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PETITIONER: BHANA KHALA BHAI PATEL

       Vs.

RESPONDENT: ASSISTANT COLLECTOR OF CUSTOMS BULSAR, GUJARATAND ANOTHER.

DATE OF JUDGMENT:       18/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN,J.      The appellant  is the  8th accused in Criminal Case 240 of 1974  on the  file of  Judicial  Magistrate,  1st  Class, Umbergaon. He  was held  guilty of  the  offence  punishable under Section  135 (1-A)  and 135  (1-B) of  the Customs Act 1962 and  also under  Section 25  of the  Gold. Control  Act 1968. He  was sentenced to undergo rigorous imprisonment for a period  of six years and pay a fine of Rs.5,000/- for each of  the   offences  under   the  Customs  Act  and  rigorous imprisonment for  a period  of 2  years and  pay a  fine  of Rs.2,000/- for  the offence  under the Gold Control Act. The sentences of imprisonment were directed to run concurrently. Along with  the appellants  some  other  accused  were  also convicted. There  were appeals  by the  State Government  as well as  the Assistant Collector of Customs and an appeal by the appellant  before the  High Court  of Gujarat.  The High Court while  confirming the  conviction, partly  allowed his appeal  and  reduced  the  sentence  of  imprisonment  under Section 135  (1-A) and  135(1-B) of  the Customs Act to five years rigorous imprisonment. Aggrieved by the said judgment, the appellant preferred these appeals on Special Leave. 2.   The main  contention of  the learned  counsel  for  the appellant is  that the  entire case  of the  prosecution  as against him  is wholly  unbelievable as  there is nothing on record to  connect him  with the  alleged occurrence.  It is submitted that  the Courts  below have  acted  on  the  sole uncorroborated testimony  of PW7  who was originally accused No.9 and  convicted on his pleading guilty and had undergone imprisonment for  a short  period. It  is argued that if the evidence of  PW 27  who claimed  to have  worked as a driver under the  appellant is  eschewed there  is no  material  on record to  prove the  guilt of  the appellant. It is further argued that  even if the evidence of PW 27 is considered, it will be  seen that  no credence  can be given to the same as his version is inherently improbable. 3.   In the  first blush  the arguments  of the  appellant’s counsel appear  to be  attractive but  on a  perusal of  the entire record it is seen that there is no merit Briefly, the relevant facts are as follows:-

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    On receipts  of information  that contraband  gold  was being brought  the officers  of the  Customs Department kept vigil at  Village Jampore  in Moti-Daman.  It was found that two persons  (Accused 10  and 11)  were coming  to the coast from the sea and after interrogation it was learnt that they were to  give signals  after coming  to the  coast and after such signals  were given,  the boat  in the  mids of the sea would come to the coast on the instructions of the officers. Such signals were given by the said persons but the boat did not come  to the  coast. The  officers saw red signals being flashed from  the house of the appellant situated nearby and they went  to that  house. There  were three persons who had flashed red  signals. On  the next  day the officers went to the boat which was at the mid sea and made a search. Accused Nos. 1  to 7  were on  that vessel.  It was  learnt from the three accused that 16 packets of gold were dumped in the sea at a  short distance.  They were  taken out and it was found that they  contained  32000  tolas  of  gold.  The  officers recorded statements  under Section  108 of  the Customs Act. Ultimately a  complaint was filed by the Assistant Collector of Customs,  Valsad on  29.3.74 against  11 accused. Accused No.10 was  absconding, Accused  No.3 expired,  Accused  No.9 pleaded guilty.  He was  convicted and  sentenced to undergo two years  rigorous  imprisonment  and  to  pay  a  fine  of Rs.2,000/-. He  was in  jail from  15.2.76 but  there was  a remission of  sentence and after release he gave evidence as PW 27. 4.   According to  PW 27  he was  working as  Driver of  the appellant from  the year  1966-67. He knew the first accused for more  than 15  years. On  31.1.1970  he  met  the  first accused in  his house  and told  him that  from a  Vessel at ’Kalai’ gold  was to  be transferred to his boat and brought to  Jampore School. The work was to be done for or on behalf of the  appellant. According  to the witness one person sent by the appellant accompanied him whose name was not known to him. That  person was  to go  to the Vessel so that the gold could be  transferred from  that Vessel  to the  boat by the first accused. The said unknown person and Accused No.1 with his labourers  went to the coast and left them. There. After the boat  left, he  went to  the Vadi  of the  appellant  in Jampore and  stayed till the boat returned. He learnt on the next morning  that the boat was caught and the gold was also seized by  the customs  officers. He  was being  paid by the appellant whenever  he wanted money. When he learnt that the officers had  seized the gold he went to Badalivadi and from that place  went to  Bombay to  inform the appellant. He did not know how much gold was seized. 5.   We have  already referred  to the  contention  urged by the learned  counsel for  the appellant.  We are  unable  to accept the  arguments that the entire case rests on the sole uncorrobor arted  testimony of PW27 who was a co-accused. If it had been factually correct the contention would have been well founded.  Our attention  has been drawn to the judgment is Haricharan  Kurmi Versus  State of  Bihar, AIR  1964 S.C. 1134 in which it is held that though the confession of a co- accused person cannot be treated as substantive evidence and can be  pressed into service only when the Court is inclined to accept  other evidence  and feels  the necessity  for  an assurance in  support of  its conclusion for an assurance in support of  its conclusion deducible from the said evidence. The  Court   observed  that   the  stage  to  consider  such confessional  statements   arrived  only   after  the  other evidence is considered and found to be satisfactory. 6.   In  the  present  case  several  statements  have  been recorded under the Customs Act and marked as Ex.23 to EX.31.

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They were  all recorded  on 2.2.1970.  In the  statement  of Accused No.1 he stated that PW 27 was driving the car of the appellant and  he met him on the relevant date and requested him to  bring gold  from the vessel which was in the sea. He was also  assured that  he would be paid for the work by the appellant. He  was instructed  to bring  gold  near  Jampore School. His  statement implicates  the appellant  amply. His second statement  was recorded  on 3.2.1970 and the third on 11.7.70. In  the third  statement he  had  stated  that  the machine for  his boat  was  fitted  with  the  help  of  the appellant and  it was  agreed between  him and the appellant that the  amounts payable for the work which he would do for the appellant  could be  adjusted towards  the cost  of  the machine. According  to him the appellant told him that if he had any  work he  would send  a message  through PW  27. The fourth statement  of Accused No.1 was recorded on 25.2.1972. The statements  of Accused  Nos. 2 to 7, 10 and 11 were also recorded on 2.2.1970. Accused No.3 made a specific reference to the  appellant. The statements recorded under the Customs Act have  been duly  proved by  the concerned officials. The courts below  were satisfied  that there  was no  threat  or inducement and  that the  relevant provisions  of  law  were explained to  the  persons  who  gave  the  statements.  The statements were  found to  be voluntary  and not vitiated in any manner.  Hence, all  those statements  are admissible in evidence and  it is  clear therefrom  that the appellant was guilty of the offences for which he was prosecuted. 7.   An attempt was made to contest the admissibility of the said  statement   in  evidence.  It  is  well  settled  that statements recorded under Section 108 of the Customs Act are admissible in  evidence vide  Ramesh Chandra Versus State of West Bengal,  AIR 1970  S.C. 940  and  K.I.  Pavunny  Versus Assistant Collector  (H.Q.).  Central  Excise  Collectorate, Cochin (1997) 3 S.C.C. 721. 8.   The Courts  below were therefore justified in accepting the  contents   of  those  statements  and  considering  the evidence of  PW 27  in addition  thereto. Moreover reference has been made to the evidence of PW 15 who was of a Customs. According to  his evidence  he knew  27 personally  and  had knowledge that he was a driver of the appellant. 9.   Both the  trial court and the High Court have discussed the evidence  on  record  in  detail.  We  do  not  find  it necessary to  repeat the  exercise in  this judgment. We are convinced that  the discussion  and appreciation of evidence by the  courts  below  do  not  suffer  from  any  infirmity whatever. We  do not  find any  reason to  differ  from  the conclusion arrived  at by  them. In  the circumstances,  the appeals fail and are dismissed.