Case: K.I. Pavunny Vs. Asstt. Collr. , C.E

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. The State of Madhya Pradesh, AIR 1952 SC 159 , and Chandrakant Chimanlal Desai v. State of Gujarat, JT 1991(5) SC 373 : (1992) 1 SCC 473. 2. The facts in this case are that at 8 a.m. on December 6, 1980, 200 gold biscuits of foreign marking were recovered from the compound of the appellants 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 bedroom. The appellant gave, in his own handwriting, confessional statement, Ex. P4, at 1 a.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. P4, the recovery proceedings, Ext. P3, and evidence of witnesses, PWs 1 to 5 for proof of recovery of the contraband from the compound of the appellants 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 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.

Reasoning:
17. 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 the authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence Act.18. (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 complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence and summons are 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 appellants 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.19. It is true, as pointed out by Sri 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 no 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 Evidenceis seen that, admittedly, the appellant made his statement in his own hand-writing giving wealth of deals 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 Ext P4 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 after- thought. The High Court therefore, rightly has not given any weightage 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 appellants 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 from the window of his bedroom 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 bed-room window. Therefore, the High Court was right in its conclusion, though for different reasons, that Ext. P4 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 trueis 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 Indian Penal Code, 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 persons as was held in Bhagwan Singh v. 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 inculpating 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 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 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.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.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 a.m. on December 6, 1980 in the presence of Panch (mediator) Witnesses including PW. 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. PWs 2 and 5 also withstood the gruelling 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 4 hours. It is unlikely that during that short period PWs 2 and 5 would have obtained the retracted confession under Ex. P4 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 Ext. P4 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 Rams case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhars case and also in Rustom Dass case the retracted confessional statement found basis for conviction and in the latter the recoveries were relied as corroborative evidence. In Haroom Abdullas case, this Court used the evidence of co-accused as corroborative evidence.33. 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 thelearned 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 soul of law. Best way to discover truth is through the interplay of viewpoints. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on 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 routed from mans proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth triumphs. 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, Ext. P4 to be 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 no error of law.34. 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 sub-section 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.