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PETITIONER: NARESH J. SUKHAWANI

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT06/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KIRPAL B.N. (J)

CITATION:  1996 AIR  522            1995 SCC  Supl.  (4) 663  JT 1995 (8)   160        1995 SCALE  (6)386

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The special  leave petition arises from the order dated 7th August, 1995 passed by the Bombay High Court in W.P. NO. 1334 of  1995. The  Customs officials at Sahar International Airport, Bombay  apprehended one  Sukhawani Solanki  when he was attempting  to export  foreign  exchange  out  of  India valuing  Rs.  13,27,212/-.  Mr.  Solanki  in  his  statement recorded under Section 108 of the Customs Act by the Customs official, had  stated that  one Mr. Subhash Dudani had given him the  currency to hand over to Mr. Kenny at Hongkong. The Customs officials  apprehended Mr. Subhash Dudani who in his statement recorded  under Section  108 stated  that  foreign exchange given  to Solanki  was received from one Mr. Rajesh Sukhawani. Thereafter,  the  Customs  officials  traced  the petitioner and  had searched  his premises  on December  21, 1991,  in   his  absence,   but  nothing  incriminating  was recovered.      The  Customs   officials  initiated   proceedings   for confiscation of  foreign exchange  and used the statement of Mr. Dudani against the petitioner, After enquiry and gaiving an opportunity  to the  petitioner, the Additional Collector confiscated the foreign currency and impoed a penalty of Rs. 1 lakh.  When the  petitioner challenged the confiscation in appeal, the  Collector set aside the said order. On suo motu revision, the Government reversed the order of the Collector and restored the order of the Additional Collector which was affirmed by  the High  Court by the impugned order. Thus the special leave petition.      The Joint  Secretary to  the Government, the revisional authority, has  held that  the evidence  and  the  statement given by  Mr. Dudani  incriminates the  petitioner. This was established with  reference to  the  photographs  and  other intrinsic material.  On that  basis, he  concluded that  Mr. Dudani incriminated himself and the appellant in passing off foreign currency  out of  India, i.e.,  to Hong Kong. It was

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accordingly held  that the contravention was established. It is contended  that the  statement of coaccused could be used only  to   corroborate  other   evidence  as   one  of   the circumstances under  Section 30  of the Evidence Act. But it cannot be used as substantive evidence without corroboration from other  independent evidence.  Except the  statement  of Dudani, there is no other independent evidence. Mr. Dudani’s evidence cannot  be pressed  into service  to arrive  at the conclusion that  the petitioner  is involved  in the passing off foreign currency out of India.      It must  be remembered  that the  statement made before the Customs  officials is  not a  statement  recorded  under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is  a material  piece of  evidence collected  by  Customs officials  under  Section  108  of  the  Customs  Act.  That material incriminates  the petitioner inculpating him in the contravention of  the provisions  of the  Customs  Act.  The material can  certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani’s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be  used as  substantive evidence  connecting the petitioner  with  the  contravention  by  exporting  foreign currency out of India. Therefore, we do not think that there is any  illegality in  the order  of confisaction of foreign currency and  imposition of  penalty.  There  is  no  ground warrantaing reduction of fine.      The special leave petition is dismissed accordingly.