Crl. Revn. No.2173 of 2002 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revn. No.2173 of 2002 Date of decision. 01.04.2009 1. Sardara Singh alias Saadh son of S. Chanan Singh, 2. Darbara Singh alias Bara son of S.Chanan Singh. Both resident of village Wan Tara Singh, P.S. Khalra, District Amritsar. ....... Petitioners Versus Assistant Collector(Custom), Department of Revenue, Ministry of Finance, Govt. of India, Amritsar. ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Monika Jalota, Advocate (Amicus-curiae) for the petitioners. Mr. HPS Ghuman, Advocate for the respondent. **** Sham Sunder, J. This revision petition is directed against the judgment dated 27.09.2002, rendered by the Court of Sessions Judge, Amritsar, vide which Crl. Revn. No.2173 of 2002 --2-- it dismissed the appeal, against the judgment of conviction and the order of sentence dated 01.08.2000, rendered by the Court of Chief Judicial Magistrate, Amritsar, convicting the accused, for the offence, punishable under Section 135 of the Customs Act,1962(hereinafter referred to be as the 'Act' only) and sentenced them to undergo RI for a period of three years each, and to pay a fine of Rs.5,000/- each, and in default of payment of the same, to undergo further rigorous imprisonment, for a period of six months each. However, Sham Singh alias Shama, accused, died, during the course of the trial, and the proceedings against him were dropped. 2. The facts, in brief, are that on 29.05.1989,at about 8.30 AM, a Border Security Force party of 45 Battalion, led by Thoru Ram, Deputy Commandant, alongwith police officials apprehended Sardara Singh alias Saadh son of Chanan Singh, resident of village Wan, near his tubewell, on the Indo Pak Border. On his personal search, 109 gold biscuits of foreign original of 24 carat purity, weighing 12.709 Kgs, valued at Rs.40,03,461/-,wrapped in cloth packets, were Crl. Revn. No.2173 of 2002 --3-- recovered. On demand, Sardara Singh, accused, could not produce any document or evidence for lawful import/ acquisition/ possession of the same, which were seized by the aforesaid party, under Section 111 of the Act and Section 66 of the Gold (Control) Act, 1968 on the reasonable belief that the same were liable for confiscation under Section 111 of the Act, and Section 71 of the Gold Control Act, 1968. The seized gold biscuits were handed over to the Customs authorities by the Border Security Force on 31.05.1989. 2-A. On 31.05.1989 and 03.06.1989, Sardara Singh alias Saadh, accused, made confessional statements before the Customs Authorities, under Section 108 of the Act, admitting the recovery of 109 gold biscuits of foreign origin, from his possession. He also stated that he was to carry the aforesaid gold biscuits, to his village Wan, and the delivery was to be made by him to his brother Sham Singh. He also disclosed that he, Darbara Singh, his brother, and one Surat Singh alias Surti, were working as carriers, for his brother Sham Singh, who had contacts with one Salim Chaudhary of Pakistan. On 13.09.1989 Darbara Singh, Crl. Revn. No.2173 of 2002 --4-- accused, was also apprehended. He made a confessional statement under Section 108 of the Act, corroborating the version of Sardara Singh alias Saadh, accused. Accused Sham Singh alias Shama,(since expired) and Surat Singh alias Surti, residents of village Wan, did not join the investigation. It was further stated that Sardara Singh alias Saadh, Sham Singh alias Shama( since expired ) and Darbara Singh had illegally imported/ acquired/ possessed the seized 109 gold biscuits, referred to above, and, thus, committed an offence punishable under Section 135 of the Act and Section 85 of the Gold (Control) Act, 1968. The accused were arrested. Ultimately, a criminal complaint, was filed against the accused. 3. After the presentation of the complaint, all the accused were summoned to face trial, for the offence, punishable under Section 135 of the Act. They put in appearance, in the Court, and were supplied copies of the complaint, and other documents, relied upon by the complainant. Sham Singh alias Shama, accused, expired, and, as such, the proceedings against him stood abated. Crl. Revn. No.2173 of 2002 --5-- 4. In pre-charge evidence, the complainant examined Thoru Ram, Retired Deputy Commandant, BSF,(PW-1) and Davinder Singh, Inspector Customs(Preventive),(PW-2). Both of them deposed, in terms of the version of the complainant as stated above,and proved various documents, as also the voluntary confessional statements, made by the accused, under Section 108 of the Act. Thereafter, the pre-charge evidence was closed. 5. After hearing the Counsel for the parties, and, on going through the pre-charge evidence, the trial Court, found that a prima-facie case was made out, for the commission of offence, punishable under Section 135 of the Act, against the accused. Accordingly,the charge was framed against them, to which they pleaded not guilty and claimed judicial trial. They stated that they did not want to further cross-examine the witnesses, examined before charge. 6. In the after-charge evidence,the complainant examined R.S. Jakhar, Assistant Commandant, BSF, (PW-3), who corroborated the statements of Thoru Ram, complainant,(PW-1) and Davinder Singh, (PW-2). Thereafter, the after Crl. Revn. No.2173 of 2002 --6-- charge evidence was closed, by the complainant. 7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the evidence of the complainant. They denied that they made any confessional statements before the Custom Officers. They pleaded false implication. They, however, did not lead any evidence, in their defence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by Sardara Singh alias Saadh and Darbara Singh alias Bara, accused-appellants, which was dismissed vide judgment dated 27.09.2002, by the Court of Sessions Judge, Amritsar. 10. Still feeling dis-satisfied, the instant revision-petition, was filed by the revision-petitioners. Crl. Revn. No.2173 of 2002 --7-- 11. I have heard the Counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully. 12. The Counsel for the revision- petitioners, submitted that the revision- petitioners were not found in possession of the aforesaid gold biscuits, on any occasion. She further submitted that the Courts below recorded the conviction and awarded sentence to the accused, merely on the basis of their alleged confessional statements, under Section 108 of the Act, recorded by the Custom Officers. She further submitted that the Custom Officers, being Police Officers, the confessional statements, allegedly made before them by the accused, were hit by the provisions of Section 25 of the Indian Evidence Act, 1872 and, thus, were not legally admissible. She further submitted that no other evidence was produced by the complainant, to prove that the accused were found in possession of the gold biscuits, aforesaid, and thus, they committed the offence, punishable under Section 135 of the Act. She also submitted that though the alleged recovery was effected, on 29.05.1989, from Sardara Singh alias Crl. Revn. No.2173 of 2002 --8-- Saadh, and his alleged confessional statements were recorded on 31.05.1989 and 03.06.1989, whereas, the alleged confessional statement of Darbara Singh alias Bara was recorded on 13.09.1989, under Section 108 of the Act. She further submitted that the mere fact that such statements were recorded by the Customs Authorities, after the lapse of sufficient time of the alleged recovery, in itself was sufficient to show that no such statements, much less voluntary, were made by the accused. She further submitted that the Courts below were, thus, wrong in recording conviction, and awarding sentence, on the basis of legally inadmissible statements, under Section 108 of the Act, allegedly made by the accused, resulting into miscarriage of justice. She, thus, submitted that the judgments of conviction and the order of sentence, being perverse and illegal, are liable to be set aside. 13. On the other hand, the Counsel for the respondent, submitted that the voluntary confessional statements, made by the accused, before the Custom Officer, under Section 108 of the Act, were legally admissible. He further submitted that the Custom Officers are not the Police Crl. Revn. No.2173 of 2002 --9-- Officers and, as such, the confessional statements were not hit by the provisions of Section 25 of the Indian Evidence Act. He further submitted that the Courts below were right, in recording conviction, and awarding sentence, to the accused, on the basis of the said statements, coupled with the recoveries of gold biscuits aforesaid. He further submitted that the mere fact that the voluntary confessional statements made by the accused, were recorded after some delay, in itself was not sufficient to disbelieve the same. He further submitted that the judgments of conviction and the order of sentence, rendered by the Courts below, are legal and valid, and the same deserve to be upheld. 14. The first question, that arises for consideration, is, as to whether, the voluntary confessional statements Ex.PD and Ex.PF dated 31.05.1989 and 03.06.1989 respectively made by Sardara Singh alias Saadh, accused (revision- petitioner), and Ex.PG dated 13.09.1989, made by Darbara Singh alias Bara, accused (revision- petitioner), under Section 108 of the Act before the Custom Officers, are admissible into evidence or not. In State of Punjab vs.Barkat Ram,AIR,1962 Crl. Revn. No.2173 of 2002 --10-- (Supreme Court) 276, a decision rendered by a three Judge Bench, the Apex Court, was called upon to consider whether the Custom Officers to whom the confessional statement was made, could be said to be the Police Officers, within the meaning of Section 25 of the Evidence Act. On behalf of the prosecution, it was argued that the mere fact that certain powers of arrest, search, seizure and recording of evidence, had been conferred, on such officers, in the cases, where the contravention of the provisions of the Statute, was complained of, is not sufficient to make them Police Officers, under Section 25 of the Evidence Act. The respondents, on the other hand, contended that the Officers, on whom such powers were conferred, were, in fact, Police Officers, no matter, by what name, they were called. The Apex Court, by majority, pointed out that the primary function of the Police, under the Police Act, 1861, is prevention and detection of crime, while the Customs Officers, were mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties, i.e., they were more concerned with the goods and the customs duty, Crl. Revn. No.2173 of 2002 --11-- than with the offender. After referring to the provisions of various Statutes, including Section 5(2) of the Old Criminal Procedure Code (now Section 4(2)of the Code) it was held by the Apex Court, that merely because the Custom Officers, had been invested with certain powers, having similarity with those of the Police Officers, was not sufficient to make them Police Officers, within the meaning of Section 25 of the Evidence Act. 15. In Romesh Chandra Mehta v. State of West Bengal, AIR 1970, (Supreme Court ), 940, a Constitutional Bench of the Apex Court, observed that the test for determining, whether an Officer of the Customs, is deemed to be a Police Officer, is whether, he is invested with all the powers of a Police Officer, qua investigation of an offence, including the power to submit a report under Section 173 Cr.P.C. It was held that since a Custom Officers exercising the powers, to make an enquiry, could not submit a report, under Section 173 Cr.P.C., and, as such, he could not be said to be a Police Officer, within the meaning of Section 25 of the Evidence Act. Crl. Revn. No.2173 of 2002 --12-- 16. In Illias v. Collector of Customs, Madras, AIR 1970 ( Supreme Court ) 1065, the same very Bench was required to consider, if the Custom Officers under the Customs Act, 1962, were Police Officers, within the meaning of Section 25 of the Evidence Act. The Apex Court, referred to all the cases earlier decided, and came to the conclusion, that they were not Police Officers, within the meaning of Section 25 of the Evidence Act, as they could not present report, under Section 173 Cr.P.C. 17. In Pavunny v. Assistant Collector 1997(3) RCR, 71 ( SC ), a judgment rendered by a three Judge Bench of the Apex Court, it was held that the confessional statement, made before a Custom Officer, was admissible, as he is not a Police Officer, within the meaning of Section 25 of the Evidence Act, though he is invested with many of the powers, which an officer-incharge of the Police Station exercises, while investigating an offence. It was also held that though a Custom Officer,is a person in authority, within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement of the accused, pursuant to his Crl. Revn. No.2173 of 2002 --13-- appearance, either after issuance of the summons or after his surrender, such statement cannot be characterized to have been obtained, by threat inducement or promise, and the self same statement, is admissible in evidence on the complaint laid by the Custom Officer. 18. In Veera Ibrahim v. The State of Maharashtra 1976(2) SCC 302, the appellant was 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 FIR, nor the police opened the packages or prepared the inventories of the goods packed therein. The police dropped further proceedings, but informed the Custom Authorities, which opened the packages, inspected the goods, and, on finding the same to be contraband goods, seized the same under a panchnama. The Custom Authorities called the appellant, and his companion, to the Custom House, took them into custody, and after due compliance with the requirements of law, the Inspector of Custom questioned the appellant and Crl. Revn. No.2173 of 2002 --14-- recorded his statement under Section 108 of the Customs Act. Subsequently, he was charged and tried for the offence under Sections 135(a) and 135 (b) of the Custom Act, 1962, and Section 5 of the Imports and Exports (Control)Act, 1947. In these circumstances, the question which arose, before the Apex Court, was, as to whether, such statement made under Section 108 of the Customs Act, by the appellant, therein, were hit by the provisions of Section 25 of the Evidence Act and, as such, inadmissible into evidence, being in the nature of confession or not. While answering the poser, the Apex Court held that, in order to claim the benefit of the guarantee, against testimonial compulsion, embodied in clause (3) of Article 20 of the Constitution of India, it must be shown, firstly, that the person, who made the statement was “accused of any offence” and secondly, that he made this statement, under compulsion. The phrase “accused of any offence” includes within its ambit, only a person, against whom a formal accusation, relating to the commission of an offence, has been levelled, which, in the normal course, may result in his prosecution. In these circumstances, it was Crl. Revn. No.2173 of 2002 --15-- held by the Apex Court, that when the statement of the appellant, was recorded, by the Custom Officers, under Section 108 of the Act, the appellant was not a person “accused of any offence” under the said Act. It was further held that an accusation which would stamp him, with the character of such a person, was levelled only, when the complaint was filed against him, by the Assistant Collector of Customs, complaining of the commission of offence, under Section 135(a) and Section 135(b) of the Customs Act. In these circumstances, it was held that the said statements were not hit by Article 20(3) of the Constitution of India, and Section 25 of the Evidence Act. 19. From the principle of law, laid down, in the aforesaid cases, it is clearly evident that the confessional statements made by the accused, before the Custom Officers, under Section 108 of the Act, if found to be voluntary, would be legally admissible into evidence. The Counsel for the revision-petitioners, however, placed reliance on Noor Aga v. State of Punjab and another, 2008 (3) RCR (Criminal) 633 (SC), a decision rendered by two Hon'ble Judges of the Apex Court, in support of Crl. Revn. No.2173 of 2002 --16-- her contention, that since the Custom Officers, are Police Officers, confessional statements, made by a person, before them, under Section 108 of the Act, were hit by the provisions of Section 25 of the Indian Evidence Act, 1872. In view of the principle of law, laid down, in Romesh Chandra Mehta's,Illias's, State of Punjab's and Pavunny's cases (supra), decided by larger Benches of the Apex Court, no help can be drawn, from the principle of law, laid down, to the contrary, on the same point, in Noor Aga's case (supra), decided by a two Judge Bench of the Apex Court. In this view of the matter, the submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected. 20. The mere fact that the confessional statements of Sardara Singh alias Saadh, accused were recorded on 31.05.1989 and 03.06.1989 and of Darbara Singh alias Bara, accused on 13.09.1989, did not mean that the same were not voluntary. No evidence, whatsoever, was produced, on the record, that the accused were subjected to torture, coercion or duress, resulting into the making of confessional statements by them. The solitary Crl. Revn. No.2173 of 2002 --17-- circumstance that the confessional statements were recorded by the Customs Authorities under Section 108 of the Act, after some delay, could not be said to be sufficient to discredit their reliability. It was proved from the evidence, produced by the complainant, that the accused made these statements voluntarily, without any pressure or coercion or duress. It is evident from Ex.PD, confessional statement dated 31.05.1989, made by Sardara Singh alias Saadh, that he was illiterate and could not read and write. He further stated that his statement had been recorded by the Custom Authorities, on his dictation. He also stated that he had made such a statement, in his sound disposing mind, without any fear, allurement, coercion or duress. It was further stated by him, that the statement was read over to him and after admitting the same to be correct, he thumb marked it. He also admitted the recovery of the aforesaid gold biscuits, from him, by the Border Security Force Party and Police officials, on the relevant day with regard to the possession/acquisition/ importation whereof he could not produce any proof. Ex.PF is the other confessional statement, made by Crl. Revn. No.2173 of 2002 --18-- Sardara Singh alias Saadh, on 03.06.1989, wherein he also admitted the recovery of gold biscuits, referred to above. He also admitted that he could not produce any documents with regard to the possession/ acquisition/ importation thereof. He also stated in this confessional statement, that he and Darbara Singh were only carriers and they were smuggling these gold biscuits for their brother Sham Singh (since expired). He also stated that he was making the same, in his sound disposing mind, without any fear, pressure or allurement. It was further stated by him, that he was read over and explained the said statement, and after admitting the same to be correct, he thumb marked it. Darbara Singh, accused, also made confessional statement dated 13.09.1989, wherein, he admitted that he is the brother of Sardara Singh alias Saadh and Sham Singh, accused ( since expired ). He also stated that Sardara Singh alias Saadh Singh,was his brother from whom on 29.05.1989, 109 gold biscuits were recovered. He also admitted that he and Sardara Singh alias Saadh Singh were working for their brother Sham Singh, and were smuggling the gold biscuits for him. He also stated Crl. Revn. No.2173 of 2002 --19-- that his brother Sham Singh was supplying the gold biscuits to Salim Chaudhary of Pakistan. He also stated that he was making his statement in sound disposing mind, without any fear, allurement or pressure. He further stated that he thumb marked the said statement, after admitting the same to be correct. From the perusal of the confessional statements, made by the accused, before the Customs Authorities, referred to above, it is evident that the same were voluntary, and, as such, full reliance could be placed thereon. The Courts below were, thus, right in holding the same to be voluntary. This Court also agrees with the conclusion arrived at, by the Courts below, in this regard. The submission of the Counsel for the revision-petitioners in this regard, being devoid of merit, must fail, and the same stands rejected. 21. The next question that arises for consideration, is as to whether on the basis of the retracted confessional statements, made by Sardara Singh alias Saadh and Darbara Singh alias Bara, under Section 108 of the Act, before the Custom Officers, confessing their guilt, could be made the basis of conviction or not. In the instant case, Crl. Revn. No.2173 of 2002 --20-- Sardara Singh and Darbara Singh, for the first time, in their statements, under Section 313 of the Code of Criminal Procedure, denied that they made the confessional statements Ex.PD, Ex.PF and Ex.PG. The recovery in this case was effected on 29.05.1989, whereas, the statements of Sardara Singh, and Darbara Singh, accused under Section 313 of the Code of Criminal Procedure were recorded on 03.07.2000. It means that Sardara Singh and Darbara Singh retracted from their voluntary confessional statements, for the first time, after about eleven years. In case,they had not made any such confessional statements, under Section 108 of the Act, they had many occasions, when they were produced before the Court, during the course of remand, and even during the course of trial, to retract from such statements. The mere fact that they retracted from such confessional statements, after about eleven years, in itself, goes to show that they voluntarily made the same, but, lateron, their retraction was only an afterthought. The voluntary confessional statements made by the accused coupled with the recovery of gold biscuits,referred to above,with regard to the Crl. Revn. No.2173 of 2002 --21-- possession/acquisition/ importation whereof they could not produce any proof, were sufficient to record their conviction and award them sentence. In Union of India vs. Satrohan, 2008(3) RCR (Crl. ), 803,(SC) recovery of 99 bags of contraband from the accused, was effected, by the Custom Officers. The accused retracted from his voluntary confessional statement, after more than six years. In these circumstances, it was held that the retraction was an afterthought, and the conviction could be based on such voluntary confessional statement. The principle of law, laid down, in Union of India's case (supra) is fully applicable to the facts of the instant case. The submission of the Counsel for the revision- petitioner, being without merit, must fail, and the same stands rejected. 22. The concurrent findings, recorded by the Courts below, based, on the correct appreciation of the cogent, convincing, reliable and trust-worthy evidence of Thoru Ram, (Retired) Deputy Commandant,BSF(PW-1),Davinder Singh, (PW-2), and R.S. Jhakar, (PW-3), who deposed with regard to the recovery of gold biscuits, aforesaid, from Crl. Revn. No.2173 of 2002 --22-- Sardara Singh, coupled with the voluntary confessional statements made by the accused, under Section 108 of the Act, that the accused were guilty of the offence, punishable under Section 135 of the Act, do not suffer from any illegality or perversity. It is settled principle of law, that the Court, in its revisional jurisdiction, cannot re-evaluate and re-appreciate the evidence, produced by the parties, until and unless, it comes to the conclusion, that the findings recorded by the Courts below, are perverse or erroneous, on account of mis-reading of