was shrouded with several suspicious features. He further  argued that the panch witness, PW-3 was involved in smuggling  activities and  initially a  warrant to search his  house   was  obtained   but  when   the   same   proved unsuccessful, recovery come to be made from the house of the appellant. They  went to  the compound  and straightaway got the spot  located and  drugged up  the place  from which the gold biscuits were recovered. That would go to show that PW- 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 prosecution has independently proved its case de hors 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 evidence which 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’s case  and Chandrakant Chimanlal Desai’s case. In  support of  his contention  that Customs officers, PW-2 and  PW-5 are  persons in authority under Section 24 of the Evidence  Act, he  cited Vallabhdas Liladhar & Ors. V/s. Assistant Collector  of  Customs  [(1965)  3  SCR  854].  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/s.  Deoman  Upadhyaya [(1961)  1  SCR  14].  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

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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 & Anr. etc. etc. V/s. State of Punjab [(1977) 3 SCR 195].      When we  asked the  learned counsel  appearing for  the Union of  India whether  Customs  officer  is  a  person  in authority, the  learned counsel  started arguing  that under Section 108  of the Act the officers are empowered to record the statement  of the  accused and  then he pointed out that under the  Act, though  they were  authorised  to  have  the statement of the accused recorded under Section 108, in view of the ratio of Vallabhdas Liladhar case they are persons in authority. He  started conceding  to  the  question  whether confession is inadmissible in evidence and prosecution could rely thereon,  he started  conceding to the question. We are constrained to  observe at  this stage  that though the two- Judge Bench  referred the  question of  law to a three-Judge Bench, the  learned counsel  did not  make  any  attempt  to investigate into  the questions  of law and was on the brink of  making  concessions  and  proceeded  to  argue  on  that premise. Since  wrong concession,  in particular on question of law,  does not  bind this Court and there are plethora of precedents covering the field, we pointed out to the counsel that he  rendered no assistance to the Court constraining it to independently  investigate into  the  matter  by  itself. Accordingly, we  closed the  arguments. Without  meaning any disrespect to  the learned counsel, we are at pains to point out that  the  persons  involved  in  contravention  of  the provisions of  the  Act  are  white-collared  offenders  and organised gangsters get the best of talent in the profession to assist  them. The  Union of  India should  take  care  to entrust these  sensitive cases  of far  reaching effect,  in particular  on   question  of   law,  to  counsel  who  have experience and ability in that branch of law to defend their cases. Lest it is public justice that suffers and economy of the country  is put  to jeopardy. Unfortunately, the counsel did not make any effort to analyse the provisions of the Act nor did  he make investigation into question to law from the decisions rendered  by this  court. At  this juncture, it is further relevant  to point  out that when the Union of India has its panel of counsel, they should see to it that work is assigned to  the counsel who can competently argued the case in that  behalf lest,  for lack of assistance, investigation and marshaling the questions of fact and law, public justice tends to  suffer. We  would greatly  appreciate the  counsel appearing for the appellant who placed for consideration all aspects of  the case on law and facts. it is, therefore, for the Secretaries  of the  Departments of  Law 7  Justice  and Finance to  look into  the matter  and set  their  house  in order; equally,  the Attorney  General of  India should also see that  the affairs  in the  Central Agency in the Supreme Court are  organised accordingly.  We have  pointed out  all this only  to express  our deep anxiety as the burden on the Court is  multiplied to  undertake unto  itself the  task of investigating into all aspects to consider the case so as to reach satisfactory conclusion.      The  primary   question,  as   referred   to   us   for consideration,  is:   whether  the   retracted  confessional statement, Ex.  P-4, by  the appellant  is  inadmissible  in evidence under  Section 24  of the  Evidence Act and what is the scope  for its  consideration? Since  we did not receive

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any assistance on the question of law, we have independently investigated the  case law  ourselves and  to the  extent we could lay  our hands,  we are dealing with the relevant case law in  that behalf.  Section 24  of the  Evidence Act deals with admissibility of the confession. it reads as under:      "24.    Confession     caused    by      inducement, threat or promise, when      irrelevant in  criminal proceeding.      - A  confession made  by an accused      person is  irrelevant in a criminal      proceeding, if  the making  of  the      confession appears  to the Court to      have been caused by any inducement,      threat or promise, having reference      to the  charge against  the accused      person, proceeding from a person in      authority and  sufficient,  in  the      opinion of  the Court,  to give the      accused person grounds, which would      appear  to   him   reasonable   for      supposing  that  by  making  it  he      would gain  any advantage  or avoid      any evil  of a  temporal nature  in      reference   to    the   proceedings      against him."      A bare  reading of  the above  provision would indicate that for  application of Section 24 of the Evidence Art, the following ingredients  are required  to be  established: (a) the  statement   in  question  is  a  confession:  (b)  such confession has been made by an accused; (c) it has been made to a  person in  authority; (d) it was obtained by reason of any inducement,  threat or  promise proceeding from a person in authority;  (e) such  inducement, threat  or promise must have reference to the charge against the accused person; and (f) the  inducement, threat  or  promise  must  be,  in  the opinion of the Court is sufficient to give an accused person grounds which  would appear  to  him  to  be  reasonable  by supposing that  by making  it he would gain any advantage or avoid any  evil of  a temporal  nature in  reference to  the proceedings against him.      The question,  therefore, is; whether the appellant was a person  accused of an offence on December 15, 1980 at 1.00 p.m. when  the  confessional  statement  was  given  by  the appellant, admittedly,  in his  own hand-writing,  (Ex. P-4) being the  English translation  thereof) on the even date or when he  was summoned by PW-2 and PW-5 to the Customs office on the  same day?  Section 108  (1) of  the Act empowers any Gazet ted  officer of  Customs to  summon any  person  whose attendance he considers necessary either to give evidence or to produce  a document  or any  other thing  in any  enquiry which  such   officer  is  making  in  connection  with  the smuggling of  any goods.  The  person  so  summoned  has  an opportunity of  locus penitential  to give  true and correct statement and also an opportunity to reflect upon and tender the evidence,  be it  recorder or  given in  his  own  hand- writing. Under  sub-section (3),  all  persons  so  summoned shall  be  bound  to  attend  either  in  person  or  by  an authorised agent,  as such  officer may direct, and to state the  truth  upon  any  subject  respecting  which  they  are examined or  make statements  and produce such documents and other things  as may  be required.  However, by operation of the proviso  to sub-section (3), exemption under Section 132 of the  code of civil Procedure, 1908 shall be applicable to any requisition  for attendance under the said section. Sub- section (4) envisages that every such inquiry, as aforesaid,

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will be  deemed to  be  a  judicial  proceeding  within  the meaning of  Section 193  and Section 228 of the Indian Penal Code (IPC).      In Romesh  Chandra Mehta  V/s.  State  of  West  Bengal [(1969) 2  SCR 461)  a Constitution Bench of this Court held at page 466 that the Customs officers are entrusted with the powers specifically  relating to  the collection  of  custom duties and prevention of smuggling and for that purpose they are  invested  with  the  power  to  search  any  person  on reasonable suspicion,  to summon,  x-ray  the  body  of  the person for  detecting secreted  goods, to  arrest  a  person against whom  a reasonable suspicion exists that he has been guilty of  an offence  under the  Act, to  obtain  a  search warrant from  a Magistrate,  to search  any place within the local limits  of the  jurisdiction of  such  Magistrate,  to collect information  by summoning  persons to  give evidence and produce  documents and  to adjudge  confiscation. He may exercise these  powers for  preventing  smuggling  of  goods dutiable or  prohibited and  for adjudging  confiscation  of those goods.  For collecting evidence the Customs Officer is entitled to  serve summons  to produce  a document  or other thing or  to give  evidence and  the person  so summoned  is bound to  attend either in person or by an authorised agent, as such officer may direct, is bound to state the truth upon any subject  respecting which  he is  examined  or  makes  a statement and  to produce such documents and other things as may be  required. The  power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect  evidence are  vested in  the Customs Officer for enforcing compliance  with the provisions of the Sea Customs Act. he is empowered to investigate into the infringement of the provisions  of the  Act primarily  for  the  purpose  of adjudicating forfeiture  and penalty.  He has  no  power  to investigate into an offence triable by a Magistrate, nor has he the  power to  submit a  report under  Section 173 of the code of  criminal Procedure  (for short, the ’Code’]. He can only  make   a  complaint  in  writing  before  a  competent Magistrate. The  above law  was  laid  down  under  the  Sea Customs Act,  the predecessor of the Act. The ration therein equally applies  to the  powers  exercised  by  the  Customs Officer under  the Act.  The Act  enlarges their powers. The Customs officer  is not a police officer nor is he empowered to file charge-sheet under Section 173 of the code though he conducts enquiry  akin to an investigation under some of the provisions of  the Code. His acts are in the nature of civil proceedings for  collecting evidence  to take further action to adjudicate the infringement of the Act and for imposition of penalty prescribed thereunder which would be self-evident from sub-section (4) of Section 108.      The question that is; whether the appellant is a person accused of  an offence  within the  meaning of Section 24 of the Evidence  Act? The question is no longer res integra. It is seen that the connotation of the words "person accused of the offence"  under  Section  24  of  the  Evidence  Act  is generally referable  to initiate investigation of cognisable offence in  Chapter XII of the Code of 1894 and the code. It is not necessary, for the purpose of this case, to undertake elaborate consideration  as to  when the  person  becomes  a person accused  of an  offence under the code. Suffice it to state that in a reasoned judgment, a two Judge bench of this court elaborately considered this question in Directorate of enforcement V/s.  Deepak Mahajan  & Anr.  [(1994) 3 SCC 440] thus obviating  the need  to dwell in depth on the same now. Therein, the  question was  whether,  when  the  person  had surrendered before  a  magistrate  and  was  arrested  under

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Section  38   of  Foreign   Exchange  Regulation   Act,  the Magistrate had jurisdiction to authorise his detention under Section 167  (2) of  the Code.  In that  behalf, it was held that the  person who  surrendered before  the magistrate was accused  of   an  offence  and  that,  therefore,  gave  the Magistrate the  power to  proceed further  under the code to remand the  person to  the judicial  custody. As regards the person arrested  for committing an offence under the Act, in Romesh  Chandra   Mehtra’s  case   (supra),  at   page  740, Constitution Bench held that Customs Officer does not at the stage of  enquiry accused the person suspected of infringing the provisions  of the  Sea Customs Act, with the commission of any offence. His primary duty is to prevent smuggling and to recover  duties of  customs when  collecting evidence  in respect  of   smuggling  against   a  person   suspected  of infringing the  provisions of the Sea Customs Act. In Illias V/s. Collector  of Customs, Madras (1969) 2 SCR 6131 another Constitution Bench  had held  that Customs  authorities have been invested  under the  Act with  many powers  of a police officer in  matters relating  to arrest,  investigation  and search, which  the customs  officers did  not have under the Sea Customs  Act. Even though the Customs officers have been invested with  many of the powers which an officer in charge of  a   police  station   exercises  while  investigating  a cognisable offence,  they do  not,  thereby,  become  police officers within  the meaning  of Section  25 of the Evidence Act and  so the  confessional statements made by the accused persons to Customs officials would be admissible in evidence against them.  It was  further held  at  page  618  that  as regards the  procedure for search the important change which has been  made in  the Act  is that under Section 105 if the Assistant collector  of Customs  has reason  to believe that any goods  liable to confiscation or any documents or things are secreted  in any  place, he may authorise any officer of Customs to  search or  may himself  search for  such  goods, documents or things without warrant from the magistrate.      It would  thus be  clear that  the appellant  was not a person accused of the offence under the Act when he gave his statement under  Section 108  of the Act on December 6, 1980 at 1.00 p.m. in the office of the Superintendent of Customs, PW-2. The  question then is: as to when the appellant became an accused  of the  offence? This court in Veera Ibrahim V/s The State of Maharashtra [(1976) 2 SCC 302] had held in para 9  that  an  accusation  which  would  stamp  him  with  the character of  such a  person  was  labelled  only  when  the complaint was  filed against  him by the Assistant collector of Customs  complaining of  the commission  of the  offences under Section  135 (a)  and Section  135 (b)  of the Act. In that case the appellant was initially 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 F.I.R. nor did  the police open the packages or prepare inventories of  the   goods  packed   therein.  They   dropped   further proceedings but informed the Customs authorities, who opened the packages  and  on  inspection  finding  them  contraband goods,  seized   them  under  a  panchnama.  They  took  the appellant and  others into custody after due compliance with the requirements of law. The Inspector of customs questioned the appellant  and recorded  his statement under Section 108 of the  Act. Subsequently,  he was  charged for  the offence under Section  135 of  the Act. It was contended that he was an accused of the offence when the Customs officers recorded his  statement  and  he  was  under  testimonial  compulsion

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prohibited under  Article 20  (3) of  the constitution. This court held  that he  was not an accused person of an offence at that  time and  confession was  not inadmissible.  But on facts it  was held  in that case that the confession was not inculpatory but  one exculpating  him from  the offence.  It was, therefore, held that the statement could not be pressed into service  by the  State. However, on other evidence, the convicting under  Section 135  was upheld.  Ratio of  Romesh Chandra Mehta’s case was applied.      In Magbool Hussain V/s. The State of Bombay [(1953) SCR 730], another  constitution Bench  held  that  hierarchy  of officers under  the Sea  Customs Act  is not  the same as of police officers.  That Act was enacted to prevent smuggling. The  Customs   Officers  are  empowered  to  arrest  persons reasonably suspected  of having  committed an  offence under the Sea  Customs Act but the person arrested has to be taken forthwith  before   the  nearest   Magistrate   or   Customs collector.  The  magistrate  is  empowered  to  commit  such persons to  jail or  order him  to be kept in custody of the police for  such time  as may  be necessary  to  enable  the magistrate to  communicate with  the proper  officer of  the Customs. In  State of  Punjab V/s.  Barkat Ram [(1962) 3 SCR 338]  a   three-judge  Bench  per  majority  held  that  the confession made to the Customs Officer and conviction on the basis of  such confession  under the  Land customs Act, 1924 was held  valid. The  majority view  was approved  in Romesh Chandra Mehta’s  case and in Illias case. The following four propositions were  laid in  the  judgment  and  approved  in Illias case (supra):      "(1) The  police is  the instrument      for the prevention and detection of      crime which  can be  said to be the      main object  of having  the police.      The powers  of customs officers are      really not for such purpose and are      meant for checking the smuggling of      goods  and   due   realization   of      customs duties  and for determining      the  action  to  be  taken  in  the      interest  of  the  revenue  of  the      country by  way of  confiscation of      goods on  which on  duty  had  been      paid and  by imposing penalties and      fines.      (2) The customs staff has merely to      make  a   report  in   relation  to      offences which are to be dealt with      by  a   Magistrate.   The   customs      officer,    therefore,    is    not      primarily   concerned    with   the      detection and  punishment of  crime      but he  is merely interested in the      detection   and    prevention    of      smuggling of goods and safeguarding      the recovery of customs duties.      (3)  The   powers  of  search  etc.      conferred on  the customs  officers      are of a limited character and have      a limited  object  of  safeguarding      the revenues  of the  State and the      statute  itself  refers  to  police      officers  in  contradistinction  to      customs officers.      (4)  If  a  customs  officer  takes      evidence  under  Section  171A  and

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    there is  an admission of guilt, it      will be  too much  to say that that      statement  is  a  confession  to  a      police officer  as a police officer      never  acts   judicially   and   no      proceeding before  him is deemed to      be a  judicial proceeding  for  the      purpose of  ss. 193  and 228 of the      Indian Penal  Code or for any other      purpose."      In that  case  when  the  confessional  statements  wee sought to  be relied  as evidence, objection was raised that they were inadmissible under Section 25 of the Evidence Act. This Court  overruled the  objection and held that they were admissible in evidence. It was further held that the Customs Officers were not police officers under the Act. Equally, in Romesh  Chandra   mehta  (supra)   the  objections   as   to admissibility under  Section 25  of the  Evidence Act on the basis of  violation of  Article 20  (3) of  the constitution were rejected.      In Thomas Dana V/s. The state of Punjab [(1959) Supp. 1 SCR 274],  another constitution bench was concerned with the question whether  the conviction  under the Sea Customs Act, after  the   confiscation  proceedings   became  final,  was violative of  Article 20  (2) of  the  constitution  (double jeopardy). The  Constitution bench  held  that  it  was  not violative of  Article 20  (2) since the two proceedings were independent  and   distinct  of   each  other.  One  is  for confiscation for  infringement of  the provisions of the Act and the  second is in respect of charge of criminal offence. Accordingly,  we   have  no  hesitation  to  hold  that  the appellant was  not accused of an offence when he gave in his own hand-writing his confessional statement, Ex.P-4.      The question  then is:  whether  the  confession  under Section 24 of the Evidence Act was obtained by threat, force or inducement  etc. and thereby is inadmissible in evidence? In Vallabhdas  Liladhar case  (supra) the Constitution Bench had  held  that  the  statements  made  before  the  Customs authorities were  used in  support of  the prosecution case. The admission  thereunder constituted  the evidence in proof of the  charge. It  was held  at page  858 that  the Customs authorities must  be taken  to be persons in authority under Section 24. The statements would be inadmissible in criminal trial if  it is  proved that they were caused by inducement, threat or promise. However, on the facts in that case it was held that  the statements  were not  obtained by any threat. inducement or  promise. The  conviction on  the basis of the retracted confession  was  upheld.  The  question  then  is: whether  by  reason  of  the  authority  under  the  Act  in particular Section  108, the  statement of  the appellant is inadmissible under  Section 24 of the Evidence Act? In Percy Rustomji Basta  V/s. The  State of  Maharashtra [AIR 1971 SC 1087], a Bench of two-Judges considered the question whether by reason of the recording of the evidence during the course of  the  inquiry  under  the  Act  the  statement  would  be construed to be compulsive statements emanating from persons in authority  so as  to become inadmissible under Section 24 of the  Evidence Act. In para 20 of the judgment it was held that it  was not  disputed that  P.W.  5  who  recorded  the confession, was  a person  in authority  within the Act. But the question  was whether, when P.W. 5 drew the attention of the appellant  to the  fact that  the Inquiry was a judicial proceeding to which Section 193, I.P.C. applied and that the appellant  was  bound  to  speak  the  truth,  it  could  be considered to  be a  threat, inducement or promise emanating

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from a  person in authority under the section. In para 24 it was considered  and  held  that  "a  person  summoned  under Section 108  of the  Act is  told by the statute itself that under threat  of criminal  prosecution he  is bound to speak what he  knows and state it truthfully. But it must be noted that a  compulsion to  speak the  truth, even  though it may amount to  a threat,  emanated  not  from  the  officer  who recorded the  statement, but  from  the  provisions  of  the statute itself.  What is  necessary to  constitute a  threat under Section 24 of the Evidence Act is that it must emanate from the  person in  authority. In  the case before us there was no  such threat  emanating from  P.W.5, who recorded the statement or  P.W. 19,  who was  guiding the proceedings. On the contrary, the officers recording the statement were only doing their  duty in bringing to the notice of the appellant the provisions  of the statute. Even if P.W. 5 had not drawn the attention  of the appellant to the fact that the inquiry conducted by  him is  deemed to be a judicial proceeding, to which Section  193, I.P.C.  applies, the appellant was bound to speak  the truth  when summoned  under Section 108 of the Act with  the added  risk of  being prosecuted,  if he  gave false evidence."  it was  further held that "it is not every threat, inducement or promise even emanating from the person in authority  that is hit by Section 24 of the Evidence Act. In  order  to  attract  the  bar,  it  has  to  be  such  an inducement, threat or promise, which should lead the accused to suppose that "by making it he would gain any advantage or avoid any  evil of  temporal  nature  in  reference  to  the proceedings against  him". In the case before us, what is it that the  appellant has been told? he has been told that the law requires  him to tell the truth and if does not tell the truth, he  may be  prosecuted under  Section 193, I.P.C. for giving false  evidence". The  plea of  the appellant therein was that  he was  compelled to  make the statement under the threat that  otherwise his  mother and another brother would be prosecuted.  He had further stated that he was induced to make statement  on the  belief that  it will  be  used  only against the  second accused and not against him. These pleas of the  appellant therein  had been  disbelieved by both the trial Court  and the High Court. Therefore, it was held that even assuming  that there  was an  inducement or threat, the appellant therein  had no basis for supposing that by making the statement  he would gain any advantage or avoid any evil with reference  to the  proceedings in  respect of  which an inquiry  was   being  conducted  by  the  Customs  Officers. Therefore, even  on this  ground  also  Section  24  of  the Evidence Act  had no  application. The  above ratio squarely applies to  the facts  in this case. The appellant was under legal duty  to state  the facts  truthfully lest he would be liable to  prosecution. The threat emanates from and is that of the statute and the officers merely enforced the law. the allegations as  to threat  of implication of his wife was an afterthought and  he  did  not  mention  the  same  when  he appeared before the magistrate and obtained bail.      In Poolpandi  etc. etc.  V/s.  Superintendent,  Central Excise and  Ors. etc.  etc. (1992)  3 SCR 247] a three-Judge Bench was  to consider  whether the  appellant  therein  was entitled to  the presence  of  a  counsel  at  the  time  of recording of  his statement under Section 108 of the Act. In that context,  this Court  considered the  ratio  of  Romesh Chandra Mehta’s  case and  Illias case (supra) and held that "just, fair  and reasonable test" could not be extended to a person whose  statement was  required to  be recorded  under Section 108  of the  Act and  the failure  to give counsel’s assistance is  not violative of either Article 21 or Article

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20 (2)  or Article  20 (3)  of the  constitution.   In  that context, it was further held at page 247 that the purpose of inquiry under  the Act  and other  similar statutes "will be completely  frustrated   if  the  whim  of  the  persons  in possession of  useful information  for  the  department  are allowed to  prevail. For  achieving the  object of  such  an enquiry if  the appropriate  authorities be of the view that such persons  should be  dissociated from the atmosphere and the company  of persons  who provide encouragement to them n adopting a  non-cooperative attitude  to the  machineries of law, there  cannot be  any legitimate objection in depriving them of  such company".  The contention  of Shri Thakur that fairness of  judicial process  requires that such statements given by  the accused  should be  strictly, meticulously and minutely scrutinised as they emanate at the threat of person in authority  and are inadmissible in evidence under Section 24, does  not merit  acceptance  for  the  reason  that  the primary object  of enquiry  under the  Act  is  to  initiate proceedings  for   confiscation  of   the   contraband   and collection of  excise duty  and the  persons acquainted with the facts are duty bound to speak truth or to give statement truthfully upon  the subject  respecting with  the person is examined or  made statement  at the  pain of prosecution for perjury or  produce such  document or  other things.  In the light of  the legislative  policy the question of unfairness or untrustworthy  of process  does not arise and such a plea cannot be given countenance or acceptance. Ramanlal Bhogilaal Shah & Anr. V/s. D.K. Guha & Ors. [(1973) 1 SCC  696] was cited in support of the contention that when the person  summoned under Section 108 of the Act was in the company of  the Customs  Officer he was an accused and that, therefore,  the   appellant  therein  was  entitled  to  the protection. That  case is  distinguishable from  the present case.  Therein,   the  appellant   was  arrested  under  the detention  law.   The  Enforcement   authorities   had   got information of  the contraband.  The search  was followed by seizure of  the documents. A case was registered on November 8, 1971  under Section  154 of  the Code and on November 25, 1971 an  order permitting further investigation was obtained from the  Chief presidency  magistrate.  The  FIR  disclosed offence under  Section 420,  IPC and Section 423 of the FERA etc. When  summons were  issued on  April 17,  1972, it  was contended that  he was  an accused  and that he could not be compelled to give evidence against himself violating Article 20 (3) of the constitution. On those facts, it was held that testimonial compulsion was prohibited under Article 20 (3).      It would  thus be  clear that  the object  of  the  Act empowering Customs  Officers to  record the  evidence  under Section 108  is to  collect information of the contravention of  the   provisions  of  the  Act  or  concealment  of  the contraband or  avoidance of  the duty  of excise  so  as  to enable  them  to  collect  the  evidence  of  the  proof  of contravention of  the provisions  of the  Act so  as to take proceedings  for  further  action  of  confiscation  of  the contraband or  imposition of  the penalty under the Act etc. By virtue  of authority  of law,  the officer exercising the powers under  the Act  is an authority within the meaning of Section 24 of Evidence Act.      [1] Though the authority/officer on suspecting a person of having  committed the  crime under the Act can record his statement, such  a person  per force is not a person accused under the  Act. [2]  he becomes accused of the offence under the Act  only when  a complain  is  laid  by  the  competent customs officer  in the  court of  competent jurisdiction or magistrate to take cognizance of the offence and summons are

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issued. thereafter,  he becomes  a  person  accused  of  the offence. [3]  A statement  recorded or  given by  the person suspected of  having committed an offence during the inquiry under  Section   108  of  the  Act  or  during  confiscation proceedings is  not a  person accused  of the offence within the meaning  of Section  24 of  the Evidence Act. [4] Though the Customs  Officer is  an authority  within the meaning of Section 24  of the  Evidence Act,  by  reason  of  statutory compulsion of  recording the statement or the accused giving voluntary statement  pursuant to  his appearing either after issuance of summons or after the appellant’s surrender, such statement cannot  be characterised  to have been obtained by threat,  inducement   or  promise.  [5]  The  collection  of evidence under  Section 108  and other  relevant  provisions relating to  search and  seizure are only for the purpose of taking further  steps for  confiscation  of  contraband  and imposition  of   penalty.6]  The   self-same   evidence   is admissible in  evidence on the complaint laid by the Customs Officer for  prosecution under Section 135 or other relevant statutes.      It is  true, as  pointed out  by Shri Thakur, that PW-2 admitted  in   cross-examination  that   they  treated   the appellant  as  an  accused  and  decided  to  prosecute  the appellant. but  the above  evidence requires to be tested in the light of the above legal position. The assumption of PW- 2 that  the appellant was an accused as on December 6, 1980, is erroneous,  since as on that date on formal complaint had been laid  against the  appellant. Therefore,  it cannot  be considered that  on December  6, 1980,  the appellant was an accused of the offence under Section 24 of the Evidence Act.      Next  question   for  consideration  is:  whether  such statement can  form the sole basis for convition? 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  weight age  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 compound. The place of concealment of the contraband is also significant at  this juncture.  It is  just near and visible

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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 bedroom 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.      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 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/s. 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 implicating 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

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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 light of  given set  of facts.  The high degree of proof and probative value is insisted in capital offences.      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 do 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/s. State of Punjab [AIR 1957 SC 216] where in  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 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.      In Hem  Raj V/s.  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.      In Haricharan  Kurmi &  Jogia Hajam V/s. State of Bihar [AIR 1964  SC 1184]  a Constitution Bench was to consider as to when  the confession  of  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

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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 accused and  corroboration to  the retracted  confession, in Girdhari Lal  Gupta &  Another  vs.  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. I  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.      In Nishi  Kant Jha vs. 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.      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  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 conviction. However, the  prudence and practice require that Court would seek assurance  getting corroboration  from  other  evidence adduced by the prosecution.      In Naresh  J. Sukhawani  V/s. Union  of  India  [(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 vs. Union of India [1997 (89)  ELT 464],  decided by a two Judge bench to which

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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 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  120-B  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  the  offences  committed  under  the  Act  has consistently been adopting the consideration in the light of the object which the Act seeks to achieve.      In Harroom  Hai Abdulla  V/s. State of Maharashtra [AIR 1968 SC 832], for the offence of conspiracy punishable under Section 120-6  of IPC  and Section  171-A of the Sea Customs Act, the question arose whether the confession of co-accused who died pending trial just before delivery of the judgment, could be  used against  a co-accused  who died pending trial just before  delivery of the judgment, could be used against a co-accused?  This Court  considered  the  evidence  of  an accomplice together  with  the  statements  of  two  accused recorded under  the Act,  viz., one Bengali and another Noor Mohammad. How and what evidence could be relied upon against the other  accused was  the question. One of the accused who gave the  evidence was  an accomplice.  In that case, it was held in  para 9  of the  judgment that the "argument here is that the  cautionary rule  applies,  whether  there  be  one accomplice or more and that the confessing co-accused cannot be placed  higher than  an accomplice".  On consideration of the evidence,  this Court  had held  in  para  13  that  the "Customs authorities  served notices  upon various  suspects and recorded  their statements  in answer  to these notices. The statements  of Kashinath  (Ex. A) and Bengali (Ex. Z-27) were recorded on the 15th, the former by Karnik (P.W.24) and the latter  by Rane (P.W.26). These statements were recorded simultaneously or  almost simultaneously.  The statement  of Noor Mohammad (Ex. Z-17) was recorded by Randive (P.W.22) on August  19.  As  there  was  no  gap  of  time  between  the statements of  Kashinath and  Bengali and  the incident  was

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only a  few hours  old, it  is impossible  that the officers could have tutored them to make statements which agree in so many details".  On consideration of the evidence it was held that "although Noor Mohammad’s statement was not used by the High  Court   and  we   have  reluctantly  left  it  out  of consideration also, "nothing was shown to us to "destroy the conclusion about  the truth  of accomplice  evidence. If  it was, we  would have  considered seriously  whether we should not take  it into  consideration. Further Haroon himself was also served  with a  notice like others. He was unwilling to make a  statement till he had seen what the others had said. This may  well be  regarded as peculiar conduct in a man who now claims  that he  was not  concerned with the smuggling". The  normal   rule  that   accomplice’s  evidence   requires corroboration  on   material  particulars  from  independent evidence was  not applied.  Thus this Court had accepted the accomplice evidence  and the  statements of others were used to confirm the conviction. Normally mens rea is an essential ingredient of  the crime  but this  Court  in  the  case  of offences  punishable   under  Section   14   of   the   Food Adulteration Act  or Section  7 of the Essential Commodities Act, had  held that  mens rea is not an essential ingredient in proof of statutory offences.      In State  of Gujarat  & Anr.  V/s. Acharya  D. Pandev & Ors. etc.  [(1970) 3  SCC 183]  while holding  that even  in statutory offences  in  certain  circumstances,  unless  the statute excludes expressly or by necessary implication, mens rea is  an  essential  ingredient.  It  was  held  that  the offences under the Bombay Public Trust Act, 1950 were not of serious nature.  It was held that mens rea was not essential ingredient  for  proving  the  commission  of  offences.  In Director of  Enforcement V/s. M.C.T.M. Corporation Pvt. Ltd. &  Ors.  [(1996)  2  SCC  471]  a  two-Judge  Bench  was  to considered whether  mens rea  is an  essential ingredient in the proceedings  taken under  Section  23  (1)  (a)  of  the Foreign Exchange  Regulation Act.  It was held that mens rea is not  an essential  ingredient to  establish contravention under Sections  10 (10 and 23 (1) (a) of that Act. It is not necessary in this case to broach further whether mens rea is an essential  ingredient for  proving the  commission of the offence under  Sections 135  of the Act or Section 85 and 86 of the  Gold  (Control)  Act  since  none  has  raised  such contention. What  is required  to be  considered is  whether voluntary  statement,   Ex.  P-4   given  by  the  appellant constitutes sole  basis  to  prove  the  commission  of  the offence under Section 135 (1) (i) of the Act.      Deoman Upadhvaya’s  case (supra) relates to a statement recorded  under   Section  27   of  the  Evidence  Act.  The respondent therein  was held  to  be  a  person  accused  of offence of  commission of crime. The respondent subsequently turned out  to be  the accused.  Therefore, the Constitution Bench held  that person who gave the statement to the police officer  investigating   into  the  offence  and  also  gave information leading  to the  discovery of the contraband, on those facts.  must be  deemed to have surrendered himself to the police  and that  he being  in  the  custody,  gave  the statement leading  to discovery  of incriminating contraband within the meaning of Section 27 of the Act. Accordingly, it was held  that the  evidence  was  inadmissible.  The  ratio therein has no application to the facts in this case.      In Sevantilal  Karsondas Modi V/s. State of Maharashtra & Anr  [(1979) 2  SCR 1160],  a two-Judge bench concluded on the facts  in that  case that  the statement recorded of the appellant-accused therein  was hit  by  Section  24  of  the Evidence Act  for the  reason that  one of the accused tried

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along  with  the  appellant  was  found  to  have  sustained grievous injuries  while he  was in  custody of  the police. Moreover, the  house from which the contraband was recovered was in  joint possession of others along with the appellant. This Court, therefore, drew the inference that the statement was not  voluntary. This case also has no application to the facts in  the present  case. Satbir Singh’s case also is not of any  help to  the appellant.  Therein, the confession was recorded  by  a  superior  police  officer  questioning  the accused separately  on several  dates and  ultimately it was recovered at the end. Under those circumstances, it was held that the  confession was not voluntary. That case relates to the prosecution  for offences under Section 364 and 302 read with Section  120-B,  IPC.  The  ratio  therein  is  equally inapplicable to the facts in the present case.      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  P.W.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 him. PW-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 handwriting 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.      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  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 should 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

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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 counted  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 on error of law.      Section 135  provides that  "without prejudice  to  any action that may be taken under the Act", (emphasis 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 subsection (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.      Having reached  the  finding  that  the  appellant  has committed the  offences under Section 135 (1) (i) of the Act and Section  85 (1)  (a) and  86 of  the Gold (Control) Act, 1968 we  think that  instead of being committed to jail, the appellant should  be sentenced  to pay  fine of Rs. 10,000/- and Rs.  5,000/- respectively  for  the  two  aforementioned offences, within  4 months  from today. In default, he shall undergo imprisonment  for a  period of 2 months and 1 months respectively which are directed to run consecutively.      The appeal  is accordingly  allowed to the above extent of modification  and the sentences imposed by the High Court stand modified accordingly.