NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined

1. The complainant-H.K. Thakur had filed the complaint on 16.9.1989 being Criminal Case no.538 of 1989 before the Chief Metropolitan Magistrate's Court, Ahmedabad under Section 135 of the Customs Act, 1962 and under Section 85 of the Gold (Control) Act, 1968 and under Section 120(B) and 120(A) of Indian Penal Code, 1860 (for short ' IPC ') against (1) Rajendra Natverlal Soni, (2) Rakesh Chandulal Soni, (3) Dilip Vanaji Soni, (4) Narendra Kantilal Soni and (5) Mahesh Kantilal Soni.

1.2 The present revisions applications has arisen against the judgment of the additional city sessions Judge, Ahmedabad dated 14.12.2004 dismissing the Criminal Appeal no.32 of 2002 and confirming the order of learned Metropolitan Magistrate passed in Criminal Case no.538 of 1989 dated 19.6.2002.

1.3 The learned Additional Chief Metropolitan Magistrate, Ahmedabad while deciding the matter on 19.6.2002, convicted and sentenced accused no.1, 2 and 4 for the offence under Section 135 of the Page 2 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Customs Act read with Section 120B of the IPC with RI of 3 years and with fine of Rs.5,000/- in default, further one month SI. Under Section 85 the Gold Control Act, accused no.1, 2 and 4 were found guilty and were sentenced to six months RI with fine of Rs.2,000/- and in default of payment of fine, further one month SI. The sentence against accused no.1, 2 and 4 were ordered to run concurrently.

1.4 While accused no.3 was ordered to be convicted under Section 85 of the Gold Control Act and was sentenced for 3 months RI with fine of Rs.500/- and in failure to pay the fine, further one month SI. While he was acquitted from the offence under Section 120B of IPC read with Section 135 of the Customs Act.

1.5 Present Revision Applications no.88 and 89 of 2005 are of accused no.4 and 2 respectively. Accused no.1 died during pendency of Criminal Revision Application no.87 of 2005, so his matter stood abated.

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NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined

2. Facts of the case are that, on the basis of information, watch was kept near Raipur Darwaja, 3 Custom Inspectors were deputed, who have accordingly intercepted 2 accused persons viz. (1) Rajendra Natverlal Soni and (2) Rakesh Chandulal Soni near Raipur Darwaja on a scooter bearing no.GJK 9434 with 5 contraband gold stripes at about 10-15 hrs. in the morning on 6.8.1989. Both the accused were brought to Customs Office at Navrangpura, thereafter search and seizure procedure was done. Subsequently, their statements under Section 108 of the Customs Act were recorded by the Customs Officer.

2.1 During the course of inquiry, 5 contraband foreign gold stripes were alleged to be recovered from accused no.1 Rajendra Natverlal Soni. 2.2 As per the prosecution case, the accused no.1 was carrier and accused no.2 was the owner of the said gold stripes.

2.3 Accused no.2 Rakesh Chandulal Soni had purchased 3 gold biscuits from Mahesh Kantilal Soni and 2 gold biscuits from Narendra Kantilal Soni accused no.4. Page 4 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024

NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined 2.4 As per the prosecution case, after purchasing the said gold biscuits, accused Rakesh Chandulal Soni and Rajendra Natverlal Soni went to the shop of Parekh Art Jewelers for converting gold bars into gold stripes. The owner of Parekh Art Jewellers was Sureshkumar Parekh, while accused no.3 Dilip Vanaji Soni was working with Sureshkumar Parekh in the shop. As per the prosecution case, said gold bars were converted into gold stripes by accused no.3 Dilip Vanaji Soni after taking charge of Rs.25/-.

2.5 Thereafter, when the accused no.1 Rajendra Soni and accused no.2 Rakesh Soni were going for delivering the said gold stripes, near Raipur Darwaja, Ahmedabad, 3 Customs Inspectors apprehended accused no.1 and accused no.2 Rajendra and Rakesh.

2.6 Learned advocate Mr. Yatin Soni very vehemently contended that the Criminal Appeal is a statutory right of the accused and that the learned Appellate Court was required to appreciate the contention raised by the advocates on record by Page 5 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined appreciating the evidence recorded by the learned Metropolitan Magistrate during the trial. Learned advocate Mr. Soni submitted that the learned Appellate Court has failed to take into consideration the evidence of individual witnesses to examine the legality and validity of the judgment of the learned Metropolitan Magistrate Court. Mr. Soni submitted that the learned Appellate Court had merely given the reasoning on the basis of the provisions of law and judgments cited, where actually the authority of the officers to seize the alleged gold and the power of the officer recording the statements were required to be examined by way of the evidence recorded. Mr. Soni further stated that the corroboration and contradiction of the witnesses were to be examined. Mr. Soni submitted that the moot question which was required to be examined was whether the statement noted to be under Section 108 of the Customs Act was admissible in law and whether the gold seized were smuggled goods.

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3. Learned advocate Mr. Yatin Soni for the applicant submitted that during the course of inquiry as alleged, 5 contraband foreign gold stripes were allegedly recovered with the specific allegation that two gold biscuits were purchased from accused no.4, while three gold biscuits were purchased from accused no.5, who subsequently came to be discharged from the matter mainly on the ground that there was no material against accused no.5 and that he had not given any confessional statement under Section 108 of the Customs Act and that nothing was recovered from him. Advocate Mr. Soni submitted that if that is to be considered, then there would also not be any case against Narendra Kantilal Soni - accused no.4, as his statement is not a confessional statement, nor does he know accused no.1 and 2.

3.1 Advocate Mr. Soni submitted that had the Customs Department really had the inputs and therefore, 3 custom officers had intercepted accused no.1 and 2 who were traveling on scooter bearing registration no. GJK 9434 then such 3 officers were required to be examined during the course of trial. Advocate Page 7 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Mr. Soni submitted that at Raipur Darvaja, no panchnama was drawn of detention of accused no.1 and 2 nor running panchnama was drawn. There is nothing to verify the fact that the accused no.1 and 2 were intercepted at Raipur Darvaja. Advocate Mr. Soni submitted that the time of detention and the time consumed for drawing of Panchnama at Navrangpura Custom office also becomes doubtful. The fairness of the proceedings are not reflected on record since the Panchnama drawn was not by a proper officer and further stated that had the Customs Department received the input, they were required to make arrangement for an independent panchas at Raipur gate but no such efforts were made by any of the 3 officers.

3.2 Advocate Mr. Soni submitted that the prosecution sought to rely upon the alleged confessional statement. The learned Trial Court was required to consider the time and the date of recording of the confessional statement and further submitted that narration of the prosecution taking the accused from Raipur Darvaja to custom house, Navrangpura would become hard to believe in absence of Page 8 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined examination of the Customs Officer who took the accused there. Advocate Mr. Soni submitted that the ground for shifting the accused from Raipur Darvaja to custom office, Navrangpura was on the pretext that mob had gathered, but none from any of the person gathered had been examined as an independent witness to corroborate the fact of interception of the accused no.1 and 2 at Raipur Darvaja. Advocate Mr. Soni submitted that the recovery of the gold stripes were shown at custom office, Navrangpura. The unusual time of recording the statement and recording the panchanma without any independent witnesses supporting the prosecution case would create doubt on the version of the customs officer, when the officer who had actually said to have done the entire proceeding is not examined as witness. The statement of accused no.1 and 2 after the alleged arrest at 10.30 a.m. on 6.8.1989 at Raipur Darvaja and panchanama of recovery of Muddamal recorded from 11:00 a.m. to 5:00 p.m. and thereafter, the statement recorded late under Section 108 of the Customs Act very clearly proves that there was an Page 9 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined illegal detention and that the statements were not voluntarily recorded, but it can be presumed that the statement so recorded were under force and threat, and coercion.

3.3 Advocate Mr. Soni submitted that the statements as alleged to be confessional by the accused were also required to be appreciated under the fact of retraction. Advocate Mr. Soni submitted that the Court was required to consider the aspect from the point of view of retracted statement, while the learned Judge had erred in shifting the burden on the accused observing that the accused have failed to prove that the statements were recorded under threat and were not on their own will. Advocate Mr. Soni submitted that the learned Trial Court as well as Appellate Court failed to examine the circumstances under which the confessional statements came to be recorded and the fact that the officer who had actually recorded the statement has not been examined by the prosecution and the officer examined failed to prove that he was duly empowered. Advocate Mr. Soni submitted that the allegation of purchasing two gold Page 10 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined biscuits from accused no.4 and three gold biscuits from accused no.5, have also not been proved by the prosecution to consider the gold as foreign bars.

3.4 In light of fact that the accused no.5 has been discharged, there would not be any case of purchase of contraband article as foreign gold. Advocate Mr. Soni submitted that the learned Judge was also required to take into consideration that the Gold Control Act was repealed long back on 6.6.1990. Further the allegation that the accused no.3 had converted the gold bars into gold stripes could not be proved by way of examination of any independent witness or by any panchnama drawn at the place of the shop to corroborate the allegation that the gold bars were converted into gold stripes through some instrument or machine of that shop and thereafter, the contraband gold bars on conversion as gold stripes were carried by accused no.1 and 2. Advocate Mr. Soni submitted that the allegation is against the accused no.1 that he was a carrier of the gold stripes while the owner of the gold stripes was accused no.2. Page 11 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024

NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined 3.5 Advocate Mr. Soni submitted that the seizure panchnama also becomes doubtful since the arrest was made on 6.8.1989 while the marks which were proposed to be read on the gold stripes are alleged to be not legible with bare eye. The alleged inscription could have been read by virtue of some microscopic article, but no such efforts were made by the officer to get the articles to be microscopically examined there. Further submitted that during the trial, it could be found out that the packets of seized articles were opened for the first time in the Court after 15.8.1989, and from 9.8.1989 to 15.8.1989, the article remained packed intact. Advocate Mr. Soni submitted that the newspaper packet reflected the date as of December 1989 while in the cross-examination, the witness expressed ignorance regarding the newspaper cover of December, 1989. Advocate Mr. Soni submitted that it could be found out from the newspaper where the page disclosed the weekly astrological forecast for the time period of 17.12.1989 to 23.12.1989, where the case of the prosecution is that the newspaper was used for the packing and Page 12 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined sealing of Muddamal on 15.9.1989 while it was opened in the court only on 26.11.1991. Advocate Mr. Soni submitted that therefore, the Court was required to doubt the seal and seizure and benefit of doubt was required to be given to the accused. 3.6 Advocate Mr. Soni submitted that the prosecution has also failed to prove that the gold was sold by accused no.4 and 5 to accused no.2 as no documentary evidence has been placed on record regarding its possession at the hands of accused no.4 and 5 while the Court has not found any case against accused no.5 while discharging him during the course of trial. Advocate Mr. Soni submitted that all the issues were raised but the learned Trial Court has not dealt with the same. 3.7 Mr. Yatin Soni, learned advocate for the applicant has relied upon the following judgments:-

d. Antapalli Venkata Ramana Murty v. The State , 1994 CrLJ 1693.

e. Union of India v. Abdulkadar Abdulgani Masmani , 1985 CrLJ 324.

f. Prem Singh @ Pappu Papiya v. Union of India , through Inspector Customs Department, Jaisalmer, 1995 CrLJ 1122.

g. State of Maharashtra v. Hasmukh Hargovind Shah , 1993 CrLJ 1953.

3.8 Advocate Mr. Soni submitted that under the Customs Act , the statements voluntarily given only would come under the purview of Section 108 of the Customs Act, 1962. Here the family members as well as others had by telegram and other means informed the customs office that the detention was illegal and further the accused had retracted their confessional statement stating that it was under Page 14 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024

3.9 Relying on the judgment in the case of Haroom Haji Abdulla (supra), learned advocate Mr. Soni submitted that the statement of co-accused cannot be considered in evidence unless and until corroborated in material particulars, as Section 133 of the Evidence Act settles the law that though the accomplice is a competent witness against the accused but to that the rider is an illustration (b) of Section 114 of the Evidence Act which calls for corroboration in material particulars and thus, in view of the judgment of Haroom Haji Abdulla (supra), Mr. Soni submitted that confession of the co-accused stands on a Page 16 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined lower level than accomplice, since accomplice's statement would be tested in cross-examination while the statement of the co-accused would not pass such rigors and thus, confession retracted must be looked into under Section 30 of the Evidence Act. It is further submitted that the statement recorded under Section 108 of the Customs Act shall not be before a police officer and hence, it should be scrutinized by the Court with great concern and circumspection, since the Court has to be satisfied, in such a case of such statement made by accused person to a Gazetted Officer whether has passed a test prescribed under Section 24 of the Evidence Act and if it gets vitiated under Section 24 , then that statement becomes useless in the criminal proceedings. Advocate Mr. Soni submitted that confessional statement of the co-accused under Section 108 though is admissible, cannot be used as substantive evidence as contemplated under Section 30 of the Evidence Act.

3.10 While referring to the judgment of Antapalli Venkata Ramana Murty (supra), Advocate Mr. Soni Page 17 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined submitted that the Gold Control Act deals with Section 85 regarding the search and seizure and when the recovery is alleged to be under Customs Act it requires proper appreciation of the evidence as such seizure becomes doubtful in absence of independent witness. Relying on the judgment in the case of Prem Singh @ Pappu Papiya (supra), it is submitted that retracted statements if not contradicted by existing reliable evidence, then it should be considered that the statement had not been given voluntarily.

3.11 Relying on the case of Hasmukh Hargovind Shah (supra), Advocate Mr. Soni submitted that the possibility of inducement and threat cannot be ruled out in absence of proof of fairness and adherence to provisions of law.

4. Countering the arguments, learned advocate Mr. Chirayu Mehta for the respondent no.2 - Customs Department relied upon the judgment of the Hon'ble Supreme Court in the case of Gulam Hussain Shaikh Chougule v. S. Reynolds , (2002) 1 SCC 155 to submit that the confessional statement recorded by Page 18 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined the customs officer under Section 108 of the Customs Act is neither hit by Section 164 of the Cr.P.C., nor Section 25 of the Indian Evidence Act in view of the judgment in the case of Duncan Agro Industries Ltd. (supra) and Haroom Haji Abdulla (supra). Romesh Chandra Mehta v. State of West Bengal , (1969) 2 SCR 461 and Percy Rustomji Basta v. State of Maharashtra, (1971) 1 SCC 847 and stated that the observation has been made in the judgment of the Hon'ble Apex Court that the High Courts have declined to accept on the basis of the evidence that the confessional statement was made under any inducement, threat or physical assault and thus, the Court did not find any need to interfere in the judgment of conviction. 4.1 Learned advocate Mr. Chirayu Mehta has also referred to the case of Naresh Sukhwani v. Union of India , 1995 Supp. 4 SCC 663 to submit that the statement before the Customs Officer is not a statement recorded by the police officer and it is material piece of evidence collected by the Customs Officer under Section 108 though the statement may inculpate the accused and the other Page 19 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined person, but it becomes substantive evidence during the trial, Advocate Mr. Mehta has also relied upon the judgment in the case of Badku Joti Savant v. State of Mysore , 1966 CrLJ 1353 to state that the power which has been given to the Custom Officer to record the statement would not be hit as per Section 25 of the Evidence Act and would be admissible in evidence unless otherwise proved under Section 24 of the Evidence Act. Learned advocate Mr. Chirayu Mehta submitted that the case has been proved before the learned Trial Court and confirmed by the appellant, thus there is no other reason to interfere in the judgment of conviction.

5. On perusal of the judgment of the learned Appellate Court, it appears that the learned Appellate Court has not examined the evidence recorded by the learned Metropolitan Court of the witnesses. The learned Appellate Judge has only discussed the legal contention but has not gone into detailed consideration of the evidence to come to the conclusion for confirming the judgment of the Metropolitan Court. In the case of State of Rajasthan v. Chandgi Ram 2014 14 SCC 596, the Page 20 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Hon'ble Supreme Court has observed in Paragraph 27 as under:-

6. In the case of Iqbal Abdul Samiya Mnalek v. State of Gujarat , (2012) 11 SCC 312, the Hon'ble Supreme Court has held that in the appeal against conviction, the proper mode of examination of evidence by Appellate Court and findings to be recorded by it would be that the Appellate Court looks into evidence adduced in case to arrive at an independent conclusion as to whether said evidence can be relied upon or not and even if it can be relied upon, then it must adjudicate Page 21 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined whether prosecution can be said to have proved beyond reasonable doubt on said evidence. It was further held that the Court without going into all materials including oral and documentary evidence disposing of appeal affirming judgment of trial Court would not be acceptable. It was further held that credibility of a witness has to be adjudged by the Appellate court in drawing inference from proved and admitted facts and the appeal cannot be disposed of without examining records/merits. The matter was remitted to the Court for decision afresh in accordance with law.

7. In the case of Bakshish Ram & Anr. v. State of Punjab , AIR 2013 SC 1484, it was observed that the Appellate Court has to apply its independent mind and record its own finding by making independent assessment of evidence and in absence of independent assessment by the Court, its ultimate decision cannot be sustained.

8. This Court having observed that the learned Appellate Court has failed to meticulously examine the evidence on record and express cogent and Page 22 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined convincing reasons with reference to the evidence, and if the judgment of the learned Appellate Court suffers from infirmities, the correctness of the findings, the legality and propriety of the findings are required to be examined and in turn to examine the confirmation of the sentence then the revisional jurisdiction can be invoked. This court is mindful of the fact that the revision court are meant not to act as an Appellate Court. The whole purpose of the revisional jurisdiction is to preserve the power of court to do justice in accordance to the principles of criminal jurisprudence. The revisional power of the Court under Section 397 to 401 of the Cr.P.C. is not to be equated with that of an appeal, unless the finding of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or when the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously the court may not interfere the decision in exercise of the Page 23 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined revisional jurisdiction as laid down in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Ors. 2015 (1) Crimes 90 (SC).

9. The revisional court would go into the evidence as to the facts where it is necessary to do justice to the parties more particularly when the Courts whose orders are challenged have acted in manner contrary to the well established principle of law, or the findings are without any evidence to support and there is illegality in arriving at a finding which is perverse.

10. Section 135 of the Customs Act reads as under:-

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;

(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.

(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:

special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year.

(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely:--

11. Section 85 of the Gold Control Act, 1968 is reproduced hereunder:-

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12. The charge was framed below Exh.240. The complainant was H.K. Thakur, Assistant Collector of Customs (Preventive), Customs House, Navrangpura who had filed his complaint on 16.6.1989. As per the facts recorded by the learned Trial Court Judge, while accused no.1 and 2 were on their way on their scooter were stopped by the officers, accused Rajendra Soni (A1) confessed that he is in his possession of 5 gold stripes of foreign marks which were prepared from gold bars. Accused Rakesh (A2) had affirmed the said fact and after such inquiry at Raipur Darvaja, since lot of people had gathered there, for further interrogation/inquiry and for the safety purpose along with the scooter, both the accused were taken to the custom house, Ahmedabad Page 30 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined and in presence of Panchas, Gazetted Officer of the Customs Department searched the accused and during the search, 5 gold stripes were found from the inner pocket of the trousers of the accused no.1. The weight of the gold was noted as 582.500 gms., valued at Rs.1,71,837.50. Each stripe was declared as of weight of 116.500 gms. None of the accused could produce any of the written document to show the legal possession and the ownership. In presence of Panchas before the Gazetted Officer, the accused no.2 Rakesh was examined but no such objectionable item was found from him.

13. As per the record of the learned Trial Court, Panchnama of 582.500 gms. gold was drawn and it was seized. Out of Panchas, one of the Panch was gold smith who on examination of the articles had stated it to be 24 carat pure gold which as per his knowledge, in general was not made in India. The learned Trial Court Judge noted that the accused Rajendra Soni in his statement under Section 108 of the Customs Act on 6.8.1989 had confessed that he had 5 gold stripes of gold in his possession and the accused Rakesh Soni had Page 31 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined confessed that he had gone to Parekh Art Jewelers, Ahmedabad, a shop where Dilip Soni accused no.3 was present, who had converted the gold bars into stripes and had charged Rs.5/- for each gold biscuits and therefore, Rs.25/- was given towards labour charge for converting the gold bars into gold stripes.

14. As per the prosecution, accused no.3 would convert the foreign mark gold biscuits into gold stripes under the labour charge and in the present case, Rs.25/- was paid to the accused no.3 by accused no.2 Rakesh Soni.

15. It was also noted in the judgment that accused Rajendra Soni had stated in his statement under Section 108 that he was also detained in 1962 under FORAPOSA. The learned Judge has observed that the accused Rakesh Soni's statement on 6.8.1989 confesses that he had purchased two gold biscuits on 6.8.1989 from accused no.4 Narendra Soni of foreign mark, 3 gold biscuits from accused no.5 Mahesh Soni. It has also been noted that Rakesh Soni has also stated in the statement that Page 32 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined 5 gold biscuits of foreign marks were in original form and he had got it converted in the morning of 6.8.1989 into gold stripes from Parekh Art Jewelers with accused Dilip Soni.

16. The accused Rakesh Soni had been a pillion rider on the scooter of Rajendra Soni, who had also admitted that at Raipur Darvaja in the morning of 6.8.1989, they were stopped by custom officer. As per Rakesh Soni, the gold stripes were to be given to an unknown person which as per the telephonic talks was to come at Raipur Darvaja but had not come to collect the same, while both the accused were arrested with the contraband gold.

17. Accused Dilip Soni's statement under Section 108 was recorded who had admitted before the Custom Officer that he was in shop in the name of Parekh Art Jewelers and 5 foreign mark gold biscuits were given to him and as per the instructions, by charging Rs.25/- as labour charge, he had converted the gold bars into gold stripes and had returned back the same to accused no.1 and 2.

18. At Exh.92, H.K. Thakor complainant was examined as Page 33 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined PW1, Girdharlal Trivedi, Superintendent of Customs was examined at Exh.106 as PW2, Superintendent Customs Naranbhai Bhavanbhai at Exh.114 was examined as PW3 and Inspector Ratilal Patel as PW4 was examined at Exh.158, Joseph Sayman, Superintendent of Customs (Preventive) was examined at Exh.191, Arvind Soni, PW5 was examined at Exh.276, Vinubhai Parmar, Custom Superintendent was examined at PW9 at Exh.328 and Arvind Modi, Custom Inspector was examined as PW10 at Exh.331 and Somalal Patel PW8 was examined at Exh.325. The defence had also produced the list at Exh.350 to examine the witness stating that they wanted to examine the witness and the process was issued but for a long period, the witness could not be made available before the Court and the matter was listed for final arguments.

19. The argument which was raised by the learned Public Prosecutor before the learned Trial Court Judge was about criminal conspiracy of all the accused for transit of the gold of foreign mark. H.K. Thakur who had given the complaint was examined who stated that the facts were brought Page 34 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined before him and after seeking requisite sanction, he had given the complaint. The learned Judge has considered the evidence of Naranbhai Bhavan at Exh.114 of seizing the goods and also the evidence of witness Ratilal Patel who had stated that the goods were sent to the customs godown and for the corroboration of the seized goods sent to the customs godown, witness PW2 Trivedi Girdharlal at Exh.106 was examined and for the purpose of corroboration of the seizure, panch witness Arvind Virjibhai Soni, PW5 was examined. Somalal Patel was also examined for the purpose of seizure and PW7 Bharat Mistri, FSL Science Officer at Exh.284 was examined for the purpose of purity of the gold and for his opinion.

20. It was argued that the confessional statement which was given by the accused at Exh.126, 129, 132 and 141 under Section 108 of the Customs Act were voluntarily and were recorded as per the provisions of the Act.

21. The statements which have been put in evidence and exhibited were during the course of examination of Page 35 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined witness PW3 Naranbhai Bhavanbhai, Superintendent Customs at Exh.114.

22. In terms of the argument by learned advocates, the issue to be verified would be whether inculpating part is confession caused by inducement, threat or promise and if found that such inculpatory part was not voluntarily given, then would be considered as vitiated on the premise envisaged in Section 24 of the Indian Evidence Act.

23. Section 24 of the Indian Evidence Act 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 Page 36 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined against him."

24. Section 108 of the Customs Act reads as under:-

25. Accordingly, the confession made by an accused person becomes irrelevant in criminal proceeding if making of the confession appears to the Court to have been caused by inducement, threat or promise. The expression 'confession' is not defined in the Act. The confession is a statement made by an accused which must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. The dictionary meaning of word "statement" is 'act of stating; that which is stated; a formal account, declaration of the facts, etc.' The word confession would be voluntarily, if made in a fit state of mind and not caused by any inducement, threat or promise. The burden is on the prosecution to show that the confession is voluntarily in nature not obtained as outcome of any threat or promise or has not been by any inducement.

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26. Under Section 24 of the Indian Evidence Act, following ingredients are required to be established:-

27. Section 24 contemplates confession by an accused.

In light of the provision of complaint made under Page 39 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Section 135 of the Customs Act when would an apprehended person be termed as accused. In Veera Ibrahim v. The State of Maharashtra , (1976) 2 SCC 302, it was held in Paragraph 9 that an accusation that would stamp him as an accused would be when the complaint was filed against him complaining of the commission of the offences made under Section 135(a) and (b) of the Customs Act .

28. Now in view of this opinion of the Hon'ble Apex Court, the statement recorded of the accused on 6.8.1989 and 7.8.1989 are to be examined in context with the provisions of Section 108 of the Customs Act.

29. In the case of Gulam Hussain Shaikh Chougule (supra), the case of the prosecution was to the effect that 207 silver ingots weighing approximately 30 kgs., valued at Rs.4,22,48,225/- were clandestinely brought into Goa in an Arab Dhow and the same were to be transported in the trawler Gramdev Navdurga (for short the trawler). When the said trawler was intercepted at Aguada Light House by the Officers of the Customs Page 40 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Department, the appellant was found to be present on the trawler. The investigation revealed that the trawler was stationed on the port for being used to carry and transport the contraband silver ingots. The question which was examined was while recording the statement under Section 108 of the Customs Act by the custom authority, whether had they not followed the safeguards provided under Section 164 of Cr.P.C. and whether the statements of the applicants were recorded under Section 108 of the Customs Act during the period of detention after giving threats and exercising duress. The medical papers of the applicants showed that they were assaulted and thus, the statement of the applicants was resisted on the ground that the statement recorded under Section 108 of the Customs Act cannot be said to be voluntarily. In the judgment of Gulam Hussain Shaikh Chougule (supra), the case of Duncan Agro Industries Ltd. (supra) was referred, wherein the Court had observed as under:-

30. In the case of Gulam Hussain Shaikh Chougule (supra), the cases of Haroom Haji Abdulla (supra), Romesh Chandra Mehta (supra), Percy Rustomji Basta (supra), Harbansingh Sardar Lenasingh v. State of Maharashtra , AIR 1972 SC 1224, Veera Ibrahim v. The State of Maharashtra, ( 1976) 2 SCC 302 and Poolpandi v. Supdt., Central Excise , 1992 CrLJ 2761 were referred.

31. In Gulam Hussain Shaikh Chougule (supra), the confessional statement recorded by the custom officer under Section 108 of the Customs Act is considered to be neither hit by Section 164 Cr.P.C., nor Section 25 of the Indian Evidence Act. It was thus held in Paragraph 14 as under:- Page 43 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024

32. The conviction followed on the basis of the statement recorded by the custom officer purported to be under Section 108 of the Customs Act of the accused. In view of the judgment referred hereinabove, in the facts of the case, the court has to scrutinize the statement made to a non- police personnel, thus the court has to be satisfied in such cases that the inculpatory statement recorded was not by any inducement, threat or promise.

33. The provisions of power of search, the competency of the person making search, arrest and power of arrest Sections 101 , 102 , 104 and 106 of the Customs Act are reproduced for ready reference, which were prevailing at the relevant time.

section (1) are the following:--

102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate.-- (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101 , the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate.

(2) If such requisition is made, the Page 45 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate.

(3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) Before making a search under the provisions of section 100 or section 101 , the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witness. (5) No female shall be searched by any one excepting a female.

104. Power to arrest.--

(1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under Section 135 , he may arrest such person and shall, as soon as may be, inform him of the grounds Page 46 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined for such arrest.

(2) Every person arrested under sub- section (1) shall, without unnecessary delay, be taken to a magistrate.

(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure , 1898 (5 of 1898).

(4) Notwithstanding anything contained in the Code of Criminal Procedure , 1973 (5 of 1898), an offence under this Act shall not be cognizable.

106. Power to stop and search conveyances.--

(1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and--

(a) rummage and search any part of the aircraft, vehicle or vessel;

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(b) examine and search any goods in the aircraft, vehicle or vessel or on the animal;

(c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld.

(2) Where for the purposes of sub-

section (1)--

(a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful for any vessel or aircraft in the service of the Government while flying her proper flag and any authority authorised in this behalf by the Central Government to summon such vessel to stop or the aircraft to land, by means of an international signal, code or other recognized means, and thereupon, such vessel shall forthwith stop or such aircraft shall forthwith land; and if it fails to do so, chase may be given thereto by any vessel or aircraft as aforesaid and if after a gun is fired as a signal the vessel fails to stop or the aircraft fails to land, it may be fired upon;

(b) it becomes necessary to stop any vehicle or animal, the proper officer may use all lawful means for stopping it, and where such means fail, the vehicle or animal may be fired upon." Page 48 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024

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34. PW1 Harishkumar Ratilal Thakur was the Assistant Custom Collector (Preventive) on 6.8.1989. The evidence recorded at Ex.92 suggests that on that day, they had received information that two persons taking gold were passing near Raipur Darwaja so the witness had made arrangement at the office and they were intercepted. According to the witness, information regarding the scooter number must have been received and stated that in the office, when the search was made, the gold stripe was found with the pillion rider, which was seized by the officer by way of panchnama.

35. As per the evidence of this witness, the Collector on reading the record had given him sanction to file complaint under Gold Control Act and the Custom Act. The witness identified the signature of Shri Virendrasinh and adduced the documents in evidence at Ex.93-94. The witness identified his signature on Ex.30-his complaint and stated in examination-in-chief that he had not recorded any statement nor had drawn panchnama.

36. In cross-examination, the witness stated that he Page 49 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined has no personal knowledge of the facts stated in the examination-in-chief and has given those facts on the basis of the record.

37. Regarding the information received, the witness stated that he is not in a position to produce the information so recorded. According to him, the information was received by M.P. Shah, Inspector.

38. The witness has admitted of receiving telegram from Parul Pacchigar which was replied under his signature. The reply was produced at Ex.95. The witness has also admitted of a telegram from Advocate H.C. Kapadia for accused Rakesh Chandulal Soni (A2) which was introduced in evidence at Ex.96. The witness in letter at Ex.97 stated that before writing Ex.97, he has not inquired regarding the telegraph. According to the witness, show cause notice was given to all the accused.

39. The witness does not remember whether accused no.4 had given a letter to their department. He does not remember that the statement and signature were forcefully taken.

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40. In cross-examination, the telegram of Jitendra Kantilal dated 7.8.1989 and 8.8.1989 were referred. The office copy bearing his signature was produced at Ex.100. The witness deposed that he had made no personal inquiry, but had relied on his officer.

41. The original application of Parul Pacchigar was produced at Ex.101. Witness affirmed of application of accused Rakesh received from jail with jail forwarding letter which was put in evidence at Ex.102 and 103. Telegram of Advocate H.C. Kapadia was produced at Ex.104 and 105.

42. The witness clarified in the evidence that the show cause notice was not given till the complaint. From the complaint, the witness stated that it becomes clear that till the date of complaint, they had not received the Mint Master report.

43. So the noticeable fact is that this witness is merely a complainant but has no personal knowledge. He had relied on his officers. He has not recorded any statement nor has drawn any Page 51 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined panchnama. The witness has produced the telegrams and letter from the accused or on behalf of the accused. The glaring evidence is that on the date of complaint, there was no mint officer report which is dated 25.10.1989. He also stated that show cause notice was not given till the complaint.

44. So far as 'information' received, the witness is not bound to disclose. Section 125 of the Evidence Act protects the revenue officer, he cannot be compelled to say the place or source of receiving information. Section 125 of the Evidence Act is reproduced hereunder:-

45. The evidence of the witness record the telegrams for and on behalf of the accused.

46. Telegram Ex.98 is as under:-

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47. Ex.96 - Telegram is reproduced: "7/8 46/49

48. Bail application of accused no.2 Rakesh Chandulal Soni was filed on 7.8.1989 and bail application of accused no.1 Rajendra Natwarlal Soni was filed on 8.8.1989. In the bail application, accused no.2 had alleged of forceful signature on certain statement and that signature was taken on photograph of a person not known to him and even has prayed for treatment from Civil Hospital alleging that he was subjected to physical and mental harassment, while for Rajendra Soni (A-1), it was urged that he was not provided with primary need nor was given food nor was allowed to sign Vakalatnama.

49. Bail application of Dilip Soni (A-3) was on 11.8.1989 and of Narendra Kantilal Soni (A-4) was filed on 14.8.1989.

50. According to the witness PW1, they had information regarding accused no.1 and 2. After both of them were brought at their office by the officer, as per the witness both were sent to Superintendent Page 54 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Preventive. The witness had not inquired whether both were brought under arrest. The complaint was registered on 16.9.1989.

51. Witness no.2 Girdharlal Mohanlal Trivedi stated that on 9.8.1989, he was serving as Custom Godown Keeper at Ahmedabad. As per his evidence, at that time, the Superintendent Preventive in custom was B.M. Rohit. On 9.8.1998, PW2 was given a sealed packet with inventory. The entry in Muddamal register as 4/155/89 dated 9.8.1989 bears his signature as receiver and the signature of Superintendent Preventive of Custom B.M. Rohit as of depositor.

52. Thus, from the evidence of PW1 and PW2, both the accused no.1 and 2 were sent to Superintendent Preventive of Custom, who had deposited the gold Muddamal with PW2. At the relevant time, Shri B.M. Rohit was the Superintendent Preventive.

53. On 14.9.1989, PW2 had made an application Ex.108 to the Magistrate for the goods. On 15.9.1989, Magistrate visited the godown. Inventory Ex.109 was prepared by Magistrate Mr. Mewada. Photographs Page 55 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined in presence of panchas were taken. The packet was opened to have found five gold stripes of different weight, out of that one stripe was removed as sample and placed in another packet and rest of the four were put in the packet and sealed. The witness said that rest of the Muddamal was again deposited in the godown.

54. During the course of the deposition, the seal packet was opened in the Court. In the evidence, the witness deposed that there were no foreign mark or marks on the gold stripes. He further stated that there is no signature of officer Rohit on the application for seizing.

55. The witness stated that he was only Superintendent of godown disposal. He has not received order or notification under Section 2(34) of the Customs Act. He had taken the Muddamal in seal packed condition from Shri Rohit Kumar.

56. In the cross-examination, witness stated that on 9.8.1989, he was not working as Godown Superintendent but was only in-charge. He has denied that he has signed as in-charge godown Page 56 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined keeper on Ex.107.

57. This witness has no information about any order from the Collector. He had not received any written order. He neither have any information of any permission of Mint Master for disposal of Muddamal between 9.8.1989 to 14.8.1989.

58. Here the witness has not received the Muddamal as Superintendent of Godown. The fact is that Shri Rohitkumar is a person who had handed the Muddamal to him but he has not received the same as godown keeper.

59. Rohit Kumar i.e. B.M. Rohit, superintendent Preventive of Custom is the person from whom PW1 received the gist of secret information, wherein no names of accused no.1 and 2 reflected. B.M. Rohit handed over the Muddamal to PW2, who was not the person entitled to receive it. He was not working as Godown Superintendent, B.M. Rohit has not been examined. Nothing is coming on record about the 'proper officer' who had belief that the seized goods were smuggled gold. The reasonable belief must be of the officer who seized the Page 57 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined articles and who is empowered to seize under Section 110 of the Act. Why Mr. B.M. Rohit had gone to deposit the gold at the godown is not coming on record. PW2 had not received any order or notification in terms of Section 2(34) of the Act. There is nothing on record that Shri B.M. Rohit was the gazetted officer specially empowered to have the possession of seized gold, which was liable to confiscation.

60. Section 2(34) of the Custom Act as was prevalent during the course of the present matter reads as under:-

61. Section 2(34) clarifies that the proper officer would be the one who has been assigned function to be performed under the Customs Act by the Board or Collector of Customs. Section 2(8) states that Collector of Customs include an Additional Collector of Customs. Section 2(39) defines smuggling in relation to any goods, means any act Page 58 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Customs Act.

62. Section 111 is with regard to confiscation of improperly imported goods etc. Section 113 is about confiscation of goods attempted to be improperly exported etc.

63. In Union of India v. Abdulkadar Abdulgani Masmani , reported in 1985 CriLJ 329, a judgment by Division Bench of this Court, it has been noted in context of Section 123 of the Customs Act dealing with burden of proof shifting on accused in certain cases, the Division Bench has dealt with the 'officer' who should be considered as 'proper' in terms of Section 2(34) of the Customs Act. The observation of relevant Paragraphs 16 and 25 of the said judgment are as under:-

64. The witness PW3 Naranbhai Bhavanbhai has deposed that on 6.8.1989, he was a gazetted officer. As per his deposition, the Assistant Preventive officer had received an information with regard to Rajendra Natwarlal Shah and Rakesh who were to pass Raipur Darvaja with 5 ingots each of 10 Tolas with foreign marks. The inspectors were deputed for watch and according to him, from one of the accused, 5 stripes were found from the pant pockets. At that time the Assistant Collector was H.K. Thakur. He states that search was done in accordance to the Customs Act in presence of the Panchas and from 5 stripes, samples were taken for examination. The notes were placed on the plastic bags regarding the purity and weight. Thereafter, it was placed in a cardboard and packed with paper and signed by both panchas, accused and custom officer and the box was sealed. The witness deposed about the panchnama Mark B. The witness after perusing the panchnama stated that on 5 gold Page 65 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined stripes, he could read as '9990' and beneath that TEN LAS. According to him, the weight and the value of the stripes were noted in the panchnama and the weight of the stripes were 582.500 mg. and the value was noted as 1,71,837. In cross- examination the witness affirmed that he could see marking only on one strip. He has affirmed that the slip of the panchas as was placed at the time of seizing was not in the box.

65. This witness Naranbhai Bhavanbhai states that on 7.9.1989, he had recorded the statement of Suresh Parekh under Section 108 of the Customs Act. He states that he had recorded statement of Dilip Soni (A3) and Rajendra Soni (A1) and Rakesh Soni (A2) under Section 108 of the Customs Act. The witness has further stated that on 8.8.1989 he had recorded statement of Narendra Soni (A4) under Section 108 of the Customs Act.

66. The statement of Narendra Soni (A-4) at Ex.141 shows that he is having license being a dealer in gold and has also given his registration number. The accused has stated that during 12 months, he Page 66 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined would purchase gold for about 4 to 6 times and would show the sale and purchase with the details of labour charges and labour expenses in his returns. The accused was questioned about 5 gold bars converted into stripes and he was questioned with regard to two gold biscuits and he was confronted with the question whether accused Rakesh on 6.8.1989 had come in the morning to him. The witness in his statement has stated that he does not know Rakesh Soni and has also denied of selling foreign mark gold two biscuits at his house. He has also denied of knowing Rajendra Soni. He categorically stated that he is in the business of sale and purchase of gold ornaments.

67. The statement of accused Rajendra Soni (A-1) at Exh.132 shows that it was recorded on 6.8.1989 and Exh.129 reflects that the statement of Rakesh Soni (A2) was also recorded on 6.8.1989. Statement of Dilip Soni (A3) at Exh.126 reflects that it was recorded on 7.8.1989.

68. Dilip Soni is accused of converting gold bar into gold stripes. He has referred to the gold as gold Page 67 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined biscuits and states that packet was given to him which was in rectangular form of 5 gold biscuits and had taken Rs.25 as labour charge. According to his statement, accused Rakesh and Rajendra had asked him to operate the gold to such an extent that the foreign marks gets totally blurred. According to him, though he had put this gold biscuits into the electric machine one by one for the removal of the marks inspite of that the foreign mark still remained. He was asked to identify accused Rakesh and Rajendra by way of photographs and was also asked at the same time to identify them in person.

69. The retracted statement of Rakesh Soni was placed on record at Exh.103 where he has alleged of illegal detention and mental and physical harassment. Exh.96 is the telegram of advocate dated 7/8 to Assistant Collector Customs to inform that his client Rakesh was illegally detained since 11 a.m. on 6.8.1989 was to be produced at 11 a.m. but till 8.30 p.m., was yet not produced and advocate and family members are not allowed to see him.

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70. The bail application of Rakesh Soni was moved on 7.8.1989 on the very next date of the detention of 6.8.1989 shows that on 6.8.1989 at about 11 a.m., they were detained by the customs officer. Their allegation was that they were beaten and prayed to send for medical treatment in the Civil Hospital and had also stated of signature taken forcibly on the documents.

71. From the evidence of this witness, it becomes clear that the accused were in detention of the custom officer on 6.8.1989 and 7.8.1989. On 7.8.1989, accused no.1 and 2 were made to identify by accused no.3

72. The witness PW3 on 6.8.1989 stated that he was a gazetted officer. Section 108 in the year 1989 permitted any gazetted officer of customs to summon any person whose attendance the said gazetted officer considers necessary either to give evidence or to produce a document or any other thing in an inquiry which such officer is making under the Customs Act . Section 108 refers to power to summon person to give evidence and Page 69 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined sub-section (3) notes that all persons so summoned to give true and correct statement. Issuance of summons for the cause shall give an opportunity to reflect upon. Any statement or evidence thereafter would be on proper evaluation of facts, thus any confessional statement inculpating himself and other co-accused could be relied upon by the prosecution as can be termed as given voluntarily. The statement was recorded on 6.8.1989 of Rajendra Soni and Rakesh Soni. The statement does not record that the statement so recorded were under summons. While the statement of Narendra Soni at Exh.141 recorded on 8.8.1989 categorically notes that he was called upon on summons. Narendra Soni has totally denied of such alleged sale and has also denied of knowing accused no.1 and 2. His statement is not of any confession, it is of total denial. His statement cannot be used against him or co-accused.

73. The witness PW3 has stated that he had not filled DRI form for the weight. He could also state that on examination of Muddamal the mark that could be seen was only on one stripe. The packet was opened Page 70 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined in the Court. According to him, he being a customs officer was present only at the time of seizure but was not present at the time of search at Raipur. According to the witness, M.P. Shah, Patel and Batham had brought the accused before the officer Thakur but he had not read any report in accordance to the order of the officer Thakur. Prior to the search, he was not knowing whether any written order was passed or not. While reading the panchnama Mark B, he stated that it could be read to be noted in the panchnama of 10 Tolas. He denied the suggestion that on 3 ingots 999 and 5 ingots 10 Tolas are inscribed after they were pressed. During the course of panchnama, they had not procured any certificate for the purity of the gold. He has not produced certificate regarding the sample sent to mint. As per the witness on the day when the panchnama was drawn, accused Rakesh and Rajendra were brought apprehended by the inspector. The witness denies the suggestion that on 8.8.1989, Rakesh and Rajendra were not in his custody. Denying so he stated that there is nothing like custody and according to him, on Page 71 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined 8.8.1989, he had called Rakesh and Rajendra by issuing summons. The witness further stated that he had arrested Rakesh and Rajendra on 6th and on 7th, he had called them by issuing summons. The witness has admitted the fact that the statement of Rakesh and Rajendra were recorded on 6th and has also admitted that no statement was recorded on 7th. Section 108 of the Customs Act mandates issuance of summons prior to recording of statement. Accused no.1 and 2 have stated that they were in illegal detention on the date of arrest i.e. 6.8.1989. They alleged that their statements were recorded by subjecting them to physical and mental harassment. The statement on record also fortifies the fact that the statement of accused Rakesh and Rajendra were recorded on 6.8.1989. The very fact of the statement being recorded on the very same day, and absence of any summons on record, clarifies the fact that prior to recording the statement under Section 108 of the Customs Act, no summons was issued to the accused.

74. The witness stated that before the statement were Page 72 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined recorded, the Muddamal was already sealed. It was not reopened while recording the statement there was no microscope in their office on the day of seizure panchnama nor had they brought it on rent, but had sent to forensic laboratory.

75. In case of Abdulkadar Abdulgani Masmani (supra), the Division Bench of this Court has laid down the difference between Sections 107 and 108 to note that the stage of recording of statement under Section 108 arises only when an inquiry started either for confiscation of goods or for imposing penalty. The words used in Section 108 clarifies the same and Section 107 takes care of investigatory emergency.

76. The witness PW3 had made the search in presence of Panchas and according to him, 5 ingots were converted into 5 gold stripes of 24 carats purity. The sample was taken from each of the stripes for assessment of purity in presence of Panchas by sealing process. The same witness who had conducted the seizure is the officer who had recorded the statement under Section 108 of the Page 73 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined Customs Act . The evidence itself suggest that on the date of the arrest, the statement of accused no.1 and 2 came to be recorded. The sequence of events itself speaks that the statement so recorded were not on free will. It is the prosecution who has to prove that the mandate of Section 108 of Customs Act was scrupulously followed.

77. In case of Hasmukh Hargovind Shah (supra), the Bombay High Court has noted about the evidentiary value of the statement made to the custom officer under Section 108 of the Customs Act. The judgment notes that whether the statement was voluntarily made needs careful scrutiny. The Court must also consider possibility of coercion or inducement.

78. In Haroom Haji Abdulla (supra), the Hon'ble Supreme Court had an occasion to observe that the Court should be put on caution while dealing with the statement under Section 108 of the Customs Act insofar as this statement is distinguishable from confession recorded by a Magistrate who is judicial authority and who observes the requisite Page 74 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined precaution while recording such a statement.

79. In Sundeep Mahendrakumar Sanghavi v. Union of India , 2021 (2) GLR 1258, the Division Bench of this court has noted about the constitutional validity of Section 108 of the Customs Act while dealing with various judgments as observed in the judgment in the case of Rajnishkumar Tuli Proprietor v. State of Gujarat , 2007 (4) GLR 2889 and has considered this aspect as noted therein in Paragraph 26 as under:-

80. The confessional statement recorded under Section 108 of the Customs Act should be a voluntary statement. The court is therefore required to consider the possibility of coercion or inducement further to examine corroboration with regard to statement recorded which could distinctly show that the statements were voluntarily given by the accused and under the Customs Act .

81. The prosecution is entitled to rely upon the statement of the accused recorded during the investigation but must prove that the statements recorded were voluntarily given. The statements cannot be procured by way of coercion, assault or illegal detention and in such circumstances, such statement cannot be termed as voluntary. The Page 77 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined confessional statement cannot be made a sole basis for conviction without any corroboration from independent and distinct evidence. The evidence recorded of PW3 does not prove that it was voluntarily given. Without any evidence of summons on record, there is no corroborative evidence to show for what purpose, the accused were asked to give their statement under Section 108 of the Customs Act. All persons who are summoned in accordance with the provision are bound to attend the officer and are bound to state the truth upon the subject respecting to which they are examined or making statement and produce such documents and other things as may be required. Such exercise can only be done on issuance of the summons which would clarify the cause of issuance of summons. Here in this case the statement recorded of accused no.1 and 2 is not preceded by any summons on record. The very detention, and the evidence on record by way of telegrams made by the advocates and the family members of the accused coupled with the fact of the bail application moved itself proves on record that they were in detention of Page 78 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined the officer.

82. Reliance was also placed on the statement of the co-accused for justifying the conviction of the Trial Courts.

83. In Haroom Haji Abdulla (supra), the Hon'ble Supreme Court has noted that Section 30 of the Evidence Act could be applicable only if such statements are given voluntarily. Section 30 of the Evidence Act is for the consideration of the proved confession affecting persons making it and thus jointly under trial for the same offence. The confession of the co-accused are required to be proved to have been voluntarily given for invoking provision of Section 30 of the Evidence Act. The Hon'ble Apex Court has noted in the judgment that the confession entitled to be used against the co- accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination while the former is not. For the retracted confession of the co-accused evaluating the value, the court has observed in Paragraph 11 as under:-

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84. PW4 is the witness who stated that on 6.8.1989, he was serving as an inspector. He was called at about 11 a.m. by the superintendent N.B. Rohit. According to the witness, search proceedings and panchnama was drawn. As per the witness in the cabin of Shri Rohit in presence of panchas, the identification of the accused no.1 and 2 were done and in presence, search was conducted. Nothing objectionable was found from Rakesh (A-2) while 5 stripes of yellow colour was found from the internal pocket of the pant of Rajendra (A-1). The witness states that the panchnama was drawn in presence of Shri Rohit which is placed at Mark B. Page 80 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined The contradiction which comes on record is from this witness and witness no.3 who stated that the seizure was done by him by the panchnama Mark B. While according to this witness, panchnama Mark B was drawn in presence of Shri Rohit. On 7.8.1989, the Assistant Collector Mr. Thakur had called them about 1.30. He was informed by the Collector that the seized packet was to be taken to the FSL and he took the packet to the FSL officer, Ahmedabad where the panchas were called and in presence of K.C. Ibrahim, seizure and examination was done. As per the witness, since nothing could be read with the bare eye and only part could be read and therefore, he asked to file a report. The packet was opened and the stripes were removed in presence and was again repacked and sealed. The report of the laboratory received was placed on the record during the trial at Exh.159. The witness PW4 stated that the sample from each 5 stripes were taken to be sent to the mint.

85. The witness very categorically stated on observing Muddamal gold stripes that the markings could not Page 81 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined be seen with bare eyes. He stated that except drawing the panchnama, he has done no other work. He has reaffirmed that the panchas were present in the office of Shri Rohit and he has no information as to who had called them. The panchnama started from morning 11.30 and ended at 5.30 p.m.

86. PW5 Arvind Virjibhai Soni, panch witness was examined to verify the panchnama Mark A and stated that he has not dictated the panchnama. The officer had not asked them any question nor have noted any answer but had merely taken the signature. The witness was shown the panchnama for refreshing the memory but was not supporting the prosecution and therefore, declared as hostile. In the cross-examination the panch witness has stated that he could not verify as to whether the packet which was shown to him was the one which was registered in godown but has stated in his cross that he was informed that the sample was taken from the gold stripes.

87. PW4 also corroborates the fact that the panchnama Mark B was drawn in presence of Mr. Rohit while Page 82 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined PW3 has given the evidence to the effect that he had drawn panchnama Mark B. Evidence of PW1 and PW2 along with the evidence of PW4 shows that officer B.M. Rohit was continuously present in all the proceedings. That officer has not shown his presence anywhere in the proceedings, though as per the referred evidence he was the officer who was instructing them and directing the whole process.

88. The witness PW5 Joseph Symon D'Cruise, Superintendent Customs Preventive was examined at Exh.191. He states that he was a gazetted officer. According to the evidence, he has recorded statement of K.I. Parihar on 20.11.1989, Manager of Hotel of Ramkrishna K. Jain. The statement was put in evidence at Exh.192. He has also recorded the statement of one Dr. Suryakant Sharma on 12.10.1989 and has also recorded the statement of one inspector S.K. Verma which was produced in evidence at Exh.193. The statement recorded on 9.10.1989 of Anand Jain was put in evidence at Exh.194, statement of Ajgarali Diwan, Manager was recorded on 19.9.1989 and was placed in evidence Page 83 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined at Exh.195 and has also produced in evidence the certificate of Mint Master at Exh.196 to 201. The witness was put to cross-examination for the statement at Exh.197 to 207 and he stated that the certificate does not state of any marks further clarifying the witness stated that it was sent only for the report with regard to purification of the Muddamal. The witness further stated that he has no information since he had not seen Muddamal. The witness further stated that the seizure work can be done by Shri Rohit. He stated that as and when he received the documents for the investigation, he had submitted it to Mr. Amin. He stated that he knew that the complaint was already registered on his investigation and the seizure. He stated that there was an oral instruction from Mr. Amin to continue the investigation.

89. He was given oral instructions with respect to Mahesh Kantilal Soni (A-5) to verify whether actually he was out of station or not. According to the witness, he had not made any report in context with Mahesh Soni who has been discharged in the present matter. Except the documents with Page 84 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined regard to hotel, he had not received any other documents from Shri Amin in connection with the complaint. As per him he has recorded the statement of accused no.5 Mahesh Soni. Apart from that he has not made any further investigation. The mint master certificate was received by the Assistant Collector Customs but the witness does not recollect the name of the Assistant Customs Collector. Referring to the record, he stated that it was Shri Amin. He was not present when the seal cover received from the mint master was opened by Mr. Amin. His investigation was only concentrated with regard to the accused Mahesh Soni. He has denied the suggestion that he and only Shri Rohit has done the investigation with regard to seizure. He has shown his ignorance of any investigation by any other officer. Thus, this witness was examined only for the investigation in connection with the discharge accused Mahesh Soni and for the fact of receiving the mint master certificate, but witness does not have knowledge of the content of the certificate. The allegation of purchasing 3 gold bars from Mahesh Soni thus does not get Page 85 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined corroborated and proved. The prosecution has to prove not only the adoption of process and procedure as per law but has also to prove that the gold bar alleged are smuggled goods liable to be confiscated under Section 111 or Section 113 of the Act.

90. The accused no.4 Narendra Soni's statement was recorded under Section 108 of the Customs Act by issuing the summons. Accused Narendra Soni has stated that he was holding a license under the Gold Control Act . He has denied of knowing accused no.1 and 2 and has even denied of any sale of two gold biscuits to accused no.2 Rakesh Soni. The witness stated that he regularly files his return with regard to sale and purchase of gold. Section 34 of the Gold Control Act provides the sale or delivery of gold by a licensed dealer or certified goldsmith. Section 34 reads as under:-

91. The sale or delivery of the goods by license Page 87 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined dealer is permissible in the form of standard gold bars. Section 19 deals with the standard gold bar to be stamped. Section 19 is reproduced hereunder:-

section (1) shall be used in stamping any standard gold bar unless such stamp has been approved by the Administrator."

92. Section 21 deals with the sale or delivery of goods by a refiner. The said section reads as under:-

93. This section thus refers that licence refiner and licence dealer or certified goldsmith can deal with the gold by way of sale or transfer in the form of standard gold bars. The restriction is thus on the sale of primary gold by licence dealer to any other licence dealer or to any other goldsmith. Such transfer can only be in the form of standard gold bars. Primary gold is defined under Section 2(r) , which reads as under:-

94. While the gold is defined under Section 2(j) as under:-

95. As per the statement noted of accused no.2, he is running a firm known as M/s. Nainesh Chandulal Soni while accused no.1 was having a firm in his own name.

96. The witness PW7 Bharat Kapilray Mistri, FSL Officer, Ahmedabad who was serving at Ahmedabad on 7.8.1989 states that at that time, the Assistant Director was Dr. K.C. Abraham. 5 stripes were given for the examination from Assistant Customs Collector Preventive. Abraham had given him to examine whether the writing on the stripes were readable and what was the writing. He had weighed all the 5 stripes. The witness had given the weight of all the individual stripes in his evidence. According to him, to read the writing on the stripes, he had used stereo microscope and grazing incident lite and under the microscope, could read the design and in the report, he has shown the shape of the design and below each shape, he has put his signature. The writing which Page 90 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined he could read has been shown in the report and as per this witness, he could read on each stripes 9990 and which he says that it shows the purity of the gold and further he could read SYJSSE and further states that he could read 10 Tolas on the Muddamal. In the cross-examination, the witness had answered that he doesn't know whether on foreign gold 'Tolas' would not be inscribed and that practice of Tolas is only in India. The witness stated that he himself had examined Muddamal under stereo microscope. He states that he has the letter which was sent for examination asking for a report, but does not remember whether there was any clarification for not forwarding it to mint, nor could say that since it cannot be tested at central laboratory and therefore, it was sent to them. The deposition of this witness clarifies that the Muddamal which was seized did bear the mark of 'Tola'. The fact of foreign mark on the gold could not be proved by this witness.

97. Another witness Somalal Maganlal Patel who is in the business of gold and silver was examined as Page 91 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined PW8 who was called to prove Mark B. The panchnama was put in evidence only to the extent of his signature. At Exh.327 he has denied all the suggestions put by the Public Prosecutor after he was declared hostile.

98. Ex.159 dated 8.8.1989 is a report of the FSL, Ahmedabad. On examining one sealed parcel bearing seal of the Collector (EXM CUS), Ahmedabad, the report says that the parcel contains 5 stripes (Pattas) of Mark as 1 to 5 and observed the markings on stripe no.1 in a round circle as 'CPEDI 9990 SU SSE 10 U_AS' and in stripe no.2, within the round circle 'CPEDI 9990 SUISSE 10 | U_AS'. In stripe no.3, within the round circle 'CPEDIT 9990 SUISSE 10 |O_AS. In stripe no.4, within the round circle 'CPEDI 9990 SU SSE 10 O_AS and in stripe no.5, within the round circle, 'CPEDI 9990 10 O_AS' have been noted.

99. While the Indian Government Mint, Bombay report dated 3.9.1989 from Ex.197 to 201 records the finest of the sample as 998.8, 998.9, 999.0, 999.1, 999.0 respectively.

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100. The statement recorded of the accused does not appear to be voluntarily given. The prosecution has failed to produce summons if any issued to the accused. The facts of the case itself suggest that there would not have been any issuance of summons by the authorized officer as contemplated under Section 108 of the Customs Act since the statement of accused no.1 and 2 were recorded on the very same day i.e. 6.6.1989. Accused no.3 Dilip Soni's statement would also bear no importance as the prosecution has also failed to prove that he was called by summons for the recording of the statement. The statement of Dilip Soni recorded on 7.8.1989 notes that he was given the understanding regarding the provision of Section 193 of the Customs Act but the statement does not record any issuance of summons, as has been noted in the statement of accused no.4 Narendra Soni. There were identification of accused no.1 and accused no.2, but no identification of the gold stripes were done. The identification of the stripes could have clarified the conversion from bars to stripes and further the identification of the marks by Page 93 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined accused no.3 could have supported the FSL report and mint report. Accused no.3 is shown to be a labourer at Parekh Jewelers. The owner of Parekh Jewelers has not been examined in the present case to even corroborate the voluntariness of the statement of this accused.

101. Section 5 of the Customs Act provides about the powers to be exercised and about discharge of the duties, such powers are to be exercised or duties to be discharged as conferred or imposed under the Act, but it is subject to the conditions and limitations imposed by the Board.

102. Section 123 of the Act is about the burden of proof. The Section requires a mention, which reads thus:-

103. In Abdulkadar Abdulgani Masmani & Ors. etc. (supra), it has been held that Section 123 of the Act shifts the burden on the accused to prove the goods are not smuggled goods only when the goods are seized under the Act in the reasonable belief that they are smuggled goods. The reasonable belief must be of the officer who seized the articles and who is authorised to seize. It is the proper officer who can seize must have reason to believe that goods are liable to confiscation under the Act.

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104. Here in the instant case, the three police officials who intercepted accused no.1 and 2 at Raipur Darwaja whether had any power to stop and search the scooter has not been proved. Section 106 of the Customs Act gives such power to stop and search the vehicle only to proper officer. The interception of vehicle and accused no.1 and 2 at Raipur Darwaja was not by authorised officer. Section 100 of the Customs Act also gives power to only proper officer to search suspected persons when the proper officer has reason to believe that the person has secreted about his person, any goods liable to confiscation.

105. There is no panchnama drawn at Raipur Darwaja. The accused no.1 and 2 were taken at the Custom Office at Navrangpura. PW1 the complainant was at the post of Assistant Custom Collector (Preventive). According to his evidence, on 6.8.1989, he had received the information. The information in writing had come to his officer and sealed cover was sent to him. As per his evidence, it was gist of information and after recording about the Page 96 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined summary on that day itself, he returned the page to the Superintendent Preventive. The witness does not know who was the Superintendent Preventive on that day. The witness says that in the gist of the information, there were no name of the two persons. He had named both the accused from the record.

106. This witness had sent both the accused no.1 and 2 to Superintendent Preventive. Both the accused were brought before him by one M.B.Shah and another person whose name the witness does not remember. He had not even inquired why they were brought nor knows about the panchnama.

107. In this set of facts and events, it appears that this witness has not given facts which he was bound to know. The accused were not named in the secret information. The witness does not know the name of the Superintendent Preventive to whom he had forwarded both the accused. His evidence clarifies that the complaint on 16.9.1989 did not make mint officer report as part which was received on 25.10.1989. The scientific evidence Page 97 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined about the gold seized was not available on record on the date of complaint.

108. The witness PW2 stated that entry no.4/135/89 in Ex.107 godown register was entered on that day. He affirmed that Ex.107 does not bear description of the State of the packet and what was there on the packet when given to him by Rohit.

109. The Muddamal was opened in the court during the course of evidence of PW2. He deposed that after 15.9.1989, the packet was opened for the first time. He further stated that from 9.8.1989 to 15.9.1989, the packet was never opened. On 15.9.1989, the packet was sealed. He stated that the newspaper on the packet was placed on 15.9.1989. He has no idea about the newspaper of December, 1989. As recorded earlier on 14.9.1989, this witness had made an application Ex.108 to the Magistrate. On 15.9.1989, Magistrate visited the godown, inventory Ex.109 was prepared. Photographs were taken. Packets found five gold stripes and sample was taken.

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110. The witness Pravin Mevada PW6 is the person who was serving as Circle Officer, Sarkhej and Executive Magistrate City Mamlatdar office on 14.9.1989. He states that at that time, the Customs Department, Ahmedabad for disposal used to often call him, on 14.9.1989, he received application no.22/89 from Customs Superintendent for the disbursement of the Muddamal as well as for taking the samples. He had gone on 15.9.1989 where customs officer Shri Trivedi produced inventory Ex.109. He has referred to the inventory which was done regarding the sample and according to him, out of 5 stripes, one stripe was taken as a sample. Mark 'A' panchnama was shown to the witness which was on the record in carbon copy format. The witness states that he could not say as to where the original is. The inventory Exh.109 was prepared by the Customs Department, and according to him, he himself had not made any examination with regard to value and weight of the Muddamal. The witness in his deposition has stated about the process adopted, but could not state the name of the officer of the Custom Department who Page 99 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined had seized Muddamal. According to him, seizure officer was not present at that time. He could not verify the signature on the photographs. Below Ex.108, he could assume the signature of Shri Trivedi who is PW2.

111. Vinubhai Chandubhai Parmar PW9 is Customs Superintendent of godown headquarters, he was serving since 15.7.1989 and according to him, the Muddamal which was seized during the raid and sealed packet was deposited in the custom godown and was noted at page 28 of the register as V/135/89 on 9.8.1989. The register was brought by him in the court and referring to the register, he stated that one gold stripe was shown as 103.800 gms and the sample Muddamal was shown as 50.900 milligram which he states that it was deposited with the Government mint for examination for which there is an entry as V/88/90 on page 5 dated 3.4.1990 whose receipt no.1363 was received on 30.3.1990.

112. The witness PW10 Arvind Mori was working as a Custom Inspector Preventive Branch in 1989, he had Page 100 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined undertaken the work of taking the sample from the godown to the mint at Mumbai. He had taken the Muddamal and got it deposited on 30.3.1990. He has produced the original report of Mint Ex.197 to 201.

113. The officer who had conducted the search was required to prove that he had general or special order of the Collector of Custom; and seizure of the smuggled gold must be by a proper officer, who has been assigned those functions by Board of the Collector of Customs.

114. In the case of Nathu v. State of Uttar Pradesh , AIR 1956 SC 56 : 1956 CrLJ 152, it is observed by Hon'ble Supreme Court with regard to confessions that the prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp it as involuntary. PW3 has offered no explanation for keeping the accused in prolonged custody.

115. In Nathu (supra), it has been noted in Paragraph 6 as under:-

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116. In the case of Asst Collector of Customs, Baroda & Anr. v. Mukbujusein Ibrahim Pirjada , 1969 (10) GLR 692 : 1970 CriLJ 1305, it has been held that in order to attract the presumption under Section 123 of the Customs Act, the goods must be shown to have been seized from the possession of the accused by the customs officers. Section 110 of the Customs Act contemplates seizure of goods liable to confiscation only by the proper officer as defined under Section 2(34) of the Act. PW3 failed to prove that he was competent to seize the alleged gold.

117. In Mukbujusein Ibrahim Pirjada (supra), it was observed as under:-

118. Statement of accused no.1 and 2 cannot be termed as voluntarily, given in wake of no explanation by the gazetted officer for keeping them in prolonged custody. The telegram referred hereinabove reflects the fact of detention. The seizure was for confiscation of gold then the gazetted officer prior to recording of statement under Section 108 of the Customs Act was required to issue summons.

119. Learned advocate Mr. Soni referring to the certificates issued by the FSL, Gandhinagar and Mint Bombay submitted that the symbol as noted by the FSL, Bombay would reflect that it stated of 9990 while the sample examined by the Mint Bombay does not correspond. He further submitted that the FSL report also reflects about some figures which could be read as 10 Tolas. Mr. Soni thus stated that this contradiction regarding the original Page 103 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined gold alleged to be seized from the accused have not been clarified by the prosecution.

120. The case of the prosecution is that 3 of the gold bars were purchased from discharged accused Mahesh Kantilal Soni, while 2 gold bars were purchased from accused no.4 Narendra Kantilal Soni. The prosecution could not prove whether accused no.2 had actually purchased 3 gold bars from discharge accused Mahesh Kantilal Soni. Further, accused no.4 in his statement before the custom officer has denied of selling any such gold bars to accused no.2. The origin of the alleged gold bars could not be proved by the prosecution. The facts also does not get proved that any such purchase was made from discharged Accused Mahesh Kantilal Soni. The witness PW5 Joseph D'Cruize, Superintendent Custom Preventive he though had recorded statements of various persons, could not find any connection with respect to discharged accused Mahesh Kantilal Soni, even after the registration of the complaint, he continued with his investigation on oral instructions. This very fact also proves that on the date of the Page 104 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined complaint, the prosecution could not find the link of accused no.2 with discharge accused no.5.

121. Even the statement of accused no.4 recorded under Section 108 of the Customs Act which was recorded after the issuance of summons does not disclose any connection with the sale. It has been reported that accused no.4 and 5 though they bear a common surname with common father's name, but they are not related to each other. The accused no.4 in his statement has stated that he fails to understand as to how his name has been given by accused no.2 while he holds the license for the sale and purchase of gold ornaments. The prosecution was required to further examine through the evidence of the accused no.4 with regard to the sale of that two gold bars to show its procurement. The accused no.4 is a license holder and thus, would have been maintaining the books as per the Act . The illegal purchase of foreign mark gold as a smuggled gold could have been proved by further investigation. Further 5 gold bars which has been converted into stripes as per the FSL report of Gandhinagar bears same symbol. The marking shows Page 105 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined 9990 and as suggested and on perusal, the report marks figures which can be read as 10 Tolas with almost some mark as CPEDI and SUISSE.

122. The statement of accused Dilip Vanaji Soni is only to the fact that accused no.1 and 2 had come to the shop and had asked him to convert the bar into stripes to an extent that the marks would not be visible, but the Muddamal was not identified by him. Whether the seized articles were the same which he had operated were to be verified. The evidence of the witnesses do not corroborate to the statement of the accused. Non-examining of officer B.M. Rohit - Superintendent Preventive of Custom cast a doubt on the fairness of proceeding. The initial burden under Section 123 of the Customs Act has not been proved to shift it to the accused. The place and source of secret information though are not to be disclosed but from PW1 - complainant's evidence, it transpires that the gist of information received did not reflect the name of accused no.1 and 2. The officers stated to have intercepted the accused were not examined to give evidence of their Page 106 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined apprehension at Raipur Darwaja. The accused were taken to Shri B.M. Rohit; the delay in the process of drawing the panchnama has also not been explained. The seizure panchnama and the statement alleged to be recorded under Section 108 of the Customs Act is recorded by one officer PW3. Section 108 permits any gazetted officer to record statement, but the seizure of goods must be by a 'proper officer' as defined under Section 2(34) of the Customs Act.

123. The conviction based on statement considering as voluntarily is bad in law. The statement recorded was during long detention before the custom officer. Those statements were not recorded under free atmosphere, by way of serving summons to those person apprehended. The arrest was prior to the complaint. The arrest was on 6.8.1989, while the complaint was on 16.9.1989. The prosecution has also failed to prove the gold as smuggled gold. The statement of the accused were not proved to have been recorded under their free will. The statements gets vitiated under Section 24 of the Evidence Act and hence, cannot be relied upon in Page 107 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Oct 09 2024 Downloaded on : Sat Oct 12 21:43:29 IST 2024 NEUTRAL CITATION R/CR.RA/88/2005 JUDGMENT DATED: 18/09/2024 undefined the criminal proceeding.

124. Thus, on the observation and appreciation of the evidence to the reason stated hereinabove, the conviction is bad in law, and suffers from illegality, thus requires to be set aside.

125. In the result, the judgment and order of conviction and sentence dated 19.6.2002 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case no.538 of 1989 and the judgment in Criminal Appeal no.32 of 2002 are quashed and set aside. Thus, the present revisionists are acquitted. Record and proceedings be sent back to the concerned Court.

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