Case Note & Summary
The special leave petition arose from the order dated 7th August, 1995 passed by the Bombay High Court in W.P. No. 1334 of 1995. The petitioner, Naresh J. Sukhawani, challenged the affirmation of an order confiscating foreign currency and imposing penalty under the Customs Act, 1962. Customs officials at Sahar International Airport, Bombay apprehended Sukhawani Solanki while attempting to export foreign exchange out of India valuing Rs. 13,27,212/-. Solanki's statement recorded under Section 108 of the Customs Act stated that Subhash Dudani had given him the currency to hand over to Mr. Kenny at Hongkong. Dudani was then apprehended and his statement under Section 108 stated that the foreign exchange given to Solanki was received from Rajesh Sukhawani. Thereafter, customs officials traced the petitioner and searched his premises on December 21, 1991 in his absence, but nothing incriminating was recovered. Additional Collector, after enquiry and giving opportunity to the petitioner, confiscated the foreign currency and imposed a penalty of Rs. 1 lakh. The Collector in appeal set aside that order. On suo motu revision, the Government reversed the Collector and restored the Additional Collector's order, which was affirmed by the High Court. The Joint Secretary, as revisional authority, held that the evidence and statement given by Dudani incriminated the petitioner, established with reference to photographs and other intrinsic material. The petitioner contended that the statement of a co-accused could be used only to corroborate other evidence under Section 30 of the Indian Evidence Act, 1872, and not as substantive evidence without independent corroboration. Except Dudani's statement, there was no other independent evidence. The Court noted that a statement made before Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminated the petitioner inculpating him in the contravention of the provisions of the Customs Act. The Court held that the statement could certainly be used to connect the petitioner with the contravention, as Dudani's statement clearly inculpated not only himself but also the petitioner. It could be used as substantive evidence connecting the petitioner with the export of foreign currency out of India. The Court found no illegality in the order of confiscation of foreign currency and imposition of penalty and no ground warranting reduction of fine. Accordingly, the special leave petition was dismissed.
Headnote
A) Customs Law - Evidentiary Value of Statement Under Section 108 of Customs Act - Statement recorded by Customs official under Section 108 is not a statement under Section 161 CrPC and can be used as substantive evidence - Customs Act, 1962, Section 108; Code of Criminal Procedure, 1973, Section 161 - The petitioner contended that co-accused statement could only be used for corroboration under Section 30 Evidence Act; the Court held that since Section 108 statement is a material piece of evidence collected under Customs Act, it can be used substantively to connect the petitioner with contravention; no independent corroboration required - Held that there was no illegality in relying on such statement. (Paras Not mentioned) B) Evidence Law - Use of Co-Accused Statement - Section 30 of Indian Evidence Act, 1872 applies to confessions of co-accused in a trial and requires corroboration, but it does not govern statements recorded under Section 108 Customs Act, which have independent statutory basis - Indian Evidence Act, 1872, Section 30 - The petitioner's argument that Dudani's statement was only corroborative was rejected; Section 108 statement inculpating both himself and petitioner was substantive evidence - Held that the material could certainly be used to connect petitioner. (Paras Not mentioned) C) Customs Law - Confiscation and Penalty - Sufficiency of evidence and quantum - Customs Act, 1962, Section 108 - The Additional Collector's order confiscating foreign currency and imposing penalty of Rs.1 lakh was restored by revisional authority and affirmed by High Court; Supreme Court found no illegality and no ground for reduction of fine - Held special leave petition dismissed. (Paras Not mentioned)
Issue of Consideration
Whether a statement recorded under Section 108 of the Customs Act by a co-accused can be used as substantive evidence against the petitioner without independent corroboration, given Section 30 of the Indian Evidence Act, 1872 requires corroboration for confession of co-accused, and whether the confiscation of foreign currency and penalty were justified.
Final Decision
Supreme Court dismissed the special leave petition, holding that statement under Section 108 Customs Act can be used as substantive evidence, and upheld confiscation of foreign currency and penalty of Rs. 1 lakh. No ground for reduction of fine.
Law Points
- Statement recorded under Section 108 Customs Act is material evidence
- not a statement under Section 161 CrPC
- such statement can be used as substantive evidence connecting accused
- Section 30 Evidence Act does not apply to statements under Customs Act
- no independent corroboration required
