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2010 DIGILAW 1018 (PNJ)

Kartar Singh v. Asstt. Collector Of Customs

2010-02-26

A.N.JINDAL

body2010
Judgment 1 This judgment of mine shall dispose of two connected petitions bearing Nos. 275 and 435 of 2002 preferred against the judgment dated 22-1-2002 passed by the learned Additional Sessions Judge, Amritsar, dismissing the appeal of the accused-petitioners against the judgment dated 3-11-1997 passed by the Chief Judicial Magistrate, Amritsar, convicting and sentencing them to undergo rigorous imprisonment for five years and to pay fine of Rs. 5,000/- each under Section 135 of the Customs Act (herein referred as the Act) for having in their possession 225 smuggled gold biscuits. 2 The accused are the intruders coming from Pakistan towards India, on the intervening night of 12/13-3-1991. V.P. Sharma Commandant B.S.F. Tej Singh Bisht, Inspector and other officials of B.S.F. laid picket opposite B.P. No. 136/6 to 136/7 of Indo-Pak Border. At about 1.45 a.m. On 13-3-1991, they apprehended the accused after a brief encounter and were brought to B.O. Dal. After completing formalities in the presence of the member panchayat of the village, on search of the accused, two bandoliers of Khaki jean were recovered from Mukhtiar Singh containing 75 and 70 gold biscuits respectively of foreign origin and from the personal search of the accused Kartar Singh, one bandolier containing 80 gold biscuits was recovered. However, the accused failed to produce valid documents for keeping these 225 gold biscuits. The accused as well as the gold biscuits were handed over to the customs authorities at Customs House, Amritsar. Case FIR No. 14 of 1991 was registered about which the customs authorities were informed. Panchnamas, were duly prepared. The accused had made the statements under the Customs Act. The gold biscuits were also weighed at the Custom House and referred for test. On analysis the biscuits were found to be of gold weighing 26.325 kgs worth of 999 touch purity valued at Rs. 93,13,425/-. The accused in their statements under Section 108 of the Act, also admitted having brought the gold biscuits from across the border and they were to deliver the same to Swaran Singh of village Daleri. They also admitted having brought one other consignment of 200 gold biscuits previously also for delivering the same to the accused Nirmal Singh. As such, Nirmal Singh and Swaran Singh were also impleaded as accused and complaint was filed against all the four persons. They also admitted having brought one other consignment of 200 gold biscuits previously also for delivering the same to the accused Nirmal Singh. As such, Nirmal Singh and Swaran Singh were also impleaded as accused and complaint was filed against all the four persons. Accused Swaran Singh and Nirmal Singh were declared as Proclaimed Offenders, whereas, the accused Mukhtiar Singh and Kartar Singh faced trial. 3 Accordingly, they were charged for the aforesaid offences to which they pleaded not guilty and claimed trial. 4 In pre-charge evidence, the complainant had examined Roop Singh, Intelligence Officer (PW1), Inspector Tej Singh Bisht (PW2) and V.P. Sharma, Commandant B.S.F. (PW3). 5 After framing the charge, the witnesses were re-called for cross-examination. 6 When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. They further explained that nothing was recovered from them. B.S.F. officials had found abandoned gold and on the instructions of their senior officers they had planted the same upon them. 7 The trial ended in conviction. Their appeal was also dismissed. 8 The multi-fold contentions have been raised including that the testimony of Roop Singh is based on here say; no independent witness was joined by the customs officials at the time of effecting recovery and the customs officials are interested witnesses; confessional statements are neither admissible nor have been proved according to law; and that the report made by the goldsmith has also not been proved according to law. 9 To the contrary, learned counsel for the respondent has supported the prosecution version stating that the witnesses are quite reliable. They have no animus or enmity against the accused for implicating them in a false case. Such heavy recovery of gold biscuits worth about Rs. 1 crore could not be planted falsely upon the accused. As regards the test report the accused has not denied that these were the gold biscuits but their plea is only that the gold biscuits were recovered from the nearby fence but the same were planted upon them. 10 As regards the statements under Section 108 of the Customs Act, it was submitted that the statements are not shown to be forcibly obtained but it is proved that these were made by the accused voluntarily under their signatures/thumb impressions. 11 Arguments heard. Record perused. 10 As regards the statements under Section 108 of the Customs Act, it was submitted that the statements are not shown to be forcibly obtained but it is proved that these were made by the accused voluntarily under their signatures/thumb impressions. 11 Arguments heard. Record perused. 12 It stands fully established by the prosecution from the testimony of V.P. Sharma, Commandant (PW3) and Inspector Tej Singh Bisht (PW2) that the accused were apprehended when they were coming from the side of Pakistan under the Indian territory. The accused had fired upon them, however, they were nabbed and 225 gold biscuits were recovered from them. At this juncture, it was difficult to have the help of any independent witness. The testimony of these two witnesses being without any bias, malice or enmity against the accused could not be discarded merely for the fact that the same are not corroborated by any independent source. The minor discrepancies are bound to occur in the statements of the witnesses. However, they are quite consistent on all material points. Nothing fruitful could be elicited from their testimonies which could create a dent in the prosecution case. 13 As regards the test report Ex. PE made by the goldsmith, the same was exhibited in the court without any objection. Further it is found that an application Ex. PQ was given to the court on which the order Ex. PR was passed then the authentication certificate Ex. PS was given by Sham Sunder Gupta the then Judicial Magistrate 1st Class, Amritsar and thereafter, the gold biscuits were disposed of. It is further noticed that the metal recovered from the accused, has not been denied to be gold but the only plea set up by them is that the gold biscuits were found abandoned. Thus, inference would be drawn that these were not of any other metal except that of the gold itself. 14 As regards the statements under Section 108 of the Customs Act, it may be observed that these were recorded under the signatures/thumb impressions of the accused and no such objection was raised or recorded by the accused over the statements that the same were obtained from them under pressure. They well knew about their good and bad and they were bound to speak the truth in view of sub-section (4) of Section 108 of the Customs Act. They well knew about their good and bad and they were bound to speak the truth in view of sub-section (4) of Section 108 of the Customs Act. The statements made by the accused under the aforesaid section are not covered under Section 24 of the Act. While elaborating the applicability of Section 24 of the Act, the Apex Court in case Percy Rustomji Basta v. The State of Maharashtra , 1971 Crl. L.J. 933 observed as under : 22. Further, it is to be seen that it is not every threat, inducement or promise even emanating from the person in authority that is hit by Section 24 of the Evidence Act. In order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that "by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him. In the case before us what is it that the appellant has been told? He has been told that the law requires him to tell the truth and if he does not tell the truth, he may be prosecuted under Section 193, I.P.C. for giving false evidence. This, we have held, does not constitute a threat under Sec. 24 of the Evidence Act. The plea of the appellant was that he was compelled to make the statement under the threat that otherwise his mother and another brother will be prosecuted. He has further stated that he was induced to make the statement on the belief that it will be used only against the second accused and not against him. These pleas of the appellant have been disbelieved by both the trial Court and the High Court. Therefore, it follows that even assuming that there was an inducement or threat, the appellant had no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the Customs Officers. Therefore, even on this ground also Section 24 of the Evidence Act has no application. Therefore, even on this ground also Section 24 of the Evidence Act has no application. 15 For the aforesaid reasons, it can safely be observed that Section 24 of the Evidence Act is not applicable to the statement made by the accused under Section 108 of the Customs Act and could be treated as evidence against them. 16 Keeping in view the heavy recovery, no leniency on the quantum of sentence could be extended. 17 Resultantly, finding no merit in both the petitions, the same are dismissed. 18 Copy of the order be sent to the learned Chief Judicial Magistrate, Amritsar for compliance.