JUDGMENT : 1. These revision applications are directed against the common judgment and order dated 31.1.1997 passed by the learned Additional Sessions Judge, Kutch - Bhuj in three Criminal Appeals No. 41 of 1995, 42 of 1995 and 43 of 1995. The impugned judgment and order confirmed the judgment and order passed by the learned Chief Judicial Magistrate, Bhuj – Kutch in Criminal Case No. 2633 of 1984. 2. In the appeals afore-stated, the sentences imposed upon each of the accused, namely, Shamji Govindji Aiyer - accused No. 1, Naran Kanji Aiyer – accused No. 2 and Shamji Naran Aiyer – accused No. 5 of rigorous imprisonment of two years and a fine of Rs. 500/- and sentence of simple imprisonment of six months in default of payment of fine under section 135 of the Customs Act came to be confirmed. Similarly, the judgment and order imposing sentence of rigorous imprisonment of five years and a fine of Rs. 10,000/- and sentence of simple imprisonment of 12 months in default of payment of fine came to be confirmed qua accused No. 4 – Dhanji Ramji Aiyer. Accused No. 3 was acquitted by the trial court. 3. The brief facts leading to this group of revisions can be stated thus : On receipt of the input about the likelihood of passing of truck bearing registration GRO 4008 laden with smuggled goods of foreign origin near Bhachauv Customs Check post, it was apprehended at the said spot in the midnight 1:00 a.m. on 14th January 1983 with the contents of cement bags and on further inspection, beneath cement bags, smuggled goods of foreign origin were found. It was alleged that the truck carrying accused nos. 2 and 3 was being driven by accused no. 1. Accused no. 3 escaped under the cover of darkness and was subsequently apprehended. 3.1 Preliminary panchanama was drawn noting the search made from the truck and thereafter, the truck was taken to the office of Assistant Collector of customs Bhuj, Kutch. The detailed inventory indicated 41 packs of prohibited foreign goods worth Rs 26,11,300/-. The prohibited articles were the electronics goods such as calculator, taperecorders, video cassettes etc. It is the prosecution case that all these goods were liable to be confiscated under section 111 of the Customs Act and in absence of valid and authentic documents, they were seized under the valid panchanama. The prohibited articles were the electronics goods such as calculator, taperecorders, video cassettes etc. It is the prosecution case that all these goods were liable to be confiscated under section 111 of the Customs Act and in absence of valid and authentic documents, they were seized under the valid panchanama. 3.2 Further inquiry revealed that accused no 4 and accused no. 5 were associated with the transportation of the said smuggled goods and accused no. 4 is stated to be owner of the said goods. 3.3 Confessional statements of accused were recorded under Section 108 of the Customs Act and it also appears that amongst others, accused no. 1 and 2 denied the confessional statement by questioning its voluntariness. 3.4. Statements of non-accused also came to be recorded under section 108 of the Customs Act. 3.5 During the trial, the evidence so adduced and statement of the accused and others, recorded under section 108 of the Customs Act constituted the record of the case. On appreciation of the evidence including the statements of the accused and other persons who were not examined as witnesses, the conviction and sentence as aforestated was recorded. 3.6. During the course of the trial, the notification dated 20th July 1984 as amended by notification dated 23rd October 1984 and thereafter further amended Notification dated 8th June 1990 issued under relevant provisions of the Customs Act were pressed into service to establish the prohibition against the importation of the nature of goods in question and thus, contravention of the notification with the charge of accused having imported goods of foreign origin without authority was alleged. 4. The aggrieved petitioners in the respective revision applications question the impugned judgment and order as confirmed in respective appeals, referred to hereinabove. 5. Heard the rival parties. 6. As far as accused no. 4 Dhanji Ramji Aiyer is concerned, the following issues have been raised. 6.1 That the confessional statements of co-accused is not a substantive piece of evidence in view of Pancho v. State of Haryana AIR 2012 SC 523 , and therefore confessional statements of accused Nos.1 and 2 being the co-accused could not have been relied upon as substantive piece of evidence against the petitioner Dhanji Aiyer. 6.2 Relying upon Superintendent of Customs v. Bhanabhai Khalpabhai Patel and Anr. 6.2 Relying upon Superintendent of Customs v. Bhanabhai Khalpabhai Patel and Anr. ( AIR 1992 SC 1583 ), the contention is that the statement under section 108 of the Customs Act is also covered by section 30 of the Evidence Act and therefore distinguishing such statements on the basis of Sections 30 and 31 of the Evidence Act or for that reason, on the basis of section 313 of the Cr. P.C. was a serious error of law committed by the courts below. 6.3 It is also argued by the learned counsel for accused no. 4 that apart from the illegality committed by the courts below in drawing the inferences of guilt against the petitioner on his having sought and granted anticipatory bail, his statement allegedly recorded under section 108 of the Customs Act was not inculpatory and, thus, the sole basis of conviction is the statements of co-accused as well as those who were not examined before the Court and thus the petitioner was deprived of an opportunity of cross-examining them and even the said persons were deprived of an opportunity of having their evidence recorded in relation to such statements wherein they might have even denied having made the statements under section 108 of the Customs Act voluntarily or having made the statements at all or they might have even questioned the trustworthiness of the statements in their evidence. 6.4 It is also contended that the nature of goods being of foreign origin cannot be ascertained only from the foreign marks but the factum of it being foreign origin was required to be established beyond reasonable doubt by leading cogent evidence, the lack of which rendered the prosecution vulnerable. Reliance is placed on Mr. Bejan Ardeshar Vapiwala v. The State of Gujarat in Criminal Revision Application No. 682 of 2004 decided on 4.9.2015. 6.5 It is also contended that no evidence was adduced to establish that the goods in question were prohibited articles under the relevant provisions of the Customs Act on the date of the commission of offence alleged against the petitioners and others i.e. 14th January 1983. It is contended that it was misconceived for the prosecution to rely upon the notification dated 20th July 1984 as amended from time to time for establishing the prohibition on import of the goods in question. It is contended that it was misconceived for the prosecution to rely upon the notification dated 20th July 1984 as amended from time to time for establishing the prohibition on import of the goods in question. It is submitted that the said notification was prospective in nature and thus, in absence of evidence establishing the prohibition of the import of the goods in question on 14th and 15th January, 1983, the very genesis of offence was lacking. It was also argued that the appellate court erred in not considering the said question of law though raised before it. 6.6 It is argued that the voluntariness of the statements of accused no. 1 and 2 was surrounded by serious doubts in view of their illegal detention between 15th January 1983 and 19th January 1983. It was argued that after their illegal detention, their relatives were compelled to move application under section 97 of the Cr. P.C. seeking the search warrant for them which was ultimately issued by the court on 17th January 1983 in pursuance to which they were produced before the court respectively on 19th January 1983 and on 21st January, 1983 and immediately thereafter both of them retracted their so called confessional statements. It was argued that on the mere ground of the said accused having not made any complaint to the learned Magistrate concerned on their production before him about the ill-treatment, the retraction does not become invalid or afterthought. 6.7 The learned counsel for the petitioner, therefore, would contend that on all counts, the aforesaid findings recorded by the Courts below suffered from the vice of either of ‘lack of evidence’ or are based on the evidence unsustainable in law causing grave injustice to the petitioners warranting exercise of powers of this Court under section 397 of the Cr. P.C. 7. In Revision Applications No. 74 and 75 almost similar contentions are raised by learned counsel appearing in the said respective petitions, thus, adopting the arguments advanced by learned counsel for the petitioner appearing in the Revision Application No. 70/97. P.C. 7. In Revision Applications No. 74 and 75 almost similar contentions are raised by learned counsel appearing in the said respective petitions, thus, adopting the arguments advanced by learned counsel for the petitioner appearing in the Revision Application No. 70/97. In addition, learned counsel appearing for the accused Shamji Naran Aiyer would contend that before prosecution, the sanction in accordance with law was required and burden to establish that the sanction was in accordance with law rested on the prosecution and that basis of sanction was not established, there is no evidence on record even to suggest as to who placed the necessary papers before the sanctioning authority; index of the paper placed before the sanctioning authority along with the forwarding papers in this regard are not on record; that in absence of examination of the witness in support of the factum of grant of sanction, the factum of sanction was not established. 7.1 It was also argued that the sanction was not established that there was a discrepancy as to custom file/complaint number. The custom file No. VIII/10-3/P.I/83 was not referred to in any sanction order but different no. I.e. VIII/17- 112/CUS-83 came to be referred in the sanction order which clearly exhibited non-application of mind and thus the sanction appears to have been mechanically granted. 8. The learned counsel for the Assistant Collector of Customs, raised following contentions. 8.1 That the notification on which reliance was placed by the learned Prosecutor in the trial court was unnecessary as the same was issued in continuance of notification issued in the year 1969 which was the basic notification. It is argued that not a single question relating to the notification or even suggesting that the goods in question were not prohibited was posed to any of the witnesses, in absence of which the fact that the goods were prohibited was established on the basis of the testimonies rendered by the customs officials examined before the trial court. 8.2 The next contention is that it is unnecessary for sanctioning authority to elaborate reasons for sanction. Reliance is sought to be placed on (The) State of Gujarat v. Patira Packaging (Firm) & Ors. 1999(2) G.L.H. 761. 8.2 The next contention is that it is unnecessary for sanctioning authority to elaborate reasons for sanction. Reliance is sought to be placed on (The) State of Gujarat v. Patira Packaging (Firm) & Ors. 1999(2) G.L.H. 761. It is contended that on appreciation of the order of sanction, the appellate court recorded its satisfaction and observed that the material placed before the sanctioning authority including the evidence has been taken into account by it and therefore the order of sanction cannot be faulted with. 8.3 It was argued that in case of some of the witnesses/accused, no inculpatory statements appeared in their statement recorded under section 108 of the Customs Act which suggests the absence of coercion or compulsive circumstances in recording the statements under section 108 of the Customs Act and thus such statements were admissible in evidence. 8.4 It was contended, while referring to section 138B of the Act that evidence of non-witnesses was rightly relied upon in absence of their examination under the circumstances mentioned in section 138B of the Act. 8.5 It is argued that when the statements of accused were recorded under Section 108 of the Customs Act, no complaint against them was filed and thus were not made accused and therefore such statements cannot be treated as the statements of accused and therefore were admissible in evidence even against co-accused. 9. In view of above contentions, the following issues arise for consideration of this Court in this group of Revision Applications: 1. Whether, in absence of notification prohibiting the import of articles, as on date of the alleged offence the notification dated 20th July 1984 as modified by notification dated 28th October 1984 and further amended by notification dated 8th June 1990 could have been pressed into service on the ground that the said notification were merely amendments to the principle notification issued in the year 1969, although the said principle notification was not placed on record before the trial court, to establish that the said notification was prohibiting the import of the articles in question. 2. Whether the Court would be justified in relying upon the statements recorded under section 108 of the Customs Act in absence of the examination of its makers who are cited as witnesses before it. 3. Whether statements recorded under section 108 of the Customs Act constitute evidence under section 3 of the Evidence Act. 4. 2. Whether the Court would be justified in relying upon the statements recorded under section 108 of the Customs Act in absence of the examination of its makers who are cited as witnesses before it. 3. Whether statements recorded under section 108 of the Customs Act constitute evidence under section 3 of the Evidence Act. 4. Whether statements under section 108 of the Customs Act are relevant for the purpose of section 24 and 29 of the Evidence Act. 5. Whether the statements recorded under section 108 of the Customs Act when used against co-accused are hit by Section 30 of the Evidence Act. 6. Whether on the date of detention of the accused, they were in fact accused of the offences subsequently alleged against them in the complaint. 7. Whether in absence of cogent evidence establishing the articles to be of foreign origin, a mere mark of foreign origin affixed on the articles would be sufficient to establish beyond reasonable doubt that the articles were of foreign origin. 8. To what extent is the sanctioning authority expected to apply its mind before grant of sanction under section 137. 10. Before embarking upon the rival submissions, the legal position on various points emerging from the case law relied upon is required to be addressed. 11. In Pancho (supra) the Honble Supreme Court while dealing with the extra-judicial confession as also the confession by the co-accused ruled that an extra-Judicial confession is on the face of it, a weak piece of evidence and the courts are reluctant, in the absence of chain of cogent circumstances, to rely on it for the purpose of recording a conviction. The court must, therefore, first ascertain whether extra-judicial confession inspires confidence and then find out whether there are other cogent circumstances on record, to support it. While dealing with the confessional statement of coaccused and while relying upon few decisions in para 15 and 16, it opined that the proper way to approach a case involving confession of a co-accused is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. It further held that if it (evidence) is capable of belief independently of the confession, then it is not necessary to call the confession in aid. It further held that if it (evidence) is capable of belief independently of the confession, then it is not necessary to call the confession in aid. The court further noted that cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify his reasons in believing what without the aid of the confession, he would not be prepared to accept. The Apex Court relied upon Haricharan Kurmi v. State of Bihar, ( AIR 1964 SC 1184 ), wherein the Apex Court noted that the Constitution Bench referred to section 3 of the Evidence Act and observed that confession of a co-accused is not an evidence within the meaning of section 3 of the Evidence Act; it is neither oral statement which the court permits or requires to be made before it as per section 3(1) of the Evidence Act nor does it fall in the category of evidence referred to in Section 3(2) of the Evidence Act which covers all documents produced for the inspection of the court; that even then section 30 provides that a confession may be taken into consideration not only against its maker but also against a co-accused; that though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, yet it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way, that section 30 merely enables the court to take the confession into account, that it is, not obligatory on the court to take the confession into account. The court reiterated that a confession cannot be treated as substantive evidence against a coaccused that where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court may turn to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence, is right. The court clarified that though confession may be regarded as evidence in generic sense because of the provisions of section 30 of the Evidence Act, the fact remains that it is not evidence as defined in section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt which the judicial mind is about to reach on the said other evidence. 11.1 It is to be noted that the decision rendered in Pancho (supra) was dealing with the offence under the Indian Penal Code and not the Customs Act. 11.2. In Criminal Revision Application No. 381 of 2005 and other allied matters this court (Coram :Rajesh Shukla, J.) addressed itself on admissibility of the statements made under section 108 of the Customs Act. Reliance was placed upon K.I Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997) 3 SCC 721 ; Abdulla v. State of Maharashtra (AIR) 1968 SC 832 and Gulam Hussein Shaikh Chougule v. S. Reynolds, Supdt. of Customs, Marmgoa (2002) 1 SCC 155 . 11.3 In Gulam Hussein (supra) the Hon’ble Supreme Court answered the question as to whether the custom authorities, while recording the statement under section 108 of the Customs Act, had not followed the safeguards provided under section 164 of the Code of Criminal Procedure. However, a reference was made in the said decision to CCE v. Duncan Agro Industries Ltd. (2000) 7 SCC 53 . 11.4 In State of Gujarat Vs. However, a reference was made in the said decision to CCE v. Duncan Agro Industries Ltd. (2000) 7 SCC 53 . 11.4 In State of Gujarat Vs. Patira Packaging (firm) & Ors (supra) this court while dealing with section 20(1) of the Prevention of Food Adulteration Act, 1954 and section 114 of the Evidence Act ruled that according a consent under section 20(1) of the Act is an administrative act and not a quasi-judicial. Therefore a sanction need not contain detailed reasons in support of according the sanction. What is required is narration of basic facts that constitutes the offence and that Section 114(e) of the Evidence Act raises a presumption that the official act is performed regularly and burden is on the accused to establish contrary to rebut the presumption. 12. Several similar questions arising in this group of Revision Applications were answered in K.I Pavunny Vs Assistant Collector (HQ). Central Excise Collectorate, Cochin (1997) 3 SCC 721 which deals with the case arising under Section 108 of the Customs Act as distinguished from Pancho (supra), which dealt with the case arising under Section 396 of the IPC and thus K.I Pavunny (supra) can be more appropriately applied to the facts of the present case which also arises under Section 108 of the Customs Act. In K.I Pavunny (supra), as in the present case, statements of various persons including those subsequently arrayed as accused, came to be recorded during adjudicatory proceedings before laying accusation against them. Under such circumstances, in Paragraph-8, the Apex Court held that the custom officer, who recorded the statement during adjudicatory proceedings, having limited power to investigate and being bereft of the powers to lay chargesheet under Section 173 of the Cr. P.C., is not a police officer; that at the time of recording such statement, he was concerned with the acts in the nature of civil proceedings of collecting evidence for adjudication to ascertain whether the provisions of the act were infringed or not. Beneficial reference may be made in Paragraph-8 of K.I. Pavunny (supra). “Para-8 - In Ramesh Chandra Mehta Vs. Beneficial reference may be made in Paragraph-8 of K.I. Pavunny (supra). “Para-8 - In Ramesh Chandra Mehta Vs. State of West Bengal [ (1969) 2 SCR 461 ) 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 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 prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve summons to produce 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 the powers exercised by the Customs Officer under the Act. The Act enlarges their powers. 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 the powers exercised by the Customs Officer under the Act. The Act 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 self-evident from sub-section (4) of Section 108. 12.1 The Apex Court in K.I. Pavunny (supra) also answered the issue as to whether a person, whose statement is recorded in the proceedings of civil nature, without arraying him as accused, can be regarded as accused within the meaning of Section 24 of the Evidence Act. The question was answered thus: “9. The question that is; whether the appellant is a person accused of 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 "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 considered this question in Directorate of enforcement V/s. 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 had surrendered before a magistrate and was arrested under Section 38 of Foreign Exchange Regulation Act, the Magistrate had jurisdiction to authorise his detention under Section 167 (2) of the Code. [ (1994) 3 SCC 440 ] thus obviating the need to dwell in depth on the same now. Therein, the question was whether, when the person had surrendered before a magistrate and was arrested under Section 38 of Foreign Exchange Regulation Act, the Magistrate had jurisdiction to authorise his 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 Romesh Chandra Mehtra's case (supra), at page 740, Constitution Bench held that Customs Officer does not at the stage of enquiry accused the person suspected of infringing the provisions 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 Customs Act. In Illias Vs. Collector of Customs, Madras (1969) 2 SCR 6131 another Constitution Bench had held that Customs authorities have been invested under the Act with many powers of a police officer in matters relating to arrest, investigation and search, which the customs officers did not have under the Sea Customs Act. Even though the 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 61 8 that 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, documents or things without warrant from the magistrate. (emphasis supplied) “10. (emphasis supplied) “10. 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 became an accused of the offence? This court in Veera Ibrahim V/s 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 Section 135 (a) and Section 135 (b) of the Act. In that case the appellant was initially arrested by the police on December 12, 1967 on suspicion of having committed an offence under Section 124 of the Bombay Police Act and panchnama of the packages in the truck was also prepared. But the police did not register any case or enter any F.I.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 opened the packages and on inspection finding them contraband goods, seized them under a panchnama. They took the appellant and 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 of the Act. It was contended that he was an accused of the offence when the Customs officers recorded his statement and he was under testimonial compulsion prohibited under Article 20 (3) of the constitution. This court held that he was not an accused person of an offence at that time and confession was not inadmissible. But on facts it was held in that case that the confession was not inculpatory but one exculpating him from the offence. It was, therefore, held that the statement could not be pressed into service by the State. However, on other evidence, the convicting under Section 135 was upheld. Ratio of Romesh Chandra Mehta's case was applied.” “11. But on facts it was held in that case that the confession was not inculpatory but one exculpating him from the offence. It was, therefore, held that the statement could not be pressed into service by the State. However, on other evidence, the convicting under Section 135 was upheld. Ratio of Romesh Chandra Mehta's case was applied.” “11. In Magbool Hussain V/s. The State of Bombay [(1953) SCR 730], another constitution Bench held that hierarchy of officers under the Sea Customs Act is not the same as of police officers. That Act was enacted to prevent smuggling. The Customs Officers are empowered to arrest persons reasonably suspected of having committed an offence under the Sea Customs Act but the person arrested has to be taken forthwith before the nearest Magistrate or Customs collector. The Magistrate is empowered to commit such persons to jail or order him to be kept in custody of the police for such time as may be necessary to enable the magistrate to communicate with the proper officer of the Customs. In State of Punjab V/s. Barkat Ram [ (1962) 3 SCR 338 ] a three-judge Bench per majority held that the confession made to the Customs Officer and conviction on the basis of such confession under the Land customs Act, 1924 was held valid. The majority view was approved in Romesh Chandra Mehta's case and in Illias case. The following four propositions were laid in the judgment and approved in Illias case (supra): "(1) The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of customs officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and for determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods on which on duty had been paid and by imposing penalties and fines. (2) The customs staff has merely to make a report in relation to offences which are to be dealt with by a Magistrate. The customs officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (3) The powers of search etc. The customs officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (3) The powers of search etc. conferred on the customs officers are of a limited character and have a limited object of safeguarding the revenues of the State and the statute itself refers to police officers in contradistinction to customs officers. (4) If a customs officer takes evidence under Section 171A and there is an admission of guilt, it will be too much to say that that statement is a confession to a police officer as a police officer never acts judicially and no proceeding before him is deemed to be a judicial proceeding for the purpose of ss. 193 and 228 of the Indian Penal Code or for any other purpose." “12. In that case when the confessional statements were sought to be relied as evidence, objection was raised that they were inadmissible under Section 25 of the Evidence Act. This Court overruled the objection and held that they were admissible in evidence. It was further held that the Customs Officers were not police officers under the Act. Equally, in Romesh Chandra Mehta (supra) the objections as to admissibility under Section 25 of the Evidence Act on the basis of violation of Article 20 (3) of the constitution were rejected. 14. The question then is: whether the confession under Section 24 of the Evidence Act was obtained by threat, force or inducement etc. and thereby is inadmissible in evidence? In Vallabhdas Liladhar case (supra) the Constitution Bench had held that the statements made before the Customs authorities were used in support of the prosecution case. The admission thereunder constituted the evidence in proof of the charge. It was held at page 858 that the Customs authorities must be taken to be persons in authority under Section 24. The statements would be inadmissible in criminal trial if it is proved that they were caused by inducement, threat or promise. However, on the facts in that case it was held that the statements were not obtained by any threat. inducement or promise. The conviction on the basis of the retracted confession was upheld. The statements would be inadmissible in criminal trial if it is proved that they were caused by inducement, threat or promise. However, on the facts in that case it was held that the statements were not obtained by any threat. inducement or promise. The conviction on the basis of the retracted confession was upheld. The question then is: whether by reason of the authority under the Act in particular Section 108, the statement of the appellant is inadmissible under Section 24 of the Evidence Act? In Percy Rustomji Basta V/s. The State of Maharashtra [ AIR 1971 SC 1087 ], a Bench of two-Judges considered the question whether by reason of the recording of the evidence during the course of the inquiry under the Act the statement would be construed to be compulsive statements emanating from persons in authority so as to become inadmissible under Section 24 of the Evidence Act. In para 20 of the judgment it was held that it was not disputed that P.W. 5 who recorded the confession, was a person in authority within the Act. But the question was whether, when P.W. 5 drew the attention of the appellant to the fact that the Inquiry was a judicial proceeding to which Section 193, I.P.C. applied and that the appellant was bound to speak the truth, it could be considered to be a threat, inducement or promise emanating from a person in authority under the section. In para 24 it was considered and held that "a person summoned under Section 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanated not from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from P.W.5, who recorded the statement or P.W. 19, who was guiding the proceedings. On the contrary, the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. In the case before us there was no such threat emanating from P.W.5, who recorded the statement or P.W. 19, who was guiding the proceedings. On the contrary, the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if P.W. 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193, I.P.C. applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence." it was further held 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 does not tell the truth, he may be prosecuted under Section 193, I.P.C. For giving false evidence". The plea of the appellant therein was that he was compelled to make the statement under the threat that otherwise his mother and another brother would be prosecuted. He had further stated that he was induced to make statement on the belief that it will be used only against the second accused and not against him. These pleas of the appellant therein had been disbelieved by both the trial Court and the High Court. Therefore, it was held that even assuming that there was an inducement or threat, the appellant therein 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 had no application. The above ratio squarely applies to the facts in this case. Therefore, even on this ground also Section 24 of the Evidence Act had no application. The above ratio squarely applies to the facts in this case. The appellant was under legal duty to state the facts truthfully lest he would be liable to prosecution. The threat emanates from and is that of the statute and the officers merely enforced the law. The allegations as to threat of implication of his wife was an afterthought and he did not mention the same when he appeared before the magistrate and obtained bail 17. It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to take proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of Evidence Act. [1] Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. [2] he becomes accused of the offence under the Act only when a complain is laid by the competent customs officer in the court of competent jurisdiction or magistrate to take cognizance of the offence and summons are issued. thereafter, he becomes a person accused of the offence. [3] A statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act. [4] Though the Customs Officer is an authority within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement or the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant's surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise. [5] The collection of evidence under Section 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. [6] The self-same evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes.” (emphasis supplied) 13. The question as to whether a retracted confessional statement requires corroboration from any other independent evidence was answered thus: “25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution.” (emphasis supplied) 14. The principle of law that statement of an accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act can form the sole basis, requiring no corroboration, for conviction, was reiterated in Husen Bhenu Malad and others Vs. State of Gujarat and others ( 2003 (2) GLH 705 ) (Paragraph-25.12). 15. In Baji Abdulla Haji Ibrahim Mandhra and another Vs. Superintendent of Customs, Bhuj and others ( 1992 (1) GLH 75 ), this Court reiterated the proposition of law that the statement under Section 108, though retracted, can form the basis for conviction, if the Court finds it reliable and trustworthy (Paragraph-2). 15. In Baji Abdulla Haji Ibrahim Mandhra and another Vs. Superintendent of Customs, Bhuj and others ( 1992 (1) GLH 75 ), this Court reiterated the proposition of law that the statement under Section 108, though retracted, can form the basis for conviction, if the Court finds it reliable and trustworthy (Paragraph-2). Baji Abdulla Haji Ibrahim Mandhra was the case primarily dealing with the bail order under Section 438(2) in relation to the offence under the Customs Act. 16. In Naresh J. Sukhawani Vs. Union of India (1995 Supp. (4) SCC 663), the Apex Court reiterated dual principle of law being; (I) statement made before the custom official is not a statement recorded by a police officer under Section 161 of the Cr.P.C. and it is a material piece of evidence collected by the custom officials under Section 108; and (ii) where such statement made by a person inculpates not only himself, but also another person, it can be used as substantive evidence against another person under Section 30 of the Evidence Act. 17. Thus, the law is well settled that the statement of a person, who is subsequently arrayed as accused, but was not an accused on the date of recording of such statement under Section 108, is not the statement of an accused and the officer recording such statement is not a police officer and records such statement in adjudicatory proceedings to ascertain violation of the provisions of the Customs Act so as to fix appropriate liability upon the person alleged to have violated the law. They are thus not the police officers, within the meaning of Code of Criminal Procedure or Indian Evidence Act and consequently, no fetters as are applicable in case of police officer recording the statement will apply under the Code of Criminal Procedure or Indian Evidence Act or any other Act for the time being in force concerned with the criminal trial. Such statements if otherwise relevant under Section 24 read with Section 28 of the Indian Evidence Act are admissible in evidence and can form sole basis of conviction if the statements are found reliable and trustworthy on appreciation of evidence before it by the Court. Such statements if otherwise relevant under Section 24 read with Section 28 of the Indian Evidence Act are admissible in evidence and can form sole basis of conviction if the statements are found reliable and trustworthy on appreciation of evidence before it by the Court. Since maker of the statement under Section 108 or under similar circumstances under any other law is not an accused, there can be no fetters on the powers of the Court to apply Section 30 of the Evidence Act inasmuch as confession made by person subsequently arrayed as accused under Section 108 of the Customs Act is not the confession of an accused, but is merely a statement for the purpose of adjudication, as discussed herein-above. The retracted confession, in absence of the circumstances making it irrelevant as provided in Section 24 read with Section 29 of the Evidence Act is admissible in evidence. If no summons/warrant/process is issued to a person on the date of recording of his statement under Section 108 of the Customs Act, such person is not an accused and consequently no fetters as in the case of a person accused as provided under the Code of Criminal Procedure or the Evidence Act or any other similar law would apply in such a case. 18. The Court may now deal with the question as to whether the Court would be justified in relying upon the statements recorded under Section 108 of the Customs Act, in absence of the examination of its maker who are cited as witness before it. At the outset, it is required to be borne in mind that the Indian Evidence Act provides for admissions, judicially noticeable facts and presumptions as to documents. The Evidence Act also provides for certain circumstances under which the facts need not be proved. This Court is not concerned with the facts, the proof of which is dispensed with by mandate of law. In other words, if the law mandates that under certain circumstances, the facts are deemed to have been proved and no further proof to prove such facts is necessary, then such facts are required to be dealt with in accordance with the specific provisions dispensing with the proof of said facts. In other words, if the law mandates that under certain circumstances, the facts are deemed to have been proved and no further proof to prove such facts is necessary, then such facts are required to be dealt with in accordance with the specific provisions dispensing with the proof of said facts. This Court is, in fact strictly concerned with the contents of the documents i.e. the statements recorded under Section 108 of the Customs Act in respect of which there is no mandate in law mandating the dispensation of the proof of the contents thereof. With the above clarification, this Court may proceed to examine the question above referred. 18.1 As indicated in Haricharan (supra) only the statements falling under section 3 of the Evidence Act would constitute evidence and in absence of the case of the department that the statement made under section 108 of the Act is admissible piece of evidence, without examination of its make or those conversant with it, it is required to be examined as to whether such a statement can be placed reliance upon to bring home the guilt in the complaint lodged under the Customs Act. 18.2 Applicability of the Evidence Act in the facts of the case is not disputed by the department. Neither it is the case of the department that other different procedure dealing with the evidence in a case arising under the Customs Act is laid anywhere in the Customs Act or Rules etc. Therefore inescapable conclusion is that the Evidence Act applies to the proceedings lodged under the Customs Act and the Rules laid therein require to be strictly followed. 18.3 It is also not the case of the department that criminal procedure is inapplicable to the proceedings or that a separate and different procedure in regard to the rules of procedure is laid under the Customs Act or the rules made thereunder. Therefore, the conclusion again is inescapable that to an extent of absence of procedural provisions in the Customs Act or the rules made thereunder, the procedure contemplated under Cr. P.C. is required to be followed. 19. Therefore, the conclusion again is inescapable that to an extent of absence of procedural provisions in the Customs Act or the rules made thereunder, the procedure contemplated under Cr. P.C. is required to be followed. 19. To answer the question as to whether statements recorded under section 108 of the Customs Act in absence of examination of witnesses as provided in the Evidence Act, would constitute evidence under section 3 of the Evidence Act, a reference may be made to the expression “document” and the expression “evidence” as interpreted in interpretation clause (section 3 of the Evidence Act). For ready reference, the said clauses are reproduced hereunder: “Document”-“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. For example, a writing is a document; words printed, lithographed or photographed are documents; a map or plan is a document; in inscription on a metal plate or stone is a document; a caricature is a document. (emphasis supplied) “Evidence”- Evidence means and includes (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the court, such documents are called documentary evidence. (emphasis supplied) 19.1 A bare look at the interpretation of the expression “document” would indicate that the document is nothing but a matter expressed or described upon a substance by various means indicated in the said interpretation clause. When a statement is made under section 108 of the Customs Act and is reduced to in writing, it cannot be disputed that the writing therein is a matter expressed or described on a substance i.e. a paper in the present case. It is required to be borne in mind that the substance on which the matter is expressed is not a document but it is a matter expressed or a matter described upon a substance, by varied means like letters, figures or marks or by more than one of those means which is intended to be used or may be used for the purpose of recording the matter, is a document. 19.2 As can be seen from the interpretation clause “evidence”, the evidence may be oral statement or it may be in the form of document. To be an oral evidence, permission of the court or requisition of the court that the statements be made by witnesses in relation to the matters of fact under inquiry is necessary and to be documentary evidence, the documents must be produced for the inspection of the court. Thus, if a matter expressed or described as discussed above is produced for the inspection of the court, it would constitute documentary evidence. Therefore, when it is claimed that certain matter was expressed or described and was reduced to writing on a piece of paper i.e substance by means of letters, figures or marks etc. and is produced for the inspection of the court, such matter would constitute documentary evidence. 19.3 The question, however, will remain as to whether the court would be justified in relying upon such documents in absence of examination of its makers who are cited as witnesses. In a criminal trial, it is a settled legal position that the case must be proved against the accused beyond reasonable doubt and the burden of proof of existence of relevant fact leading to the guilt of the accused rests on the prosecution, unless otherwise, provided by law. The primary fact in issue in criminal trial, thus, would be whether the acts constituting offence were committed by the accused. In a case where a witness is said to have made the statement or expressed the matter within the meaning of the expression “document” as discussed hereinabove, it would be for the prosecution to establish that such matter was expressed by the witness. When a document is produced as an evidence to establish the guilt of the accused, the accused would have a right to dispute the truth of its contents. When a fact is within the knowledge of any person within the meaning of section 106 of the Evidence Act, the burden of proving that fact is upon that person. Therefore, when the court is called upon to inspect the evidence in the nature of a document, it would not be able to do so in absence of the person who claims a personal knowledge of its contents with him or in absence of a person who is conversant with its contents. Therefore, when the court is called upon to inspect the evidence in the nature of a document, it would not be able to do so in absence of the person who claims a personal knowledge of its contents with him or in absence of a person who is conversant with its contents. Similarly, in absence of such person, it would not be possible for the accused to put his case to such a person in his cross-examination. Furthermore, as provided under section 101 of the Evidence Act, one who asserts the existence of facts in order to seek judgment from the court as to any legal right or liability, must prove that those facts exist. Therefore, when it is claimed that a document contains the facts as indicated in the document, the burden of proof that such facts exist is upon a person who asserts the existence of such facts. Again in view of section 102 of the Evidence Act, the burden of proof lies on the person who would fail in absence of evidence as to the existence of facts. Furthermore, the burden of proving fact necessary for making an evidence admissible is on the person who wishes to give such evidence as provided in section 104 of the Evidence Act. For example, if a person wishes to prove a dying declaration by another person, he must prove death of that other person. Thus, the above stated scheme contained in part-III Chapter VII of the Evidence Act would indicate the basic requirements of the rules of evidence that one who asserts the existence of facts must prove, one who would fail in absence of evidence must give evidence in support of the facts in issue and one who has personal knowledge of the facts in issue must prove such facts in issue. Thus, if the State or statutory authority attributes doing of certain acts constituting an offence to a person accused thereof, must prove that such facts exist and in absence of such proof it would fail in its action against the accused. 19.4 The question here would be whether by mere production of a document or mere proof of its execution, its contents can be said to have been proved beyond reasonable doubt. 19.4 The question here would be whether by mere production of a document or mere proof of its execution, its contents can be said to have been proved beyond reasonable doubt. The Supreme Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import (supra) was concerned with the question as to whether mere proof of the handwriting of a document would tantamount to proof of all the contents or the facts stated in the document, if the truth of the facts stated in the document is in issue. It was held that mere proof of the handwriting and execution of a document would not furnish evidence of the truth of the facts or contents of the document. Truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Thus, a mere genuineness or existence of a document would not necessarily establish its contents to be true. The contents of the document, if in issue and relevant and are intended to be asserted for a judgment, the facts contained in such contents of the documents, must be proved by admissible evidence. Before the court acts upon its contents, it has to be satisfied about its truthfulness and relevance. 19.5 Under section 61 of the Evidence Act, contents of the document must be proved either by primary or secondary evidence and under section 62 of the Act primary evidence is a document itself produced for the inspection of the court. It is required to be borne in mind that the court, on the basis of such document produced before it for inspection, is called upon to give its judgment as to existence or non-existence of the facts stated therein. Thus, before giving judgment, the Court is required to inspect the document and obviously inspection would mean testing of the contents of the documents in the light of various provisions of law relating to evidence. The expression `inspection’ is not defined in the Evidence Act. Therefore, ordinary dictionary meaning will have to be assigned to it. Thus, before giving judgment, the Court is required to inspect the document and obviously inspection would mean testing of the contents of the documents in the light of various provisions of law relating to evidence. The expression `inspection’ is not defined in the Evidence Act. Therefore, ordinary dictionary meaning will have to be assigned to it. Some of the relevant definition of the term `inspect’, `inspection’, contained in The Law Lexicon, Second Edition, Reprint 207 (Justice Y.V. Chandrachud), can be quoted for beneficial reference: “Inspect – Inspection: Webster defines `inspect’ to mean `to look; to view or oversee for the purpose of examination; to look into; to view and examine for the purpose of ascertaining the quality or condition of the thing; to view and examine for the purpose of discovering and correcting errors, as to inspect the press or proof sheets of a book. Inspection means to look upon; to examine for the purpose of determining the quality and detecting what is wrong, and is not necessarily confined to optical observation, but is ordinarily understood to embrace tests and examinations. 19.6 Regarding the interpretation of the expression “document” in section 3 of the Evidence Act, it is to be noted that the document does not mean a substance on which the expression or description of a matter is made but it is a matter itself i.e. what is `expressed’ or `described’. Therefore, in view of above dictionary meaning, when the court inspects the document, it, in fact, looks at the matter expressed or described thereon and it is rather not concerned with its mere official examination. 19.7 Viewed in the context of the relevant provisions of the Evidence Act, when the court inspects the document it really views/overseas the matter expressed or described therein mainly for the purpose of ascertaining its quality and the truthfulness, genuineness, etc. The question then would be what is there with the Court to inspect genuineness, correctness or trustworthiness of the matter expressed or described in a document. Obviously, it is the evidence and the proof of the contents of the document. 19.8 The expressions `evidence’ and `proof’ carry a distinct meaning as contained in the interpretation clause i.e. section 3 of the Evidence Act. The expression `proved’, `disproved’ and `not proved’ as contained in interpretation clause i.e. section 3 can be reproduced for beneficial reference. Obviously, it is the evidence and the proof of the contents of the document. 19.8 The expressions `evidence’ and `proof’ carry a distinct meaning as contained in the interpretation clause i.e. section 3 of the Evidence Act. The expression `proved’, `disproved’ and `not proved’ as contained in interpretation clause i.e. section 3 can be reproduced for beneficial reference. “Proved”- A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “Not Proved”- A fact is said not be proved when it is neither proved nor disproved. 19.9. Thus, before the court reaches to the conclusion as to whether the fact is proved or not, it would be obliged to consider the matters before it and form a belief that either the facts exist or does not exist. The Court may apply the test of probable existence or non-existence of the fact from the stand point of the prudent man who may act on such facts on supposition that it either exists or does not exist. 19.10 The expression “proof” however, is not defined in the Evidence Act and therefore, one may have to resort to its legal meaning as provided in the Law Lexicon, Second Edition, Reprint 2007 (Justice Y.V. Chandrachud). The relevant definition provided in the Law Lexicon reads thus: “Proof” is merely that quantity of evidence which produces a reasonable assurance of the existence of the ultimate fact. The word `proof’ seems properly to mean any thing which serves, either immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition; and as truths differ, the proofs adapted to them differ also. `Proof’ is also applied to the conviction generated in the mind by proof properly so called. The word `proof’ seems properly to mean any thing which serves, either immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition; and as truths differ, the proofs adapted to them differ also. `Proof’ is also applied to the conviction generated in the mind by proof properly so called. (Best on evidence s. 10) (1) Anything which serves either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition (s. 51, IPC); (2) an impression taken for correction (in printing) Other definitions – Proof is that quantity of appropriate evidence which produces assurance and certainty. An affidavit of belief is not ‘proof’. Proof is defined as a sufficient reason for assenting to a proposition. Proof and evidence – Evidence is the medium of proof. Proof is the effect of evidence.” 19.11 What follows from the above is that ‘proof’ is that part of the evidence which lends assurance of the existence or non-existence of the ultimate fact and convinces the mind for the truth or falsehood of a fact or a proposition and assigns sufficient reason for assenting to a proposition. While evidence is a medium of proof, proof is the effect of evidence. 19.12. As a necessary corollary of the above discussion, while on production of a document for inspection of the court, it may constitute evidence; however, a matter or substance expressed or described on the document would partake the character of proof only when the assurance through the proof of contents of the documents is lent for the purpose of formation of the belief that the fact either exist or it does not or that the mind of the court is convinced towards acceptance or non-acceptance of the fact. In other words, in order to prove or disprove a document or statement, such proof as would lend assurance regarding trustworthiness of the contents of the document or statement must be tendered. The best person to lend such convincing assurance would be either the person at whose instance the contents in the document are recorded or who is conversant with the contents of the document. The best person to lend such convincing assurance would be either the person at whose instance the contents in the document are recorded or who is conversant with the contents of the document. Thus, mere production of a document by a person who has no knowledge of its contents or who is not conversant with the truthfulness or otherwise of its contents would not constitute a proof of the truthfulness of the contents of the document or a statement. For the purpose of testing of truthfulness of the statement or contents of the documents, procedure is provided in sections 135, 137, 138, in particular, amongst other provisions contained in Chapter X of the Indian Evidence Act. According to the said provisions, a witness would enter the witness box to offer examination-in-chief and on completion of the examination-in-chief, he has to be offered for his crossexamination and there may be his re-examination if the facts of the case so warrant. 19.13 There may, however, be certain statements or facts which may be admitted and relied on as a proof. Such statements may be similar to those referable to section 32 of the Evidence Act or section 138B of the Customs Act or similar such provisions of law which permit its admissibility, subject to certain defined rules of evidence. Such statements are termed as admissible hearsay evidence as an exception to the general rule that the hearsay evidence cannot be admitted. A necessary corollary which follows from above discussion is that unless warranted by a legal provision, hearsay evidence cannot be admitted. The statement made orally or anything produced in writing in the court not by a person who has the knowledge of truthfulness or otherwise of its contents or who is conversant with its truthfulness or otherwise, but by other person who claims to have heard such maker of the statement is nothing but hearsay evidence and in absence of specific provision in the Evidence Act or similar such law warranting admission of such evidence, it cannot be admitted in evidence. 19.14 In the facts of the present case, it is not in dispute that the statements of certain persons made under section 108 of the Customs Act but not examined as witness, were not only relied on but substantially the conviction of the petitioners is based upon such statements. 19.14 In the facts of the present case, it is not in dispute that the statements of certain persons made under section 108 of the Customs Act but not examined as witness, were not only relied on but substantially the conviction of the petitioners is based upon such statements. Strenuous effort is made by the learned counsel for the Customs department to sustain such evidence by relying on section 138B of the Customs Act. 19.15 It is true that section 138B of the Customs Act envisages the situation akin to section 32 of the Evidence Act and on satisfaction of the conditions mentioned in section 138B of the Customs Act, statement made and signed by a person before any Gazetted Officer of Customs during the course of inquiry or proceedings under the Customs Act would be relevant for the purpose of proving the truth of the facts which such statement contains. According to the learned counsel for the Customs, statements of witness Dhanji Govind, brother of accused No. 1, witness Rana Ramji, brother of accused No. 4 and witness Karsan Rupa, truck driver of the accused should be admitted in evidence as such persons were kept out of the way by the adverse party i.e. accused and that they were prevented from being examined as witnesses before the trial court. In this regard, reference may be made to the decision of this Court in the case of Suraiya Mohammed Ikbal Gulamhussain & Anr. v. Assistant Collector of Customs, Kutch-Bhuj & Anr., [ 2005 (2) GLR 1033 ] relied upon by the learned counsel for the petitioner wherein also the court held that section 138B can be invoked when a person who made the statement is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. 19.16 Having perused the record of the case, there is nothing to show that the said persons were prevented from being examined as witnesses or were kept out of the way by the accused. 19.16 Having perused the record of the case, there is nothing to show that the said persons were prevented from being examined as witnesses or were kept out of the way by the accused. Before section 138B of the Customs Act can be relied on for the above purpose, the factual foundation showing that the pre-conditions for invocation of section 138B of the Customs Act were satisfied, must be laid. From the facts on record, no such foundation is borne out nor the learned counsel for the Customs is able to place her fingers on any such factual foundation. Bereft of such factual foundation, the courts below appear to have relied on the statements of the above referred persons not examined as witnesses under misconception of law that the statements under Section 108 of the Customs Act constitute conclusive evidence requiring no proof of its contents. If the witness relies upon on the contents of the documents, he will have to justify the truthfulness and genuineness of such contents during the examination, crossexamination and re-examination. It may not be necessary for a witness to specifically refer to a document concerned. Suffice it would be for him to make a statement in oral evidence, in conformity with the contents of the document. 19.17 No provision of law enabling the Court to draw irrebutable presumption vis-a-vis the statements recorded under section 108 of the Customs Act is brought to the notice of this court by the respondents. 19.18 In the instant case, the statements recorded under Section 108 of the Customs Act were pressed into service as conclusive piece of evidence and the witnesses who could have proved the contents expressed in the document were not examined. According to the respondents, such statements contained incriminating facts against the accused. Such incriminating facts were relied upon without examining the witnesses, who were stated to have made such statements. The facts, which were sought to be proved on the mere basis of such statements were that the petitioners had imported the prohibited articles of foreign origin in violation of the notification prohibiting such imports. Therefore, the most relevant fact contained in the afore-stated statement was whether the petitioners were importers of the disputed articles. The facts, which were sought to be proved on the mere basis of such statements were that the petitioners had imported the prohibited articles of foreign origin in violation of the notification prohibiting such imports. Therefore, the most relevant fact contained in the afore-stated statement was whether the petitioners were importers of the disputed articles. The person who stated in the above statement that the petitioners had imported or had connived or aided in the import of disputed articles was the most important witness whose statement was required to be tested in the light of the various provisions of the Evidence Act. Such person, if examined, would have revealed various relevant facts favouring the prosecution or the accused and on the basis of the statements made by such witness in the Court, the Court would have been able to determine, as to whether the facts stated in the statement recorded under Section 108 of the Customs Act, existed or not, or were trustworthy or not, or were relevant or not. On examination of such evidence, the mind of the Court could have been convinced either for acceptance of the statement or its rejection. Therefore, in absence of the examination of the witness in light of the provisions of the Evidence Act, it cannot be said that the contents of the statement recorded under Section 108 of the Customs Act and relied upon by the respondents were proved beyond reasonable doubt. 20. It is noticed that substantial reliance by the Court below was placed upon the statements of the person cited as witnesses, but who were not examined by the prosecution. As discussed in greater detail, such course of law was impermissible. If those statements are taken off record, what remains is the non-inculpatory statements of some of the accused and other evidence in the form of testimonies of the customs official and the evidence in the form of collection of muddamal, articles, panchnama, etc. It is noticed from the evidence of customs official that they had no other substantial evidence except the statement of the accused and the statement of the witnesses not examined before the Court. Other evidence pressed into service was the receipt of the prior information and a successful raid, apprehension of the articles and the notification aforestated, etc. 21. It is noticed from the evidence of customs official that they had no other substantial evidence except the statement of the accused and the statement of the witnesses not examined before the Court. Other evidence pressed into service was the receipt of the prior information and a successful raid, apprehension of the articles and the notification aforestated, etc. 21. As far as question of sanction is concerned, it is noticed from the record that though there existed discrepancy relating to serial number of the file, it was not the only fact relied upon by the sanctioning authority for according sanction. The Trial Court rightly found that the sanction was accorded after considering all the relevant facts emerging from the facts of the case. At this juncture, a reference may be made to State of Gujarat Vs. Patira Packaging (Firm) and others (1999 (2) GLH 761); a case dealing with the issue of sanction under Section 20(1) of the Prevention of Food Adulteration Act, 1954. It was held that consent need not contain detailed reasons in its support and what is required is narration of basic facts that constitutes the offence and that such facts should be apparent on the face of it. Be it noted that it would be suffice if the sanctioning authority in its sanction order makes it apparent as regards facts involved in the case and the necessity of sanction. It is not required to give elaborate reasons in support of the sanction. The argument to the contrary therefore must fail. 22. The next issue is as to whether mere mark of foreign origin on the goods can be taken as proof of the fact of the foreign origin of the goods. This issue is no more res integra in view of the decision of this court in Assistant Collector Customs, Baroda v. Mukbujusein Ibrahim Pirjada 1969(10) GLR 682 relied on by this court in Criminal Revision Application No. 682 of 2004 in which judgment and order was pronounced on 4.9.2015. This court in Mukbujusein (supra) was concerned with section 123 of the Customs Act and one of the issues raised before the court was whether foreign origin of goods was conclusively proved. This court in Mukbujusein (supra) was concerned with section 123 of the Customs Act and one of the issues raised before the court was whether foreign origin of goods was conclusively proved. This court observed thus: “It is well settled that mere markings could not be taken as proof of the fact of the foreign origin of the goods as such markings and labels would be hearsay evidence”. Relying on the decision in Comptroller of Customs v. Western Lectric Co. Ltd., 1966 A.C. 367, this court found “that Their Lordships of the Privy Council in terms held at p. 369 that such markings must be excluded from consideration as being no more than hearsay, when the question arose as to the country of origin of the goods.” 22.1 In the present case also, except the marks of foreign origin of the goods in question, no foundation was laid in the trial court to establish that the goods were of foreign. As seen in greater detail, the relevant facts on the basis of which the party desires the Court to give a judgment, if not proved by party concerned the same cannot partake character of evidence. In the instant case, respondent no.2-customs department apprehended the prohibited articles with the plea of their being of foreign origin. According to the prosecution, the defined articles of foreign origin was prohibited. Thus, the burden under Sections 100, 101 and 102 of the Evidence Act to establish the character of the articles being of foreign origin rested on the prosecution and inference to mere mark on the articles being of foreign origin without any substantial material establishing its origin, would not suffice. Therefore, the contention raised by the learned counsel for the petitioner, in this regard, needs to be upheld. 23. The next question is whether any evidence was rendered before the Court below that the articles in question were prohibited articles as indicated above. The prosecution relied upon three notifications; the first being 20th July 1984 which prohibited the import of the nature of the articles in question. It is not disputed that the offence against the accused was detected on 14th January 1983. The case of the prosecution was that on that date the prohibition operated. Therefore, the relevant fact was whether on 14th January 1983 the articles of the nature in question were prohibited articles. It is not disputed that the offence against the accused was detected on 14th January 1983. The case of the prosecution was that on that date the prohibition operated. Therefore, the relevant fact was whether on 14th January 1983 the articles of the nature in question were prohibited articles. Since, the prosecution asserted the said fact, the onus to prove it rested on it. Concededly, no proof was rendered to establish the prohibition of the articles in question on the aforesaid date. The submission of the learned counsel for Customs Department that in fact the principal notification was of the year 1969 and other notification produced on record was unnecessary takes the case neither here nor there inasmuch as the said argument is unable to resolve the factual aspect as to whether on the aforesaid date the articles in question were prohibited articles, in absence of production of proof of the notification of 1969. There is nothing in the notification aforesaid that leads to an inference of its retrospective applicability. It is a settled legal position and it is evident from the relevant provisions of the Constitution of India that a person cannot be convicted of an act which was not an offence when committed. The prosecution pressed into service the aforesaid notification and not the notification of 1969 and thus, it was not established before the Courts below that the law in existence I.e. notification in existence prohibiting the import of the articles in question was violated by the petitioners, exposing them to the criminal liability. The Courts below miserably failed to appreciate the aforesaid legal position and thus, caused a miscarriage of justice. 24. The learned counsel for the respondent-Customs while heavily relying upon (i) Amar Chand Agarwala Vs. Shanti Bose and another ( AIR 1973 SC 799 ), (ii) Gagan Bihari Samal and another Vs. State of Orissa (JT 1991(3) SC 63), (iii) State of Karnataka Vs. Marigowda ( AIR 1982 SC 1171 ) and (iv) Gulam Hussain Shaikh Vs. S. Reynolds, Supdt. of Customs, Garmgoa ( 2002 (1) SCC 155 ), would contend that the revisional jurisdiction under Section 397 of the Cr. P.C. being limited, this Court should not enter into the arena of appreciation of evidence. Marigowda ( AIR 1982 SC 1171 ) and (iv) Gulam Hussain Shaikh Vs. S. Reynolds, Supdt. of Customs, Garmgoa ( 2002 (1) SCC 155 ), would contend that the revisional jurisdiction under Section 397 of the Cr. P.C. being limited, this Court should not enter into the arena of appreciation of evidence. True it is that in the revisional jurisdiction, the Court should not enter into the arena of reappreciation of the evidence, but at the same time, it is settled legal position that if it is shown that the judgment and order rendered by the Lower Court is bereft of evidence or the evidence, which is not legally acceptable or the evidence, which is perverse to the facts of the case is relied upon or a glaring error causing miscarriage of justice is committed, the Revisional Court can exercise its jurisdiction, of course without appreciating the evidence. If, under the revisional jurisdiction, the Court looks at the evidence and finds serious infirmities warranting interference, as required under Section 397 of the Cr. P.C., it would certainly be justified in doing so. 25. As seen in greater detail, no evidence was adduced to prove the contents of the statements recorded under Section 108 of the Customs Act; nor was the evidence brought on record to prove that the articles in question were either prohibited articles or were of foreign origin. Thus, the findings of the Courts below were bereft of evidence justifying the interference of this Court under Section 397 of the Cr.PC. 26. In view of the above, the petitions are required to be allowed for the following reasons: 1. That in absence of examination of the person making statements under Section 108 of the Customs Act or those who were conversant with such statements, the contents of such statements cannot be said to have been proved beyond reasonable doubt. 2. In absence of the proof of notification prohibiting the import of disputed articles on the date of the alleged offence, it cannot be said that the petitioners had imported or connived or aided in the import of the prohibited articles of foreign origin. 3. In absence of cogent evidence proving the facts that the articles allegedly imported by the petitioners were of foreign origin, it cannot be said that the petitioners had imported or connived or aided in the import of the articles of foreign origin. 27. 3. In absence of cogent evidence proving the facts that the articles allegedly imported by the petitioners were of foreign origin, it cannot be said that the petitioners had imported or connived or aided in the import of the articles of foreign origin. 27. In view of the above discussion, the applications are allowed and the impugned judgment and order of conviction and sentence passed by the Trial Court against the petitioners cannot be sustained. The same is therefore quashed and set aside and the petitioners are ordered to be acquitted of the charges levelled against them. The bail bond and surety shall stand discharged. Application allowed.