SURESH B. GHADGE Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE brief facts of the case are that on the basis of a specific tip off, officers of Customs searched Air India Aircraft bound for Dubai in the presence of security staff of Air India and two panch witnesses and found eight packets containing foreign currency totally amounting to Rs. 69,89,644/ - from the back rest seat No. 35E, 35F and 47F. Thereafter Customs officers kept a discreet surveillance on the aircraft and as soon as all the passengers boarded the aircraft, Customs officers re -entered the aircraft with the panchas and found one male passenger by name Shri Suresh Bhaguram Ghadge and one lady passenger, Smt. Sunita Suresh Ghadge wife of Shri Suresh Bhaguram Ghadge occupying seats No. 35E and 35F whereas seat No. 47F was found vacant. Both Shri Suresh Bhaguram Ghadge and his wife were questioned about the recovery of foreign currency from the back rest seat occupied by them but they denied any knowledge of the same and its concealment. In subsequent interrogation, in the presence of panchas, Shri Suresh Bhaguram Ghadge admitted that he was asked by one Vijay Tayade, Traffic Assistant of Air India Limited to escort the said packets concealed in the back rest of seats allotted to him and to his wife for a monetary consideration. As per Shri Suresh Bhaguram Ghadge's statement, Shri Vijay Tayade, Tariff Assistant was called and identified as Vijay Tayade by Shri Suresh Bhaguram Ghadge, the person who had proposed to him to escort the packets concealed in the back rest of seats for a monetary consideration of Rs. 8,000/ - and also as the person who had issued them the boarding passes. Shri Vijay Tayade also identified Shri Suresh Bhaguram Ghadge in the presence of panchas and admitted that he had issued the boarding passes of seat Nos. 35E and 35F to Snri Suresh Bhaguram Ghadge and his wife. Enquiries revealed that seat No. 47F was not allotted to any passenger. Shri Suresh Bhaguram Ghadge in his statement recorded under Section 108 of Customs Act, 1962 on 22.12.1995, inter alia stated that he was working as a handyman in Air India Central Canteen for the past 22 years, that he cannot read or write any language, that he knew Shri Vijay Tayade for the last six months, that Shri Tayade used to come to the Air India Canteen, that two months ago Shri Tayade contacted him and offered him a proposal to carry a parcel to Dubai for which Shri Tayade offered him Rs. 8,000/ -, that he agreed to do the same, that as agreed on 8.4.1995 he along with his daughter had gone to Dubai, that though Shri Tayade was not on duty, he had accompanied them to the check in counter to complete the formalities, that Shri Tayade had asked him to collect the packet under his seat, and deliver the same to one Mr. Abdul who would collect the same from Hotel Emirates where Shri Suresh Bhaguram Ghadge would be staying, that he did the job accordingly and was paid Rs. 8,000/ - by Abdul. As regards, recovery of foreign currency from the back rest of seats No. 35E and 35F on 21.12.1995, he stated that during the last week of December, 1995, Shri Tayade had met with him and had asked him to do the same for him again, that he agreed to Shri Tayade's proposal and accordingly booked tickets for himself and his wife for Dubai, that on 21.12.1995, Shri Tayade was at the check in counter, that they were allotted seats No. 35E and 35F by Shri Tayade, that he was told by Shri Tayade that there was a total of six packets of foreign currency affixed to the back rest of seats allotted to them, that these packets would be retrieved by Shri Tayade's contact man in Dubai, that the contact man would hand over Rs. 8,000/ - to him after identifying himself. The statement of Shri Tayade was also recorded where he denied knowing Shri Suresh Bhaguram Ghadge and having asked him to carry foreign currency as deposed by Shri Suresh Bhaguram Ghadge. Both Shri Suresh Bhaguram Ghadge and Tayade were arrested and produced before the Additional Chief Metropolitan Magistrate wherein Shri Tayade retracted his statement. However, no retraction was made by Shri Suresh Bhaguram Ghadge. It was only on 29.12.1995 when Shri Suresh Bhaguram Ghadge was released on bail that he retracted his statement. However another statement was recorded on 16.1.1996 wherein he reiterated his earlier statement and admitted that his statement dated 22.12.1995 was his voluntary statement and the facts stated by him in the said statement were true and correct. There is no retraction to this statement till now except general retraction through a reply to the show cause notice vide letter dated 20.7.1996. Proceedings were launched under Customs Act and Enforcement Act and simultaneously prosecution proceedings were also launched against them. Shri Suresh Bhaguram Ghadge who is the appellant in the case before us has been acquitted by the Prosecution Court as well as under the proceedings launched under FERA. However, under the Customs Act a penalty of Rs. 5 lakh has been imposed on the basis of confessional statement given by him.

(2.) THE learned Advocate for the appellant submits that the appellant has been acquitted by the Additional Chief Metropolitan Magistrate for want of evidence and this order has been upheld by the High Court. Further the proceedings under FERA were also dropped by the Additional Commissioner for want of any corroborative evidence except confessional statement of Shri Suresh Bhaguram Ghadge which was retracted. Reference was invited to the observation made by the Hon'ble High Court states "The prosecution witness No. 6 in his cross -examination has stated that he does not remember whether accused No. 1 Shri Ghadge and his wife told the Customs Officers in the aircraft that they were knowing about concealment of the seized foreign currency and travellers' cheques. Further it is also noted that the said witness has not clearly stated that at the time of panchnama whether accused No. 1 told at whose instance he was carrying foreign currency and travellers' cheques." The learned Advocate further stated that the Additional Chief Metropolitan Magistrate in para 17 of the order has referred to cross examination of the panchas and noticed discrepancy and certain denials by the panchas about the facts recorded in the statement regarding name of the person to whom the foreign currency was to be delivered and whether accused No. 2 had made a statement in his presence. In view of these observations, it was submitted that the statements recorded, cannot be considered voluntary when it has been retracted and that the appellant being an illiterate person did not know the contents of the statements recorded from him and therefore in the absence of any other corroborative evidence, charge against the appellant cannot sustain and no penalty is imposable. He refers to the decision of the Apex Court in the case of Francis @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram 2007 ALL SCR 675 wherein it has been stated that retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration, but it may be laid down as general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. In view of this, he submits that penalty may be set aside.

(3.) THE learned DR on the other hand submits that the appellant was produced before the Additional Chief Metropolitan Magistrate on 23rd December, 1995 wherein he did not retract his statement and it is after release on bail, on the probable advice of the Advocate, he retracted the confessional statement, though there was no such retraction before the Customs Officers. He was again examined by the Customs Officers on 16.1.1996 wherein he admitted the contents of the earlier statement to be true and voluntary which statement has not been retracted till today. The appellant is a repeated offender as he has admitted of one such illegally carrying of foreign currency in the past also. The content of the panchnama are such that it cannot be tutored and therefore are to be considered as voluntary. Reference was also invited to the observation of the Additional Chief Metropolitan Magistrate in the last 3 lines of para 17 of his order wherein it has been stated that prosecution witness Shriniwas Dharap in his cross examination has stated that the accused No. 1 disclosed to the Customs Officers that he was to get some monetary consideration for carrying the foreign currency and travellers' cheques to Dubai. This corroborates that the appellant has agreed to carry the money and cross examination has not brought out that any force or coercion was used while recording the statement. In view of this, penalty has been rightly imposed on the appellant. It was further submitted that the yardstick for admissibility of evidence are different in prosecution proceedings and quasi judicial proceedings and therefore even though this evidence may not have been admitted by the Additional Chief Metropolitan Magistrate, it cannot be held to be inadmissible in quasi judicial proceedings. A reference was also invited to the decision of the Supreme Court in the case of Surjeet Singh Chhabra v. Union of India wherein it was held that confessional statement made before the Customs Officers though retracted within six days is an admission and binding since Customs Officers are not Police Officers.