Case Note & Summary
The appellant was the eighth accused in Criminal Case No. 240 of 1974 before the Judicial Magistrate, First Class, Umbergaon, charged with offences under Sections 135(1-A) and 135(1-B) of the Customs Act, 1962 and Section 25 of the Gold Control Act, 1968. The trial court convicted and sentenced him to six years rigorous imprisonment and a fine of Rs.5,000 for each offence under the Customs Act, and two years rigorous imprisonment and a fine of Rs.2,000 for the Gold Control Act offence, with sentences to run concurrently. The High Court of Gujarat confirmed the conviction but reduced the Customs Act sentence to five years rigorous imprisonment. The appellant then preferred appeals by special leave to the Supreme Court. The prosecution case arose from information that contraband gold was being brought into India. Customs officers maintained vigil at Village Jampore in Moti-Daman and observed two persons, Accused 10 and 11, coming to the coast from the sea. After interrogation, the officers learned that signals were to be given from the coast, after which a boat mid-sea would come ashore. Officers caused such signals to be given but the boat did not approach. Red signals were seen flashing from the appellant's house nearby, and three persons were found there flashing signals. The next day, officers searched the boat mid-sea and found Accused 1 to 7 on board. It was learned that sixteen packets of gold had been dumped into the sea at a short distance; these were recovered and found to contain 32,000 tolas of gold. Statements were recorded under Section 108 of the Customs Act from the accused. A complaint was filed by the Assistant Collector of Customs, Valsad on 29.03.1974 against eleven accused. Accused No.10 was absconding, Accused No.3 had expired, and Accused No.9 pleaded guilty, was convicted and sentenced to two years rigorous imprisonment; after release, he testified as PW27. PW27 stated that he had been the appellant's driver since 1966-67, that he met Accused No.1 on 31.01.1970, and that gold was to be transferred from a vessel to a boat and brought to Jampore School for the appellant. An unknown person sent by the appellant accompanied him to facilitate the transfer. The next morning, he learned that the boat and gold had been seized, and he went to Bombay to inform the appellant. Accused No.1 in his statements under Section 108 implicated the appellant, stating that PW27 was the appellant's driver and requested him to bring gold from the vessel, assuring payment near Jampore School. In a later statement, Accused No.1 said the appellant helped fit the boat's machine and that amounts payable for the work could be adjusted towards its cost. The trial court and High Court found the statements voluntary and admissible. PW15, a customs official, knew PW27 personally as the appellant's driver. The appellant argued that the entire case was unbelievable, that no material connected him to the occurrence, and that the courts relied solely on the uncorroborated testimony of PW27, a co-accused. He also challenged the admissibility of the Section 108 statements. The Supreme Court rejected these contentions, observing that a co-accused's confession cannot be treated as substantive evidence and can be used only as corroborative after other evidence is satisfactory, as held in Haricharan Kurmi v. State of Bihar. In this case, the statements under Section 108 of various accused, especially Accused No.1, implicated the appellant and were admissible as per Ramesh Chandra v. State of West Bengal and K.I. Pavunny v. Assistant Collector. PW27's evidence was corroborated by these statements and by PW15. The Court found no infirmity in the lower courts' appreciation of evidence and dismissed the appeals, affirming the conviction and sentence as modified by the High Court.
Headnote
A) Criminal Law - Evidentiary Value of Co-accused Testimony - Confession of co-accused cannot be treated as substantive evidence; may be used only as corroborative after other evidence is satisfactory - Customs Act, 1962, Sections 108, 135(1-A), 135(1-B); Gold Control Act, 1968, Section 25 - The appellant argued that the case rested solely on the uncorroborated testimony of PW27, a former co-accused. Relying on Haricharan Kurmi v. State of Bihar, the Court observed that a co-accused's confession is not substantive evidence and can be used only when the other evidence is found satisfactory. In the present case, the Court found that statements recorded under Section 108 of the Customs Act implicated the appellant and PW27's evidence served as corroboration. Held that the conviction was not based solely on uncorroborated co-accused testimony and was sustainable (Paras 5-6,8). B) Customs Law - Admissibility of Statements - Statements recorded under Section 108 of Customs Act are admissible in evidence - Customs Act, 1962, Section 108 - The appellant challenged the admissibility of statements recorded under Section 108. The Court referred to Ramesh Chandra v. State of West Bengal and K.I. Pavunny v. Assistant Collector and held that statements under Section 108 are admissible if voluntary and recorded after explaining legal provisions without threat or inducement. The lower courts found the statements voluntary and duly proved by officials. Held that the statements were admissible and could be relied upon to establish guilt (Paras 6-7).
Issue of Consideration
Whether the conviction of the appellant under Sections 135(1-A) and 135(1-B) of the Customs Act, 1962 and Section 25 of the Gold Control Act, 1968 was sustainable on the basis of statements recorded under Section 108 of the Customs Act and the testimony of PW27, a former co-accused; and whether statements recorded under Section 108 of the Customs Act are admissible in evidence.
Final Decision
The Supreme Court dismissed the appeals, affirming the conviction and sentence as modified by the High Court. The appellant's conviction under Sections 135(1-A) and 135(1-B) of the Customs Act, 1962 and Section 25 of the Gold Control Act, 1968 stood confirmed, with the Customs Act sentence being five years rigorous imprisonment as reduced by the High Court.
Law Points
- Statements recorded under Section 108 of the Customs Act are admissible in evidence if voluntary and made after explaining legal provisions without threat or inducement
- Confession of a co-accused cannot be treated as substantive evidence and can be used only as corroborative after other evidence is satisfactory
- Concurrent findings of fact by trial court and High Court are normally accepted unless perverse
- Offences under Sections 135(1-A)
- 135(1-B) Customs Act and Section 25 Gold Control Act are established by corroborated accomplice evidence.
