# K.I. PA VUNNY v. ASSISTANT COLLECTOR (HEAD QUARTER), CENTRAL EXCISE COLLECTORATE, COCHIN

- **Citation:** [1997] 1 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 1997-02-03
- **Case number:** Criminal Appeal No. 543 of 1988
- **Bench:** K. Ramaswamy, S. Saghir Ahmad, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-i-pa-vunny-v-assistant-collector-head-quarter-central-excise-collectorate-15278
- **Pages:** 33

## Headnote

Customs Act, 1962: Section 108.
Person suspected by a Customs Officer/authority of having committed
an offence under the Act-Status of-:-Held: such a person was not an accused
A
B
c
at that stage-He became an accused only when summons were issued by a
competent Court/Magistrate when a complaint was lodged by competent
Customs Officer-Hence, his statement recorded during an inquiry under
S,108 or d:Jring confiscation proceedings was not that of an accused withir, D
the meaning of 5.24 of the Evidence Act-Evidence Act, 1872, S.24.
Person suspected of having committed an offence under the Act-Confessional statement-Recorded by-<:ustoms Officer-Status of such Officer
and admissibility of such statement in evidence-Held: Such an Officer,
though not a Police Officer, was an authority within the meaning of S. 24 of
the Evidence Act-However, a confessional statement recorded by reason of
statutory compulsion or given voluntarily by the accused pursuant to his
appearing after summons or on surrender, could not be characterised to have
been obtained by threat, inducement or promise-Hence, such confessional
statement was admissible in evidence-such confessional statement although
subsequently retracted, if found voluntary and truthful, could f omi basis for
conviction-lt was not necessary that each detail in the retracted conj ession
be corroborated by independent evidence-However, prudence and practice
required that court would seek assurance from other evidence to corroborate
the retracted confession-Evidence Act, 1872, Ss. 24 to 30.
Statement-Object of recording-Stated.
-J
Section 135-0ffence-Jnvolving gold biscuits which were subsequently
E
F
G
confiscated proved--f'enalty-Fine of Rs.10,000 and Rs.5,000 respectively
imposed by Supreme Court in substitution of sentence of imprisonment for 1 H
797
798
SUPREME COURT REPORTS
~
[1997) 1 S.C.R. \
A year/six months-Further direction for 2 months' and 1 month imprisonment
in case of default issued.
Evidence Act, 1872: Section 24.
Confessions caused by inducement, threat or promise-Held: confesB sional statement given under statutory compulsion or after issuance of summons or after sun-ender, amounted to confession.
Sections 24, 30 and 101-106-Use of threat, inducement or
promise-Alleged-Held: burden of proof was on accused, though it was not
c
as high as on the prosecution-Further, once the accused was able to prove
the facts creating reasonable doubt that the confession was not voluntary or
was obtained by threat, coercion or inducement, the burden would be on the
prosecution to prove that the confession was made voluntarily.
Crimin al Law:
D
Mens rea--Whether an essel!tial ingredient of the offence under s.135
of the Customs Act or Ss. 85 and 86 of Gold (Control) Act-Question left
open-Customs Act, 1962, S.135--<Jold (Control) Act, 1968, Ss. 85 and 86.
Criminal Procedure Code, 1973: Section 386.
E
Reasons-For disagreeing with trial court-Recording of-By Appellate
Court-Held: to be given only in respect of relevant aspects and not necessarily
on eve1y aspect.
Section 24-Central agency-Sensitive cases under Customs Act, Gold
F
(Control) Act and such other Act~Assignment of-By Union of
India-Held: Such cases should be assigned only to counsel having experience
and ability in that branch of law to defend their cases so that public justice
might not suffer and economy of country not put in jeopardy-Constitution
of India, 1950, A1ts. 134 and 136-Customs Act, 1962, S.135--<Jold (Control)
Act, 1948, Ss. 85(1)(a) and 86.
G
Practice and Procedure:
Constitution of India, 1950: Articles 136 and 141.
Concession-Wrong concession by party-on question of law-Held:
H not binding on Supreme Court-Customs Act, 1962, S.130E.
_..
'
""'
......
....
:,-
-
PA VUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C.
799
Words and Phrases:
"Accused''-Meaning of-In the context of S.24 of the Evidence Act,
1872.
The appellant was acquitted of the charges under Section 135(l)(j)
of the Customs Act, 1962 and Sections 85(1)(a) and 86

## Text

_Characters 0–39,930 of 84,164. This is a partial read: ask again with offset=39930 for what follows._

K.I. PA VUNNY
v.
ASSISTANT COLLECTOR (HEAD QUARTER),
CENTRAL EXCISE COLLECTORATE, COCHIN
FEBRUARY 3, 1997
{K. RAMASWAMY, S. SAGHIR AHMAD AND
G.B. PATTANAIK, JJ.)
Customs Act, 1962: Section 108.
Person suspected by a Customs Officer/authority of having committed
an offence under the Act-Status of-:-Held: such a person was not an accused
A
B
c
at that stage-He became an accused only when summons were issued by a
competent Court/Magistrate when a complaint was lodged by competent
Customs Officer-Hence, his statement recorded during an inquiry under
S,108 or d:Jring confiscation proceedings was not that of an accused withir, D
the meaning of 5.24 of the Evidence Act-Evidence Act, 1872, S.24.
Person suspected of having committed an offence under the Act-Confessional statement-Recorded by-<:ustoms Officer-Status of such Officer
and admissibility of such statement in evidence-Held: Such an Officer,
though not a Police Officer, was an authority within the meaning of S. 24 of
the Evidence Act-However, a confessional statement recorded by reason of
statutory compulsion or given voluntarily by the accused pursuant to his
appearing after summons or on surrender, could not be characterised to have
been obtained by threat, inducement or promise-Hence, such confessional
statement was admissible in evidence-such confessional statement although
subsequently retracted, if found voluntary and truthful, could f omi basis for
conviction-lt was not necessary that each detail in the retracted conj ession
be corroborated by independent evidence-However, prudence and practice
required that court would seek assurance from other evidence to corroborate
the retracted confession-Evidence Act, 1872, Ss. 24 to 30.
Statement-Object of recording-Stated.
-J
Section 135-0ffence-Jnvolving gold biscuits which were subsequently
E
F
G
confiscated proved--f'enalty-Fine of Rs.10,000 and Rs.5,000 respectively
imposed by Supreme Court in substitution of sentence of imprisonment for 1 H
797
798
SUPREME COURT REPORTS
~
[1997) 1 S.C.R. \
A year/six months-Further direction for 2 months' and 1 month imprisonment
in case of default issued.
Evidence Act, 1872: Section 24.
Confessions caused by inducement, threat or promise-Held: confesB sional statement given under statutory compulsion or after issuance of summons or after sun-ender, amounted to confession.
Sections 24, 30 and 101-106-Use of threat, inducement or
promise-Alleged-Held: burden of proof was on accused, though it was not
c
as high as on the prosecution-Further, once the accused was able to prove
the facts creating reasonable doubt that the confession was not voluntary or
was obtained by threat, coercion or inducement, the burden would be on the
prosecution to prove that the confession was made voluntarily.
Crimin al Law:
D
Mens rea--Whether an essel!tial ingredient of the offence under s.135
of the Customs Act or Ss. 85 and 86 of Gold (Control) Act-Question left
open-Customs Act, 1962, S.135--<Jold (Control) Act, 1968, Ss. 85 and 86.
Criminal Procedure Code, 1973: Section 386.
E
Reasons-For disagreeing with trial court-Recording of-By Appellate
Court-Held: to be given only in respect of relevant aspects and not necessarily
on eve1y aspect.
Section 24-Central agency-Sensitive cases under Customs Act, Gold
F
(Control) Act and such other Act~Assignment of-By Union of
India-Held: Such cases should be assigned only to counsel having experience
and ability in that branch of law to defend their cases so that public justice
might not suffer and economy of country not put in jeopardy-Constitution
of India, 1950, A1ts. 134 and 136-Customs Act, 1962, S.135--<Jold (Control)
Act, 1948, Ss. 85(1)(a) and 86.
G
Practice and Procedure:
Constitution of India, 1950: Articles 136 and 141.
Concession-Wrong concession by party-on question of law-Held:
H not binding on Supreme Court-Customs Act, 1962, S.130E.
_..
'
""'
......
....
:,-
-
PA VUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C.
799
Words and Phrases:
"Accused''-Meaning of-In the context of S.24 of the Evidence Act,
1872.
The appellant was acquitted of the charges under Section 135(l)(j)
of the Customs Act, 1962 and Sections 85(1)(a) and 86 of the Gold
(Control) Act, 1968, but a Single Judge of the High Court set aside the
acquittal and convicted the appellant of the aforesaid offences and sentenced him to undergo imprisonment for a period of 1 year and 6 months
respectively. Hence this appeal.
According to the prosecution, Gold biscuits of foreign marking were
recovered from the compound of the appellant's house in the presence of
the appellant and two panch witnesses, PW-3 and another, after digging
A
B
c
got done by two Customs officials, PW- 2 and PW-5. The gold biscuits were
kept concealed in a wooden box buried in the ground visible through the
window of the appellant's bedroom. The appellant gave, i.n bis own handD
· writing, a confessional statement on the same day before the Customs
officials. In the proceedings for confiscation, the gold biscuits were confiscated. But the imposition of penalty was set aside. Thereafter, a complaint
was .filed by PW-I, the Collector of Customs, and the same was refiled. The
appellant was apprehended and was released on bail. The prosecution case E
hinged upon the retracted confessional statement of the appellant, the
recovery proceedings and evidence of witnesses, PWs 1 to 5 for proof of
recovery of the contraband from the compound of the appellant's house.
The question before this Court, pursuant to a reference from a
two-Judge Bench, was whether the confessional statement of the appellant F
given to the Customs Officers under Section 108 of the Customs Act, 1962,
though retracted at a later stage, was admissible in evidence and could
form the basis of conviction and whether a retracted confessional statement required corroboration on material particulars from independent
evidence.
G
Allowing the appeal in part, this Court
HELD: 1.1. Customs Officer is not a police officer; nor is he empowered to file charge-sheet under Section 173 of the Criminal Procedure
Code, 1973 though he conducts enquiry akin to an investigation under H
..
800
SUPREME COURT REPORTS
(1997] 1 S.C.R.
A some of the provisions of the Code. His acts are in the nature of civil
proceedings for collecting evidence to take further action to adjudicate the
infringement of the Customs Act, 1962 and for imposition of penalty
prescribed thereunder which would be self evident from Section 108(4) of
the Act. [811-E]
B
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461,
followed.
1.2. The object of the Act empowering Custonis Officers to record
the evidence under Section 108 is to collect information of the contravene tion of the provisions of the Act or concealment of the contraband or
avoidance of the duty of excise so as to enable them to collect the evidence
of the proof of contravention of the proceedings for further action of
confiscation of the contraband or imposition of the penalty under the Act
etc. By virtue of authority of law, the officer exercising the powers under
the Act is an authority within the meaning of Section 24 of the Evidence
D Act, 1872. [818-D]
1.3. Though the authority/officer on suspecting a person of having
committed the crime under the Act can record his statement, such a person
per force is not a person accused under the Act. The appellant was not a
E person accused of the offence under the Act when he gave his statement
under Section 108 of the Act in the office of the Superintendent of Customs,
PW-2. The assumption that the appellant was an accused on the date is
erroneous, since as on that date no formal complaint had been laid against
the appellant. Therefore, a statement recorded or given by the person
suspected of having committed an offence during the inquiry under Section
F 108 of the Act or during confiscation proceedings is not a person accused of
the offence within themeaning ofSection24 of the Evidence Act. [818-F-G]
G
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
and lllias v. Collector of Customs, Madras, [1969] 2 SCR 613, followed.
2.1. A person whose statement, on being suspected by the
authority/officer of having committed an offence, is recorded by that
authority/officer, becomes accused of the offence under the Act only when
a complaint is laid by the competent Customs Officer in the Court of
competent jurisdiction or Magistrate to take cognizance of the offence and
H summons are issued. Thereafter, he becomes a person accused ·of the
..
~
PAVUNNYv. ASS1T. COLLECTOR, (H.Q.) C.E.C.
801
offence. [818-F)
Maqbool Hussai11 v. State of Bombay, [1953) SCR 730 and Thomas
Da11a v. State of Pu11jab, [1959) Supp. 1 SCR 274 followed.
Veera Ibrahim v. State of Maharashtra, [1976) 2 SCC 302 and State of
A
Pu11jab v. Barkat Ram, [1962) 3 SCR 338, relied on.
B
2.2. Though the Customs Officer is an authority within the meaning
of Section 24 of the Evidence Act, by reason of statutory compulsion of
recording the statement or the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the
appellant's surrender, such statement cannot be characterised to have
been obtained by threat, inducement or promise. [818-H]
2.3. While giving a confessional statement under Section 108 of the
Act, the appellant was under a legal duty .to state the facts truthfully lest
c
he would be liable to prosecution. The threat emanates from and is that D
of the statute and the officers merely enforced the law;
Percy Rustomji Basta v. State of Maharashtra, AIR 1971 SC 1087,
relied on.
Vallabhdas Liladhar v.Asst. Collector of Customs, [1965) 3 SCR 854, E
referred to.
3.1. The contention of the appellant that fairness of judicial process
requires that such statements given by the accused should be strictly,
meticulously and minutely scrutinised as they emanate at the threat of
persons in authority and are inadmissible in evidence under Section 24 of F
the Evidence Act, does not merit acceptance for the reason that the
primary object of enquiry under the Act is to initiate proceedings for
confiscation of the contraband and collection of excise duty and the
persons acquainted with the facts are duty bound to speak the truth or to
give statement truthfully upon the subject respecting which the person is G
examined or made statement at the pain of prosecution for perjury or
produce such document or other things. In the light of the legislative policy
the question of unfairness or untrustworthiness of process does not arise
and such a plea cannot be given countenance or acceptance. [817-E-G]
Poolpa11di v; Superi11te11de114 Ce11tral Excise a11d Ors., [1992] 3 SCR H
802
SUPREME COURT REPORTS
[ 1997] 1 s. C.R.
A 247, relied on.
Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
and lllias v. Collector of Customs, [1969] 2 SCR 613, referred to.
3.2. The collection of evidence under Section 108 and other relevant
B provisions relating to search and seizure are only for the purpose of taking
further steps for confiscation of contraband and imposition of penalty. The
self same evidence is admissible in evidence on the complaint laid by the
c
Customs Officer for prosecution under Section 135 or other relevant
_..
statutes. [819-A]
3.3. There is no prohibition under the Evidence Act to rely upon the
retracted confession to prove the prosecution case or to mdke the same
basis for conviction of the accused. The practice and prudence require that
the Court could examine the evidence adduced by the prosecution to find
out whether there are any other facts and circumstances to corroborate
D the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to
corroborate each detail contained in the confessional statement. The Court
is required to examine whether the confessional statement is voluntary;
whether it was not obtained by threat, duress or promise, If the Court is
E satisfied from the evidence that it was voluntary, then it is required to
examine whether the statement is true. If the court on examination of the
evidence finds th;;t the retracted confession is true, that part of the
incnlpatory portion could be relied upon to base conviction. However, the
prudence and practice require that Court would seek assurance getting
corroboration from other evidence adduced by the prosecution. On the
F facts and in the circumstances of the case, the High Court was right in its
conclusion that the statement of the appellant recorded under Section 108
of the Customs Act was voluntary statement and was not influenced by
threat, duress or inducement etc. [823~E-H]
G
Nishi Kant Iha v. State of Bihar, [1969] 1 SCC 347 and Balbir Singh
v. State of Punjab, AIR (1957) SC 216 followed.
Bhagwan Singh v. State of Punjab, AIR SC 2145; Hem Raj v. State of
Ajmer, [1954] SCR 1133; Girdhari Lal Gupta & Am: v. D.N. Mehta, Asst.
Collector of Customs & Anr., [1970] 2 SCC 530; Naresh !. Sukhawani v.
H Union of India, [1995] Supp. 4 SCC 663 and Swjeet Singh Chhabra v. Union
...
-
PAVUNNYv. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.]
803
of India, (1997) 89 ELT 464, relied on.
Chandrakant Chimanlal Desai v. State of Gujarat, [1992] 1 SCC 473;
Harcharan Kunni & logia Hajam v. State of Bihar, AIR (1964) SC 1184;
Hamam Haj Abdulla v. State of Maharashtra, AIR 1968 SC 832° and Kashmira Singh v. State of M.P., AIR 1952 SC 159, referred to.
State of U.P. v. Deoman Upadhyaya, [1961] 1 SCR 14; Satbir Singh &
Anr. v. State of Punjab, [1977] 3 SCR 195 and Sevantilal Karsondas Modi
v. State of Maharashtra & Anr., [1979] 2 SCR 1160, held inapplicable.
A
B
4.1. It is true that in a trial and proprio vigore in a criminal trial, C
courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist
of direct evidence, confession or circumstantial evidence. In a criminal
trial punishable under the provisions of the IPC it is well settled legal
position that confession can form the sole basis for conviction. If it is
retracted, it must first be tested whether confession is voluntary and D
truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30
of the Evidence Act, and Section 164 of the Code. It is an admission against
the maker of it, unless its admissibility is excluded by some-of those
provisions. [820-E-G]
E
4.2. If a confession is proved by unimpeachable evidence and if it is of
a voluntary nature, it, when retracted, is entitled to a high degree of value as
its maker is likely to face the consequences of confession by a statement
affecting his life, liberty or property. Burden is on the accused to prove that
the statement was obtained by threat, duress or promise like any other F
person. If it is established from the record or circumstances that the
confession is shrouded with suspicious features, then it falls in the realm of
doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove tJle facts creating reasonable doubt that
the confession was not voluntary or it was obtained by threat, coercion or G
inducement etc., the burden would be on the prosecution to prove that the
confession was made by the accused voluntarily. [820-H, 821·A·B]
Bhagwan Singh v. State of Punjab, AIR (1952) SC 214, followed.
5.1. It is not necessary in this case to broach further whether mens H
804
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A rea is an essential ingredient for proving the commission of the offence
under Section 135 of the Act or Sections 85 and 86 of the Gold (Control)
Act since none has raised such contention. What is required to be considered is whether voluntary statement given by the appellant constitutes
sole basis to prove the commission of the offence under Section 135(1)(j)
B of the Act. [826-D]
State of .Gujarat & Anr. v. Acharya D. Pandey & Ors., [1970] 3 SCC
183 and Director of Enforcement v. M.C. T.M. Corporation Pvt. Ltd. & Ors.,
[1996] 2 sec 471, referred to.
C
5.2. It is true that in criminal law, as also in civil suits, the trial Court ·
_ and the appellate Court should marshal the ·facts and reach conclusion,
on facts. In a criminal case, the prosecution has to prove the guilt beyond
doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt
of a doubting Thomas or of a weak mind is not the road to reach the result.
D If a Judge on objective evaluation of finding that the prosecution has not
proved its case beyonda reasonable doubt, then the accused is entitled to
the benefit of doubt for acquittal. On scanning the evidence and going
through the reasoning of the Single Judge it has to be held that the Single
Judge was right in accepting the confessional statement of the appellant
to be a voluntary one and that it could form the basis for conviction. The
E Magistrate had dwelt upon the controversy, no doubt on appreciation of
the evidence but not in proper or right perspective. Therefore, it was not
necessary for the Single Judge to made through every reasoning and give
his reasons for his disagreement with the conclusion reached by the
Magistrate. On relevant aspects, the Single Judge has dwelt upon in detail
F and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality in the approach adopted by the
Single Judge. Hence, the Single Judge was right in his findings that the
pr~secution has proved the case base1l upon the confession of the appelG
lant. [808-H, 829-A-B, E-G]
.i.
6.1. The appellant has committed the offences under Section
.135(1)(j) of the Act and Sections 85(1)(a) and 86 of the Gold (Control)
Act, 1968 and instead of being committed to jail, the appellant should be
sentenced to pay fine or Rs. 10,000 and Rs. 5,000/· respectively for the two
aforementioned offences, within 4 months from the date of this judgment.
H In default, the appellant shall undergo imprisonment for a period of 2
I
,-.l
PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.]
805
-~
months and 1 month respectively. (829-D]
A
6.2. The persons involved in contravention of the provisions of the
....
Act are white-collared offenders and organised gangsters and they get the
best of talent in the profession to assist them. The Union of India should
take care to entrust these sensitive cases of far reaching effect, in parB
ticular on question of law, to counsel who have experience and ability in
that branch of law to defend their cases: Lest it is public justice that suffers
4
and economy of the country is put to jeopardy.
Ed.: The remarks made in this judgment against Shri R.R. Misra,
Senior Counsel for the Respondent, have been deleted by a subsequent c
order dated February 24, 1998.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
543 of 1988.
;.
From the Judgment and Order dated 13.7.88 of the Kerala High D
Court in Cr!. A. No. 501 of 1986.
D.D. Thakur, R. Satish, Ms. Anne Mathew, N.N. Bhatt and T.G.N.
Nair for the Appellant.
R.R. Misra, Y.P. Mahajan and Ms. Sushma Suri for the Respondent. E
Judgment of the Court was delivered by
K. RAMASWAMY, J . This appeal by special leave has come up
..(
before this Bench, pursuant to a reference under date November 9, 1994
passed by a two-Judge Bench, to consider whether the confe~sional stateF
ment of th~ appellant given to the Customs officers under Section 108 of
the Customs Act, 1962 (for short, the 'Act'), though retracted at a later
stage, is admissible in evidence and could form basis for conviction and
whether retracted confessional statement requires corroboration on
material particulars from independent evidence? In support of the refer- G
ence, the learned Judges have cited Kashmira v. The State of Madhya
_,.
Pradesh, AIR (1952) SC 159 and Chandrakant Chimanlal Desai v. State of
-!..
Gujarat, [1992) 1 SCC 473.
The facts in this case are that at 8.00 a.m. on December 6, 1980, 200
gold. biscuits of foreign marking were recovered from the compound of the H
806
SUPREME COURT REPORTS
(1997] 1 S.C.R.
A appellant's house in his presence after digging got done by the Customs
official, PW-2, T.K. Rajasekaran, Superintendent of Customs, and PW-5,
N. Gopalan Nambiar, Inspector and two panch witnesses, PW-3 and
another. The same were kept concea.led in a wooden box hurried in the
ground visible through the window of his bed-room. The appellant gave, in
B his own hand-writing, confessional statement, Ex. P-4, at 1.00 p.m. on the
said date before the Customs officials. In the proceedings for confiscation,
200 gold biscuits, since unclaimed, were confiscated. But the imposition of .
penalty was set aside which became final. Thereafter, the complaint was
filed by PW-1, the Collector of Customs on May 15, 1982 and it was refiled
on January 1, 1985. The appellant was apprehended on June 19, 1982 and
C was released on bail. The prosecution case hinges upon the retracted
. confessional statement, Ex. P-4, the recovery proceedings, Ex. P-3, and
evidence of witnesses, PWs-1 to 5 for proof of recovery of the contraband
from the compound of the appellant's house, the Magistrate by his judgment dated March 29, 1986 acquitted the appellant of the charges under
D Section 135 (1)(i) of the Act and Sections 85 (l)(a) and 86 of the Gold
(Control) Act, 1968. On appeal, the learned Single Judge of the Kerala
High Court by the impugned .Judgment dated July 13, 1988 set aside the
acquittal and convicted the appellant of the aforesaid offence and sentenced him to undergo imprisonment for a period of 1 year and 6 months
respectively and both the sentences were directed to run concurrently.
E
Shri Thakur, learned senior counsel for the appellant, has contended
that the confessional statement, Ex. P-4 was obtained by coercion and
threat of implicating his wife in the offences and, therefore, the appellant
had not made voluntary statement. The recovery of the gold biscuits from
F his compound was shrouded with several suspicious features. He further
argued that the panch witness, PW-3 was involved in smuggling activities
and initially a warrant to search his house was obtained but when the same
proved unsuccessful, recovery came to be made from the house of the
appellant. They went to the compound and straightaway got the spot
G located and <lugged up the place from which the gold biscuits were
recovered. That would go to show that PW-3 had implanted them in the
compound of the appellant for safe custody thereof. Unless the appellant
had conscious possession of the contraband, he could not be convicted of
the offence. The Magistrate has given valid and cogent reasons in support
H of his conclusion that the prosecution failed to prove the case beyond
-
1
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PAVUNNY "· ASSTf. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY .T.]
807
reasonable doubt. The High Court, without properly appreciating the A
reasons given by the Magistrate and without finding whether or not those
reasons were sustainable on the basis of the evidence on record, independently considered the evidence and reached the conclusion that the
prosecution had proved its case against the appellant beyond reasonable
doubt. The approach adopted by the High Court is not correct in law. He B
also contended that the learned Judge should have first marshalled the
facts and circumstances to conclude whether prosecution has independently proved it case de hors Ex. P-4 which could be considered first
to be a voluntary confession or was obtained by threat, coercion or inducement. Even in reaching the conclusion that it was a voluntary confession it C
could not by itself form the basis for conviction. It could be used only to
corroborate other independent evidence which should inculpate the appellant in the commission of the offence. On proof of those facts, the retracted
confession could be used as evidence corroborative to satisfy the conscience of the Court that the prosecution has proved its case beyond D
reasonable doubt from other evidence on record. In support thereof, he
placed reliance on Kashmira Singh 's case and Chandrakant Chimanlal
Desai's case. In support of his contention that Customs officers, PW-2 and
PW-5 are persons in authority under section 24 of the Evidence Act, he
cited Vallabhdas Liladhar & Ors. v. Assistant Collector of Customs, (1965] E
3 SCR 854. He further contended that the moment the Customs officer
had taken the appellant into custody, he had become a person accused of
the offence and that the confession made during the custody, obtained by
coercion and threat of implication of his wife into the crime was not
voluntary and consequently Ex. P-4 is not admissible in evidence under
F
Section 24 o! the Evidence Act. In support thereof, he placed reliance on
State of U.P. v. Deoman Upadhyaya, (1961] 1 SCR 14. The adduction of
evidence by the prosecution must be tested on the touchstone of fairness
of procedure and its trustworthiness. The confessional statement, Ex. P-4
obtained by threat and coercion being inadmissible, it could not be pressed G
into service and the prosecution could not make it a base for proving the
offences charged against the appellant. The possession of contraband
should be conscious possession which must independently be proved
beyond reasonable doubt. When the Magistrate considered all the evidence
and gave him the benefit of doubt, the High Court did not test the H
"
~i
s08
SUPREME COU~T REPORTS
(1997) 1 S.C.R.
A correctness of all the reasons of the Magistrate, reversal of the acquittal by
~
the High Court is bad in law. In support thereof, he relied upon Satbir
Singh & Anr. Etc. Etc. v. State of Punjab, [1977] 3 SCR 195.
"
When we asked the learned counsel appearing for the Union of India
r
B whether Customs officer is a person in authority , the learned counsel
started arguing that under Section 108 of the Act the officers are empowered to record the statement of the accused and then he pointed out
~ -
that under the Act, though they were authorised to have the statement of
the accused recorded under Section 108, in view of the ratio of Vallabhdas
c Liladhar case they are persons in authority. He started conceding to the
question whether confession is inadmissible in evidence and prosecution
could rely thereon, he started conceding to the question. We are constrained to observe at the stage that though the two-Judge Bench referred
the question of law to a three-Judge Bench, the learned counsel did not
D
make any attempt to investigate into the questions of law and was on the
brink of making concessions and proceeded to argue on that premise. Since
wrong concession, in particular on question of law, does not bind this Court
and there are plethora of precedents covering the field, we pointed out to
the counsei that he rendered no assistance to the Court constraining it to
independently investigate into the matter by itself. Accordingly, we closed
E the arguments. Without meaning any disrespect to the learned counsel, we
are at pains to point out that the persons involved in contravention of the
provisions of the Act are white-collared offenders and organised gangsters
get the best of talent in the profession to assist them. The Union of India
should take care to entrust these sensitive cases of far reaching effect, in
F
particular on question of law, to counsel who have experience and ability
in that branch of law to defend their cases. Lest it is public justice that
.
suffers and economy of the country is put to jeopardy. Unfortunately, the
counsel did not make any effort to analyse the provisions of the Act nor
did he make investigation into question of law from the decisions rendered
G
by this Court. At this juncture, it is further relevant to point out that when
the Union of India has its panel of counsel, they should see to it that work
is assigned to the counsel who can competently argued the case in that
behalf lest, for lack of assistance, investigation and marshaling the ques-
....
,
tions of fact and law, public justice tends to suffer. We would greatly
appreciate the counsel appearing for the appellant who placed for conH sideration all aspects of the case on law and facts. It is, therefore, for the
PAVUNNYv. ASS1T. COLLECTOR, (H.Q.) C.E.C. (K. RAMASWAMY J.j
809
Secretaries of the Departments of Law & Justice and Finance to look into A
---
the matter and set their house in order; equally, the Attorney General of
India should also see that the affairs in the Central Agency in the Supreme
Court are organised accordingly. We have pointed out .all this only to
express our deep anxiety as the burden on the Court is multiplied to
undertake unto itself the task of investigating into all aspects to consider B
the case so as to reach satisfactory conclusion.
-.,J
The primary question, as referred to us for consideration, is: whether
the retracted confessional statement, Ex. P-4, by the appellant is inadmissible in evidence under Section 24 of the Evidence Act and what is the
scope for its consideration? Since we did not receive any assistance on the c
question of law, we have independently investigated the case law ourselves
and to the extent we could lay our hands, we are dealing with the relevant
case law in.that behalf. Section 24 of the Evidence Act deals with admissibility of the confession. It reads as under :
D
"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
E
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
-..l
evil of a temporal nature in reference to the proceedings against
h"
"
F
un.
A bare reading of the above provision would indicate that for application of Section 24 of the Evidence Act, the following ingredients are
required to be established: (a) the statement in question is a confession;
(b) such confession has been made by an accused; (c) it has been made to G
a person in authority; ( d) it was obtained by reason of any inducement,
threat or promise proceeding from a person in authority; ( e) such induce-
;;
ment, threat or promise must have reference to the charge against the
accused person; and (t) the inducement, threat or promise must be, in the
opinion of the Court is sufficient to give an accused person grounds which
would appear to him to be reasonable by supposing that by making it he H
. 810
SUPREME COURT REPORTS
[1997) 1 S.C.R.
A would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
The question, therefore, is: whether the appellant was a person
accused of an offence on December 6, 1980 at 1.00 p.m. when the confesB sional statement was given by the appellant, admittedly, in his own handwriting, (Ex. P-4 being the English translation thereof) on the even date or
when he was summoned by PW-2 and PW- 5 to the Customs office on the
same day? Section 108(1) of the Act empowers any Gazetted officer of
Customs to summon any person whose attendance he considers necessary
either to give evidence or to produce a document or any other thing in any
C enquiry which such officer is making in connection with the smuggli11g of
any goods. The person so summoned has an opportunity of locus penitiae
to give true and correct statement and also an opportunity to reflect upon
and tender the evidence, be it recorded or given in his own hand-writing.
Under sub-section (3), all persons so summoned shall be bound to attend
D either in person or by an authorised agent, as such officer may direct, and
to state the truth upon any subject respecting which they are examined or
make statement and produce such documents and other things as may be
required. However, by operation of the proviso to sub-section (3), exemption under Section 132 of the Code of Civil Procedure, 1908 shall be
applicable to any requisition for attendance under the said section. SubE section ( 4) envisages that every such inquiry, as aforesaid, will be deemed
to be a judicial proceeding within the meaning of Section 193 and Section
228 of the Indian Code (IPC).
In Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
F
a Constitution Bench of this Court held at page 466 that the Customs
officers are entrusted with the powers specifically relating to the collection
of custom duties and prevention of smuggling and for that purpose they
are invested with the power to search any person on reasonable suspicion,
to summon, x-ray the body of the person for detecting secreted goods, to
G arrest' a person against whom a reasonable suspicion exists that he has been
guilty of an offence under the Act, to obtain a search warrant from a
Magistrate, to search any place within the local limits of the jurisdiction of
such Magistrate, to collect information by summoning persons to give
evidence and produce documents and to adjudge confiscation. He may
exercise these powers for preventing smuggling of goods dutiable .or
H prohibited and for adjudging confiscation of those goods. For collecting
PAVUNNY v. ASSTI. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.]
811
evidence the Customs Officer is entitled to serve summons to produce a A
document or other thing or to give evidence and the person so summoned
is bound to attend either in person or by an authorised agent, as such
officer may direct, is bound to state the truth upon any subject respecting
which he is examined or makes a statement and to produce such documents
and other things as may be required. The power to arrest, the power to
detain, the power to search or obtain a search warrant and the power to
collect evidence are vested in the Customs Officer for enforcing compliance with the provisions_ of the Sea Customs Act. He is empowered to
investigate into the infringement of the provisions of the Act primarily for
the purpose of adjudicating forfeiture and penalty. He has no power to
investigate into an offence triable by a Magistrate, nor has he the power to
submit a report under Section 173 of the Code of Criminal Procedure (for
short, the 'Code'). He can only make a complaint in writing before a
competent Magistrate. The above law was laid down under the Sea Customs Act, the predecessor of the Act. The ratio therein equally applies to
B
c
the powers exercised by the Customs Officer under the Act. The Act D
enlarges their powers. The Customs officer is not a police officer nor is he
empowered to file charge-sheet under Section 173 of the Code though he
conducts enquiry akin to an investigation under some of the provisions of
the Code. His acts are in the nature of civil proceedings for collecting
evidence to take further action to adjudicate the infringement of the Act
and for imposition of penalty prescribed thereunder which would be selfevident from sub-section ( 4) of Section 108.
The question then is : whether the appellant is a person accused of
E
an offence within the meaning of Section 24 of the Evidence Act? The
question is no longer res integra. It is seen that the connotation of the words
F
"person accused of the offence" under Section 24 of the Evidence Act is
generally referable to initiate investigation of cognisable offence in Chapter
XII of the Code of 1894 and the Code. It is not necessary, for the purpose
of this case, to undertake elaborate consideration-as to when the person
becomes a person accused of an offence under the Code. Suffice it to state
that in a reasoned judgment, a two-Judge Bench of this Court elaborately G
considered this question in Directorate of Enforcement v. Deepak Mahajan
& Anr., [1994] 3 SCC 440 thus obviating the need to dwell in depth on the
same now. Therein, the question was whether, when the person has surrendered before a Magistrate and was arrested under Section 38 of Foreign
Exchange Regulation Act, the Magistrate had jurisdiction to authorise his H
812
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A
detention under Section 167(2) of the Code. In that behalf, it was held that
the person who surrendered before the Magistrate- was accused of an
offence and that, therefore, gave the Magistrate the power to proceed
further under the Code to remand the person to the judicial custody. As
regards the person arrested for committing ·an offence under the Act, in
B Ramesh Chandra Melita's case (supra), at page 740, Constitution Bench
held tha_t Customs Officer does not at the stage of enquiry accused the
person suspected of infringing the provision of the Sea Customs Act, with
the commission of any offence. His primary duty is to prevent smuggling
and to recover duties of customs when collecting evidence in respect of
smuggling against a person suspected of infringing the provisions of the Sea
C Customs Act In lllias v. Collector of Customs, Madras, [1969] 2 SCR 613
another Constitution Bench had held that Customs authorities have
been invested under the Act with many powers of a police officer in
matter relating to arrest, investigation and search, which the customs
officers did not have under the Sea Customs Act. Even though the
l,
D Customs officers have been invested with many of the powers which an
officer in charge of a police station exercises while investigating a '
cognisable offence, they do not, thereby, become police officers within
the meaning of Section 25 of the Evidence Act and so the confessional
statements made by the accused persons to Customs officials would be
admissible in evidence against them. It was further held at page 618 that
E as regards the procedure for search the important change which has
been made in the Act is that under Section 105 if the Assistant Collector
of Customs has reason to believe that any goods liable to confiscation
or any documents or things are secreted in any place, he may authorise
any officer of Customs to search or may himself search for such goods,
p
documents or things without warrant from the Magistrate.
It would thus be clear that the appellant was not a person accused
of the offence under the Act when he gave his statement under Section 108
of the Act on December 6, 1980 at 1.00 p.m. in the office of the Superintendent of Customs, PW-2. The question then is: as to when the appellant
G became an accused of the offence? This Court in Veera Ibrahim v. The State
of Maharashtra, (1976] 2 SCC 302 had held in para 9 that an accusation
which would stamp him with the character of such a person was labelled
only when the complaint was filed against him by the Assistant Collector
of Customs complaining
of the commission of the offences under
H section 135(a) and Section 135(b) of the Act. In that case the appellant
\
PAVUNNYv. ASSlT. COLLECTOR, (H.Q.) C.E.C. [K RAMASWANIY J.]
813
was initially arrested by the police on December 12, 1967 on suspicion of A
having committed an offence under Section 124 of the Bombay Police
Act and panchnama of the packages in the truck was also prepared.
But the police did not register any case or enter any f'.l .R. nor did
the police open the packages or prepare inventories of the goods
packed therein. They dropped further proceedings but informed the
Customs authorities, who ope~ed the packages and on inspection
finding them contraband goods, seized them under a panchnama.
They took the appellant an others into custody after due compliance
with the requirements of law. The Inspector of Customs questioned
the appellant and recorded his statement under Section 108 of the
Act. Subsequently, he was charged for the offence under Section 135
B
c
of the Act.