Holding

A confessional statement recorded by a Customs Officer under Section 108, when the person is not yet an accused, is admissible under Section 24 of the Evidence Act and, if voluntary and truthful, may form the basis of conviction even if later retracted, without the need to corroborate every detail.

Summary

The appellant was found with 200 gold biscuits concealed in his house and gave a written confession to Customs officers under Section 108 of the Customs Act, which he later retracted. The issue before the Supreme Court was whether such a statement, recorded before the appellant became an accused, was admissible under Section 24 of the Evidence Act and could form the basis of conviction, and whether a retracted confession required corroboration. The Court held that a Customs officer is an "authority" within Section 24, but a person is only an accused after a complaint and summons are issued; therefore the statement was admissible. Since the statement was made voluntarily and under statutory compulsion, it was not barred by Section 24 and could be used for conviction even though retracted, provided it is truthful and generally corroborated. The Court affirmed the High Court's conviction, modified the sentence to a fine with default imprisonment, and allowed the appeal in part.

Issues considered

The admissibility of a confessional statement recorded by a Customs Officer under Section 108 of the Customs Act when the declarant is not yet an accused under Section 24 of the Evidence Act.
Whether a retracted confession can be the sole basis for conviction.
Whether a retracted confession must be corroborated by independent evidence on material particulars.
Whether a Customs Officer qualifies as an "authority" within the meaning of Section 24 of the Evidence Act.
Whether the statement was obtained by threat, inducement or promise, rendering it inadmissible.

Legislation cited

Code of Criminal Procedure, 1973s. 386
Constitution of Indias. 134, s. 136, s. 20(2), s. 20(3)
Customs Act, 1962s. 108, s. 135
Gold (Control) Act, 1968s. 85, s. 86
Indian Evidence Act, 1872s. 101, s. 102, s. 103, s. 104, s. 105, s. 106, s. 24, s. 30

Subjects

customs officerconfessionretracted confessionadmissibilitySection 108Section 24evidencecorroborationstatutory compulsioncustoms actgold control act

Judgment

K.I. PAVUNNY A
v.
ASSISTANT COLLECTOR (HEAD QUARTER),
CENTRAL EXCISE COLLECTORATE, COCHIN

FEBRUARY 3, 1997
B
{K. RAMASWAMY, S. SAGHIR AHMAD AND
G.B. PATTANAIK, JJ.)

Customs Act, 1962: Section 108.
c
Person suspected by a Customs Officer/authority of having committed
an offence under the Act-Status of-:-Held: such a person was not an accused
at that stage-He became an accused only when summons were issued by a
competent Court/Magistrate when a complaint was lodged by competent
Customs Officer-Hence, his statement recorded during an inquiry under
S,108 or d:Jring confiscation proceedings was not that of an accused withir, D
the meaning of 5.24 of the Evidence Act-Evidence Act, 1872, S.24.

Person suspected of having committed an offence under the Act-Con-
fessional statement-Recorded by-<:ustoms Officer-Status of such Officer
and admissibility of such statement in evidence-Held: Such an Officer, E
though not a Police Officer, was an authority within the meaning of S. 24 of
the Evidence Act-However, a confessional statement recorded by reason of
statutory compulsion or given voluntarily by the accused pursuant to his
appearing after summons or on surrender, could not be characterised to have
been obtained by threat, inducement or promise-Hence, such confessional
statement was admissible in evidence-such confessional statement although F
subsequently retracted, if found voluntary and truthful, could f omi basis for
conviction-lt was not necessary that each detail in the retracted conjession
be corroborated by independent evidence-However, prudence and practice
required that court would seek assurance from other evidence to corroborate
the retracted confession-Evidence Act, 1872, Ss. 24 to 30. G
Statement-Object of recording-Stated.

-J Section 135-0ffence-Jnvolving gold biscuits which were subsequently
confiscated proved--f'enalty-Fine of Rs.10,000 and Rs.5,000 respectively
imposed by Supreme Court in substitution of sentence of imprisonment for 1 H
797
798 SUPREME COURT REPORTS ~
[1997) 1 S.C.R. \
A year/six months-Further direction for 2 months' and 1 month imprisonment
in case of default issued.

Evidence Act, 1872: Section 24.

Confessions caused by inducement, threat or promise-Held: confes-
B sional statement given under statutory compulsion or after issuance of sum-
mons or after sun-ender, amounted to confession.

Sections 24, 30 and 101-106-Use of threat, inducement or
promise-Alleged-Held: burden of proof was on accused, though it was not _..
'
as high as on the prosecution-Further, once the accused was able to prove
c the facts creating reasonable doubt that the confession was not voluntary or
was obtained by threat, coercion or inducement, the burden would be on the
prosecution to prove that the confession was made voluntarily.

Crimin al Law:

D Mens rea--Whether an essel!tial ingredient of the offence under s.135
of the Customs Act or Ss. 85 and 86 of Gold (Control) Act-Question left
open-Customs Act, 1962, S.135--<Jold (Control) Act, 1968, Ss. 85 and 86. ""' ......

Criminal Procedure Code, 1973: Section 386.

E Reasons-For disagreeing with trial court-Recording of-By Appellate
Court-Held: to be given only in respect of relevant aspects and not necessarily
on eve1y aspect.

Section 24-Central agency-Sensitive cases under Customs Act, Gold
(Control) Act and such other Act~Assignment of-By Union of
F ....
India-Held: Such cases should be assigned only to counsel having experience
and ability in that branch of law to defend their cases so that public justice
might not suffer and economy of country not put in jeopardy-Constitution
of India, 1950, A1ts. 134 and 136-Customs Act, 1962, S.135--<Jold (Control)
Act, 1948, Ss. 85(1)(a) and 86.
G
Practice and Procedure:

Constitution of India, 1950: Articles 136 and 141.
:,-
Concession-Wrong concession by party-on question of law-Held:
H not binding on Supreme Court-Customs Act, 1962, S.130E.
PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. 799

Words and Phrases: A

"Accused''-Meaning of-In the context of S.24 of the Evidence Act,
1872.

The appellant was acquitted of the charges under Section 135(l)(j)
of the Customs Act, 1962 and Sections 85(1)(a) and 86 of the Gold B
(Control) Act, 1968, but a Single Judge of the High Court set aside the
acquittal and convicted the appellant of the aforesaid offences and sen-
tenced him to undergo imprisonment for a period of 1 year and 6 months
respectively. Hence this appeal.

According to the prosecution, Gold biscuits of foreign marking were
c
recovered from the compound of the appellant's house in the presence of
the appellant and two panch witnesses, PW-3 and another, after digging
got done by two Customs officials, PW- 2 and PW-5. The gold biscuits were
kept concealed in a wooden box buried in the ground visible through the
window of the appellant's bedroom. The appellant gave, i.n bis own hand- D

- · writing, a confessional statement on the same day before the Customs
officials. In the proceedings for confiscation, the gold biscuits were confis-
cated. But the imposition of penalty was set aside. Thereafter, a complaint
was .filed by PW-I, the Collector of Customs, and the same was refiled. The
appellant was apprehended and was released on bail. The prosecution case E
hinged upon the retracted confessional statement of the appellant, the
recovery proceedings and evidence of witnesses, PWs 1 to 5 for proof of
recovery of the contraband from the compound of the appellant's house.

The question before this Court, pursuant to a reference from a
two-Judge Bench, was whether the confessional statement of the appellant F
given to the Customs Officers under Section 108 of the Customs Act, 1962,
though retracted at a later stage, was admissible in evidence and could
form the basis of conviction and whether a retracted confessional state-
ment required corroboration on material particulars from independent
evidence. G
Allowing the appeal in part, this Court

HELD: 1.1. Customs Officer is not a police officer; nor is he em-
powered to file charge-sheet under Section 173 of the Criminal Procedure
Code, 1973 though he conducts enquiry akin to an investigation under H

.
800 SUPREME COURT REPORTS (1997] 1 S.C.R.
~
A 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 Customs Act, 1962 and for imposition of penalty
prescribed thereunder which would be self evident from Section 108(4) of
the Act. [811-E]

B Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461,
followed.

1.2. The object of the Act empowering Custonis Officers to record
the evidence under Section 108 is to collect information of the contraven-
e tion 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 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 the Evidence
D Act, 1872. [818-D]

1.3. 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. The appellant was not a
E person accused of the offence under the Act when he gave his statement
under Section 108 of the Act in the office of the Superintendent of Customs,
PW-2. The assumption that the appellant was an accused on the date is
erroneous, since as on that date no formal complaint had been laid against
the appellant. Therefore, a statement recorded or given by the person
suspected of having committed an offence during the inquiry under Section
F 108 of the Act or during confiscation proceedings is not a person accused of
the offence within themeaning ofSection24 of the Evidence Act. [818-F-G]

Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
and lllias v. Collector of Customs, Madras, [1969] 2 SCR 613, followed.

G 2.1. A person whose statement, on being suspected by the
authority/officer of having committed an offence, is recorded by that
authority/officer, becomes accused of the offence under the Act only when
a complaint is laid by the competent Customs Officer in the Court of
competent jurisdiction or Magistrate to take cognizance of the offence and
H summons are issued. Thereafter, he becomes a person accused ·of the

.
PAVUNNYv. ASS1T. COLLECTOR, (H.Q.) C.E.C. 801

offence. [818-F) A
Maqbool Hussai11 v. State of Bombay, [1953) SCR 730 and Thomas
Da11a v. State of Pu11jab, [1959) Supp. 1 SCR 274 followed.

Veera Ibrahim v. State of Maharashtra, [1976) 2 SCC 302 and State of
Pu11jab v. Barkat Ram, [1962) 3 SCR 338, relied on. B
2.2. 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 pur-
suant to his appearing either after issuance of summons or after the
appellant's surrender, such statement cannot be characterised to have c
been obtained by threat, inducement or promise. [818-H]

2.3. While giving a confessional statement under Section 108 of the
Act, the appellant was under a legal duty .to state the facts truthfully lest
he would be liable to prosecution. The threat emanates from and is that D
of the statute and the officers merely enforced the law;

Percy Rustomji Basta v. State of Maharashtra, AIR 1971 SC 1087,
relied on.

Vallabhdas Liladhar v.Asst. Collector of Customs, [1965) 3 SCR 854, E
referred to.

3.1. The contention of the appellant that fairness of judicial process
requires that such statements given by the accused should be strictly,
meticulously and minutely scrutinised as they emanate at the threat of
persons in authority and are inadmissible in evidence under Section 24 of F
the Evidence Act, does not merit acceptance for the reason that the
primary object of enquiry under the Act is to initiate proceedings for
confiscation of the contraband and collection of excise duty and the
persons acquainted with the facts are duty bound to speak the truth or to
give statement truthfully upon the subject respecting which the person is G
examined or made statement at the pain of prosecution for perjury or
produce such document or other things. In the light of the legislative policy
the question of unfairness or untrustworthiness of process does not arise
and such a plea cannot be given countenance or acceptance. [817-E-G]

Poolpa11di v; Superi11te11de114 Ce11tral Excise a11d Ors., [1992] 3 SCR H
802 SUPREME COURT REPORTS [1997] 1 s. C.R.
A 247, relied on.

Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
and lllias v. Collector of Customs, [1969] 2 SCR 613, referred to.

3.2. The collection of evidence under Section 108 and other relevant
B provisions relating to search and seizure are only for the purpose of taking
further steps for confiscation of contraband and imposition of penalty. 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. [819-A]
c 3.3. There is no prohibition under the Evidence Act to rely upon the
retracted confession to prove the prosecution case or to mdke 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
D the retracted confession. It is not necessary that there should be cor-
roboration 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;
whether it was not obtained by threat, duress or promise, If the Court is
E 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 th;;t the retracted confession is true, that part of the
incnlpatory 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. On the
F facts and in the circumstances of the case, the High Court was right in its
conclusion that the statement of the appellant recorded under Section 108
of the Customs Act was voluntary statement and was not influenced by
threat, duress or inducement etc. [823~E-H]

G Nishi Kant Iha v. State of Bihar, [1969] 1 SCC 347 and Balbir Singh
v. State of Punjab, AIR (1957) SC 216 followed.

Bhagwan Singh v. State of Punjab, AIR SC 2145; Hem Raj v. State of
Ajmer, [1954] SCR 1133; Girdhari Lal Gupta & Am: v. D.N. Mehta, Asst.
Collector of Customs & Anr., [1970] 2 SCC 530; Naresh !. Sukhawani v.
H Union of India, [1995] Supp. 4 SCC 663 and Swjeet Singh Chhabra v. Union
PAVUNNYv. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 803

of India, (1997) 89 ELT 464, relied on. A

Chandrakant Chimanlal Desai v. State of Gujarat, [1992] 1 SCC 473;

-
Harcharan Kunni & logia Hajam v. State of Bihar, AIR (1964) SC 1184;
Hamam Haj Abdulla v. State of Maharashtra, AIR 1968 SC 832° and Kash-
mira Singh v. State of M.P., AIR 1952 SC 159, referred to.
B
State of U.P. v. Deoman Upadhyaya, [1961] 1 SCR 14; Satbir Singh &
Anr. v. State of Punjab, [1977] 3 SCR 195 and Sevantilal Karsondas Modi
v. State of Maharashtra & Anr., [1979] 2 SCR 1160, held inapplicable.

4.1. It is true that in a trial and proprio vigore in a criminal trial, C
courts are required to marshal the evidence. It is the duty of the prosecu-
tion to prove the case beyond reasonable doubt. The evidence may consist
of direct evidence, confession or circumstantial evidence. In a criminal
trial punishable under the provisions of the IPC it is well settled legal
position that confession can form the sole basis for conviction. If it is
retracted, it must first be tested whether confession is voluntary and D
truthful inculpating the accused in the commission of the crime. Confes-
sion is one of the species of admission dealt with under Sections 24 to 30
of the Evidence Act, and Section 164 of the Code. It is an admission against
the maker of it, unless its admissibility is excluded by some-of those
provisions. [820-E-G] E

4.2. If a confession is proved by unimpeachable evidence and if it is of
a voluntary nature, it, when retracted, is entitled to a high degree of value as
its maker is likely to face the consequences of confession by a statement
affecting his life, liberty or property. Burden is on the accused to prove that
the statement was obtained by threat, duress or promise like any other F
person. If it is established from the record or circumstances that the
confession is shrouded with suspicious features, then it falls in the realm of
doubt. The burden of proof on the accused is not as high as on the prosecu-
tion. If the accused is able to prove tJle facts creating reasonable doubt that
the confession was not voluntary or it was obtained by threat, coercion or G
inducement etc., the burden would be on the prosecution to prove that the
confession was made by the accused voluntarily. [820-H, 821·A·B]

Bhagwan Singh v. State of Punjab, AIR (1952) SC 214, followed.

5.1. It is not necessary in this case to broach further whether mens H
804 SUPREME COURT REPORTS [1997] 1 S.C.R.
A rea is an essential ingredient for proving the commission of the offence
under Section 135 of the Act or Sections 85 and 86 of the Gold (Control)
Act since none has raised such contention. What is required to be con-
sidered is whether voluntary statement given by the appellant constitutes
sole basis to prove the commission of the offence under Section 135(1)(j)
B of the Act. [826-D]

State of .Gujarat & Anr. v. Acharya D. Pandey & Ors., [1970] 3 SCC
183 and Director of Enforcement v. M.C. T.M. Corporation Pvt. Ltd. & Ors.,
[1996] 2 sec 471, referred to.

C 5.2. It is true that in criminal law, as also in civil suits, the trial Court ·
_ and the appellate Court should marshal the ·facts and reach conclusion,
on facts. In a criminal case, the prosecution has to prove the guilt beyond
doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt
of a doubting Thomas or of a weak mind is not the road to reach the result.
D If a Judge on objective evaluation of finding that the prosecution has not
proved its case beyonda reasonable doubt, then the accused is entitled to
the benefit of doubt for acquittal. On scanning the evidence and going
through the reasoning of the Single Judge it has to be held that the Single
Judge was right in accepting the confessional statement of the appellant
to be a voluntary one and that it could form the basis for conviction. The
E Magistrate had dwelt upon the controversy, no doubt on appreciation of
the evidence but not in proper or right perspective. Therefore, it was not
necessary for the Single Judge to made through every reasoning and give
his reasons for his disagreement with the conclusion reached by the
Magistrate. On relevant aspects, the Single Judge has dwelt upon in detail
F and recorded the disagreement with the Magistrate and reached his con-
clusions. Therefore, there is no illegality in the approach adopted by the
Single Judge. Hence, the Single Judge was right in his findings that the
pr~secution has proved the case base1l upon the confession of the appel-
lant. [808-H, 829-A-B, E-G] .i.

G 6.1. The appellant has committed the offences under Section
.135(1)(j) of the Act and Sections 85(1)(a) and 86 of the Gold (Control)
Act, 1968 and instead of being committed to jail, the appellant should be
sentenced to pay fine or Rs. 10,000 and Rs. 5,000/· respectively for the two
aforementioned offences, within 4 months from the date of this judgment.
H In default, the appellant shall undergo imprisonment for a period of 2
I
,-.l

PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 805

-~ months and 1 month respectively. (829-D] A

6.2. The persons involved in contravention of the provisions of the
.... Act are white-collared offenders and organised gangsters and they get the
best of talent in the profession to assist them. The Union of India should
take care to entrust these sensitive cases of far reaching effect, in par-
ticular on question of law, to counsel who have experience and ability in B
that branch of law to defend their cases: Lest it is public justice that suffers
4 and economy of the country is put to jeopardy.

Ed.: The remarks made in this judgment against Shri R.R. Misra,
Senior Counsel for the Respondent, have been deleted by a subsequent
order dated February 24, 1998.
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
543 of 1988.

;.
From the Judgment and Order dated 13.7.88 of the Kerala High D
Court in Cr!. A. No. 501 of 1986.

D.D. Thakur, R. Satish, Ms. Anne Mathew, N.N. Bhatt and T.G.N.
Nair for the Appellant.

R.R. Misra, Y.P. Mahajan and Ms. Sushma Suri for the Respondent. E
Judgment of the Court was delivered by

K. RAMASWAMY, J . This appeal by special leave has come up
..(
before this Bench, pursuant to a reference under date November 9, 1994
passed by a two-Judge Bench, to consider whether the confe~sional state- F
ment of th~ appellant given to the Customs officers under Section 108 of
the Customs Act, 1962 (for short, the 'Act'), though retracted at a later
stage, is admissible in evidence and could form basis for conviction and
whether retracted confessional statement requires corroboration on
material particulars from independent evidence? In support of the refer-
G
ence, the learned Judges have cited Kashmira v. The State of Madhya
_,. Pradesh, AIR (1952) SC 159 and Chandrakant Chimanlal Desai v. State of
-!.. Gujarat, [1992) 1 SCC 473.

The facts in this case are that at 8.00 a.m. on December 6, 1980, 200
gold. biscuits of foreign marking were recovered from the compound of the H
806 SUPREME COURT REPORTS (1997] 1 S.C.R.
A appellant's house in his presence after digging got done by the Customs
official, PW-2, T.K. Rajasekaran, Superintendent of Customs, and PW-5,
N. Gopalan Nambiar, Inspector and two panch witnesses, PW-3 and
another. The same were kept concea.led in a wooden box hurried in the
ground visible through the window of his bed-room. The appellant gave, in
his own hand-writing, confessional statement, Ex. P-4, at 1.00 p.m. on the
B
said date before the Customs officials. In the proceedings for confiscation,
200 gold biscuits, since unclaimed, were confiscated. But the imposition of .
penalty was set aside which became final. Thereafter, the complaint was
filed by PW-1, the Collector of Customs on May 15, 1982 and it was refiled
on January 1, 1985. The appellant was apprehended on June 19, 1982 and
C was released on bail. The prosecution case hinges upon the retracted
. confessional statement, Ex. P-4, the recovery proceedings, Ex. P-3, and
evidence of witnesses, PWs-1 to 5 for proof of recovery of the contraband
from the compound of the appellant's house, the Magistrate by his judg-
ment dated March 29, 1986 acquitted the appellant of the charges under
D Section 135 (1)(i) of the Act and Sections 85 (l)(a) and 86 of the Gold
(Control) Act, 1968. On appeal, the learned Single Judge of the Kerala
High Court by the impugned .Judgment dated July 13, 1988 set aside the
acquittal and convicted the appellant of the aforesaid offence and sen-
tenced him to undergo imprisonment for a period of 1 year and 6 months
respectively and both the sentences were directed to run concurrently.
E
Shri Thakur, learned senior counsel for the appellant, has contended
that the confessional statement, Ex. P-4 was obtained by coercion and
threat of implicating his wife in the offences and, therefore, the appellant
had not made voluntary statement. The recovery of the gold biscuits from
F his compound was shrouded with several suspicious features. He further
argued that the panch witness, PW-3 was involved in smuggling activities
and initially a warrant to search his house was obtained but when the same
proved unsuccessful, recovery came to be made from the house of the
appellant. They went to the compound and straightaway got the spot
G located and <lugged up the place from which the gold biscuits were
recovered. That would go to show that PW-3 had implanted them in the
compound of the appellant for safe custody thereof. Unless the appellant
had conscious possession of the contraband, he could not be convicted of
the offence. The Magistrate has given valid and cogent reasons in support
H of his conclusion that the prosecution failed to prove the case beyond
PAVUNNY "· ASSTf. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY .T.] 807
reasonable doubt. The High Court, without properly appreciating the A
reasons given by the Magistrate and without finding whether or not those

-
1
reasons were sustainable on the basis of the evidence on record, inde-
pendently considered the evidence and reached the conclusion that the
prosecution had proved its case against the appellant beyond reasonable
doubt. The approach adopted by the High Court is not correct in law. He B
also contended that the learned Judge should have first marshalled the

- ~
facts and circumstances to conclude whether prosecution has inde-
pendently proved it case de hors Ex. P-4 which could be considered first
to be a voluntary confession or was obtained by threat, coercion or induce-
ment. Even in reaching the conclusion that it was a voluntary confession it C
could not by itself form the basis for conviction. It could be used only to
corroborate other independent evidence which should inculpate the appel-
lant in the commission of the offence. On proof of those facts, the retracted
confession could be used as evidence corroborative to satisfy the con-
science of the Court that the prosecution has proved its case beyond D
reasonable doubt from other evidence on record. In support thereof, he
placed reliance on Kashmira Singh 's case and Chandrakant Chimanlal
Desai's case. In support of his contention that Customs officers, PW-2 and
PW-5 are persons in authority under section 24 of the Evidence Act, he
cited Vallabhdas Liladhar & Ors. v. Assistant Collector of Customs, (1965] E
3 SCR 854. He further contended that the moment the Customs officer
had taken the appellant into custody, he had become a person accused of
the offence and that the confession made during the custody, obtained by
coercion and threat of implication of his wife into the crime was not
voluntary and consequently Ex. P-4 is not admissible in evidence under F
o!
Section 24 the Evidence Act. In support thereof, he placed reliance on
State of U.P. v. Deoman Upadhyaya, (1961] 1 SCR 14. The adduction of
evidence by the prosecution must be tested on the touchstone of fairness
of procedure and its trustworthiness. The confessional statement, Ex. P-4
obtained by threat and coercion being inadmissible, it could not be pressed G
into service and the prosecution could not make it a base for proving the
offences charged against the appellant. The possession of contraband
....
should be conscious possession which must independently be proved
beyond reasonable doubt. When the Magistrate considered all the evidence
and gave him the benefit of doubt, the High Court did not test the H
"
~i
s08 SUPREME COU~T REPORTS (1997) 1 S.C.R.
A correctness of all the reasons of the Magistrate, reversal of the acquittal by ~

the High Court is bad in law. In support thereof, he relied upon Satbir
Singh & Anr. Etc. Etc. v. State of Punjab, [1977] 3 SCR 195.
"
r
When we asked the learned counsel appearing for the Union of India
B whether Customs officer is a person in authority , the learned counsel
started arguing that under Section 108 of the Act the officers are em-
powered to record the statement of the accused and then he pointed out
that under the Act, though they were authorised to have the statement of
the accused recorded under Section 108, in view of the ratio of Vallabhdas
~
-
c Liladhar case they are persons in authority. He started conceding to the
question whether confession is inadmissible in evidence and prosecution
could rely thereon, he started conceding to the question. We are con-
strained to observe at the stage that though the two-Judge Bench referred
the question of law to a three-Judge Bench, the learned counsel did not
make any attempt to investigate into the questions of law and was on the
D brink of making concessions and proceeded to argue on that premise. Since
wrong concession, in particular on question of law, does not bind this Court
and there are plethora of precedents covering the field, we pointed out to
the counsei that he rendered no assistance to the Court constraining it to
independently investigate into the matter by itself. Accordingly, we closed
E the arguments. Without meaning any disrespect to the learned counsel, we
are at pains to point out that the persons involved in contravention of the
provisions of the Act are white-collared offenders and organised gangsters
get the best of talent in the profession to assist them. The Union of India
should take care to entrust these sensitive cases of far reaching effect, in
particular on question of law, to counsel who have experience and ability
F
.
in that branch of law to defend their cases. Lest it is public justice that
suffers and economy of the country is put to jeopardy. Unfortunately, the
counsel did not make any effort to analyse the provisions of the Act nor
did he make investigation into question of law from the decisions rendered
by this Court. At this juncture, it is further relevant to point out that when
G the Union of India has its panel of counsel, they should see to it that work
is assigned to the counsel who can competently argued the case in that
behalf lest, for lack of assistance, investigation and marshaling the ques- .... ,
tions of fact and law, public justice tends to suffer. We would greatly
appreciate the counsel appearing for the appellant who placed for con-
H sideration all aspects of the case on law and facts. It is, therefore, for the
PAVUNNYv. ASS1T. COLLECTOR, (H.Q.) C.E.C. (K. RAMASWAMY J.j 809
Secretaries of the Departments of Law & Justice and Finance to look into A
--- the matter and set their house in order; equally, the Attorney General of
India should also see that the affairs in the Central Agency in the Supreme
Court are organised accordingly. We have pointed out .all this only to
express our deep anxiety as the burden on the Court is multiplied to
undertake unto itself the task of investigating into all aspects to consider
B
the case so as to reach satisfactory conclusion.

-.,J
The primary question, as referred to us for consideration, is: whether
the retracted confessional statement, Ex. P-4, by the appellant is inadmis-
sible in evidence under Section 24 of the Evidence Act and what is the
scope for its consideration? Since we did not receive any assistance on the c
question of law, we have independently investigated the case law ourselves
and to the extent we could lay our hands, we are dealing with the relevant
case law in.that behalf. Section 24 of the Evidence Act deals with admis-
sibility of the confession. It reads as under :
D
"24. Confession caused by inducement, threat or promise, when
irrelevant in criminal proceeding. - A confession made by an
accused person is irrelevant in a criminal proceeding, if the making
of the confession appears to the Court to have been caused by any
inducement, threat or promise, having reference to the charge
against the accused person, proceeding from' a person in authority E
and sufficient, in the opinion of the Court, to give the accused
person grounds, which would appear to him reasonable, for sup-
posing that by making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against
-..l h"un. " F

A bare reading of the above provision would indicate that for ap-
plication of Section 24 of the Evidence Act, the following ingredients are
required to be established: (a) the statement in question is a confession;
(b) such confession has been made by an accused; (c) it has been made to
a person in authority; (d) it was obtained by reason of any inducement, G
threat or promise proceeding from a person in authority; (e) such induce-
;; ment, threat or promise must have reference to the charge against the
accused person; and (t) the inducement, threat or promise must be, in the
opinion of the Court is sufficient to give an accused person grounds which
would appear to him to be reasonable by supposing that by making it he H
. 810 SUPREME COURT REPORTS [1997) 1 S.C.R.

A would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.

The question, therefore, is: whether the appellant was a person
accused of an offence on December 6, 1980 at 1.00 p.m. when the confes-
B sional statement was given by the appellant, admittedly, in his own hand-
writing, (Ex. P-4 being the English translation thereof) on the even date or
when he was summoned by PW-2 and PW- 5 to the Customs office on the
same day? Section 108(1) of the Act empowers any Gazetted officer of
Customs to summon any person whose attendance he considers necessary
either to give evidence or to produce a document or any other thing in any
C enquiry which such officer is making in connection with the smuggli11g of
any goods. The person so summoned has an opportunity of locus penitiae
to give true and correct statement and also an opportunity to reflect upon
and tender the evidence, be it recorded or given in his own hand-writing.
Under sub-section (3), all persons so summoned shall be bound to attend
D either in person or by an authorised agent, as such officer may direct, and
to state the truth upon any subject respecting which they are examined or
make statement and produce such documents and other things as may be
required. However, by operation of the proviso to sub-section (3), exemp-
tion under Section 132 of the Code of Civil Procedure, 1908 shall be
applicable to any requisition for attendance under the said section. Sub-
E section (4) envisages that every such inquiry, as aforesaid, will be deemed
to be a judicial proceeding within the meaning of Section 193 and Section
228 of the Indian Code (IPC).

In Ramesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461
F 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
G 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
H prohibited and for adjudging confiscation of those goods. For collecting
PAVUNNY v. ASSTI. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 811

evidence the Customs Officer is entitled to serve summons to produce a 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
B
detain, the power to search or obtain a search warrant and the power to
collect evidence are vested in the Customs Officer for enforcing com-
pliance 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 c
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 Cus-
toms Act, the predecessor of the Act. The ratio therein equally applies to
the powers exercised by the Customs Officer under the Act. The Act D
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- E
evident from sub-section (4) of Section 108.

The question then 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 F
"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 G
considered this question in Directorate of Enforcement v. 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 has sur-
rendered before a Magistrate and was arrested under Section 38 of Foreign
Exchange Regulation Act, the Magistrate had jurisdiction to authorise his H
l, \

812 SUPREME COURT REPORTS [1997] 1 S.C.R.

A 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
B Ramesh Chandra Melita's case (supra), at page 740, Constitution Bench
held tha_t Customs Officer does not at the stage of enquiry accused the
person suspected of infringing the provision 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
C Customs Act In lllias v. Collector of Customs, Madras, [1969] 2 SCR 613
another Constitution Bench had held that Customs authorities have
been invested under the Act with many powers of a police officer in
matter relating to arrest, investigation and search, which the customs
officers did not have under the Sea Customs Act. Even though the
D 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 618 that
E 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,
p documents or things without warrant from the Magistrate.

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 Superin-
tendent of Customs, PW-2. The question then is: as to when the appellant
G became an accused of the offence? This Court in Veera Ibrahim v. 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
H section 135(a) and Section 135(b) of the Act. In that case the appellant
PAVUNNYv. ASSlT. COLLECTOR, (H.Q.) C.E.C. [K RAMASWANIY J.] 813
was initially arrested by the police on December 12, 1967 on suspicion of A
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'.l .R. nor did
the police open the packages or prepare inventories of the goods
packed therein. They dropped further proceedings but informed the
B
Customs authorities, who ope~ed the packages and on inspection
finding them contraband goods, seized them under a panchnama.
They took the appellant an 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 c
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 Con-
stitution. This Court held that he was not an accused person of an
offence at that time and confession was not inadmissible. But on facts D
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 conviction under Section 135 was upheld. Ratio
of Ramesh Chandra Mehta's case was applied.
E
InMaqbool Hussain v. 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 Cusc · F
toms 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 his 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. Barkat Ram,
[1962] 3 SCR 338 a three-judge Bench per majority held that the confes- G
sion 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 Ramesh Chandra Mehta's case and in lllias
case. The following four propositions were laid in the judgment and
approved in lllias case (supra) : . ·H
814 SUPREME COURT REPORTS [1997] 1 S.C.R.
A "(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 deter-
mining the action to be taken in the interest of the revenue
B
of the country by way of confiscation of goods on which no
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
c 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
D are d a limited character and have a limited object of
safeguarding the revenues of the State and the statute itself
refers t!J police officers in contradistinction to customs of-
ficers.

E (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
office 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."
F
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
G Customs officers were not police officers under the Act. Equally, in
Ramesh 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.

In Thomas Dana v. The State of Punjab, [1959] Supp. 1 SCR 274,
H another Constitution Bench was concerned with the question whether the
)._
PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 815

.-4.-
conviction under the Sea Customs Act, after the confiscation proceedings A
became final, was violative of the Article 20 (2) of the Constitution (double
jeopardy). The Constitution Bench held that it was not violative of Article
·,
20(2) since the two proceedings were independent and distinct of each
other. One is for confiscation for infringement of the provisions of the Act
and the second is in respect of charge of criminal offence. Accordingly, we
B
have no hesit.ation to hold that the appellant was not accused of an offence
when he gave in his own hand-writing his confessional statement, Ex. P-4.

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) c
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 inadmis- D
sible 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 ques-
tion then is : whether by reason of the authority under the Act in p~rticular E
Section 108, the statement of the appellant is inadmissible under Section
24 of the Evidence Act? In Percy Rustomji Basta v, The State of
Maharashtra, AIR (1971) SC 1087, a Bench of two -Judges considered the
question whether by reason of the recording to 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
F
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. G
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 H
816 SUPREME COURT REPORTS (1997) 1 S.C.R.
A 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
B 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
C 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
D in authority that is hit by Section 24 of the Evidence Act. In order to attract
the bar, it has to be such an inducement, threat or promise, which should
·lead the accused to suppose that "by making it he would gain any advantage
or avoid any evil of temporal nature in reference to the proceedings against
him''. In the case before us, what is it that the appellant has been told? He
has been told that the law requires him to tell the truth and if he does not .·
E tell the truth, he may be prosecuted under Section 193, l.P.C. for giving
false evidence". The plea of the appellant therein was that he was com-
pelled 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
F 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
G 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. The appellant was under legal duty to state the facts
truthfully test he would be liable to prosecution. The threat emanates from
H and is that of the statute and the officers merely enforced the law. The
PAVUNNY v. ASSTI. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 817

allegations as to threat of implication of his wife was an afterthought and A
+ he did not mention the same when he appeared before the Magistrate and
obtained bail

...
.' In Poolpandi Etc. Etc. v. Supen·ntendent, Central Excise and Ors. Etc.
Etc., [1992) 3 SCR 247 a three-Judge Bench was to consider whether the B
appellant therein was entitled to the presence of a counsel at the time of
recording of his .statement under Section 108 of the Act. In that context,
this Court considered the ratio of Ramesh Chandra Melita's case and Illias
case (supra) and held that "just, fair and reasonable test" could not be
extended to a person whose statement was required to be recorded under
Section 108 of th9 Act and the failure to give counsel's assistance is not C
violative of either Article 21 or Article 20 (2) or Article 20(3) of the
Constitution. In that context, it was further held at page 247 that the
purpose of inquiry under the Act and other similar statutes "will. be
completely frustrated if the whim of the persons in possession .of useful
information for the department are allowed to prevail. For achieving the D
object of such an enquiry if the appropriate authorities be of the view that
such persons should be. dissociated from the atmosphere and the company
of persons who provide encouragement to them in adopting a non-
cooperative attitude to the machineries of law, there cannot be any
legitimate objection in depriving them of such company''. The contention
of Shri Thakur that fairness of judicial process requires that such state- E
ments given by the accused should be strictly, meticulously and minutely
scrutinised as they emanate at the threat of persons in authority and are
inadmissible in evidence under Section 24, does not merit acceptance for
the reason that the primary object of enquiry under the Act is to initiate
proceedings for confiscation of the· contraband and collection of excise p
duty and the persons acquainted with the facts are duty bound to speak
the truth or to give statement truthfully upon the subject respecting which
the person is examined or made statement at the pain of prosecution for
perjury or produce such document or other things. In the light of the
legislative policy the question of unfairness or untrustworthiness of process
does not arise and such a plea cannot be given countenance or acceptance. G

Ramanlal Bhogilaal Shah & Anr. v. D.K Guha & Ors., [1973) 1 SCC
696 was cited in support of the contention that when the person summoned
under Section 108 of the Act was in the company of the Customs Officer
he was an accused and that, therefore, the appellant therein was entitled H
818 SUPREME COURT REPORTS [1997] 1 S.C.R.
A to the protection. That case is distinguishable from the present case.
Therein, the appellant was arrested under the detention law. The Enfor-
cement authorities had got information of the contraband. The search was
following by seizure of the documents. A case was registered on November
8, 1971 under Section 154 of the Code and on November 25, 1971 an order
B permitting further investigation was obtained from the Chief Presidency
Magistrate. The FIR disclosed offence under section 420, IPC and Section
423 of the FERA etc. When summons were issued on April 17, 1972, it was
contended that he was an accused and that he could not be compelled to
give evidence against himself violating Article 20 (3) of the Constitution.
On those facts, it was held that testimonial compulsion was prohibited
C under Article 20 (3).
'
It would thus be clear that the object of the Act empowering Customs
Offices to record the evidence under Section 108 is to collect information
of the contravention of the provisions of the Act or concealment of the
D 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 initiate 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 the Evidence Act.
E
(1) Though the authority/officer on suspecting a person of having
committed that crime under the Act can record his statement, such a
person per force is not a person accuse(! under the Act. (2) He becomes
accused of the offence under the Act only when a complaint is laid by the
p competent Customs Officer in tlie 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
G 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
H characterised to have been obtained by threat, inducement or promise. (5)
PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. (K. RAMASWAMY J.] 819
The collection of evidence under Section 108 and other relevant provisions A
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.
B
It is true, as pointed out by Shri Thakur, that PW-2 admitted in
cross-examination that they treated the appellant as an acctised and
decided to prosecute the appellant. But the above evidence requires to be
tested in the light of the above legal position. The assumption of PW-2 that
the appellant was an accused as on December 6, 1980, is erroneous, since C
as on that date no formal complaint had been laid against the appellant.
Therefore, it cannot be considered that on December 6, 1980, the appellant
was an accused of the offence under section 24 of the Evidence Act.

Next question for consideration is : whether such statement can form D
the sole basis for conviction? It is seen that, admittedly, the appellant made
his statement in his own hand-writing giving wealth of details running into ·
five typed pages. Some of the details which found place in the statement
were specially within his knowledge, viz., concealment of the 200 biscuits
in his earlier rented house till he constructed the present house and shifted
his residence and thereafter he brought to his house and concealed the E
same in his compound; and other details elaboration of which is not
material. The question then is : whether it was influenced by threat of
implicating his wife in the crime which is the sole basis for the claim that
it was obtained by threat by PW-2 and PW-5? In that behalf, the High
Court has held that it could not be considered to be induced by threat that F
his wife will be implicated in the crime and accordingly disbelieved his plea.
It is seen that admittedly after the appellant gave his statement, he was
produced before the Magistrate though no complaint was filed and was
released on bail. He did not complaint to the Magistrate that Ex. P-4
statement was given under inducement, threat or duress. It was raised only
subsequently making accusations against PW-5, the Inspector of Customs. G
Therefore, obviously it was only an afterthought. The High Court, there-
fore, rightly has not given any weightage to the same. It is true that the
Magistrate has given various reasons for disbelieving the evidence of PW-3,
the panch witness who had also, at one point of time, indulged in smug:
gling. It is unlikely that PW-3 would bring 200 gold biscuits of foreign H
820 SUPREME COURT REPORTS [1997] 1 S.C.R.
A marking and conceal them in the compound of the appellant without
+
appellant's knowledge for safe custody. It is not his case that he had
facilitated PW-3 in concealing them in his compound. The place 0f con-
cealment of the contraband is also significant at this juncture. It is just near
and visible frcim the window of his bed-room through which he or family
members could always watch anyone frequenting the place where the
B
contraband
.
was concealed. This fact becomes more relevant . .
when we
consider that after concealment of the contraband in the compound one
would ensure that others having access to the compound may not indulge
in digging arid'carrying away the same. As soon as the appellant and/or the
members of his family had sight of such visitor or movement by others, they
C would immediately catch hold of such person or. would charge them.
Obviously, therefore, it would be the appellant who had concealed 200 gold
biscuits of foreign marking in his compound at a place always visible from
his bedroom window. Therefore, the High Court was right in its conclusion,
though for different reasons, that Ex. P-4 is a voluntary statement and was
D not influenced by threat, duress or inducement etc. Therefore, it is a
voluntary statement. given by the appellant and is a true one.

The question then is: whether the retracted confessional statement
requires corroboration from any other independent evidence? It is seen.
that the evidence in this case consists of the confessional statement, the
E recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that
in a trial and proprio vigore in a criminal trial, courts are required to
marshal the evidence. It is the duty of the prosecution to prove the case
beyond reasonable doubt. The evidence may consist of direct evidence,
confession or circumstantial evidence. In a criminal trial punishable under
p the provisions of the IPC it is now well settled legal position that confession
can form the sole basis for conviction. If it is retracted, it must first be
tested whether confession is voluntary and truthful inculpating the accused
in the commission of the crime. Confession is one of the species of
admission dealt with under Sections 24 to 30 of the Evidence Act and
Section 164 of the Code. It is an admission against the maker of it, unless
G its admissibility is excluded by some of those provisions. If a confession is
proved by unimpeachable evidence and if it is of voluntary nature, it when
retracted, is entitled to high degree of value as its maker is likely to face
the consequences of confession by a statement affecting his life, liberty or
property. Burden is on the accused to prove that the statement was
H obtained by threat, duress or promise like any other person as wa~ held in
PAVUNNY v. ASSTI. COLLECTOR, (H.Q.) C.E.C. [K RAMASWAMY J.] 821
Bhagwan Singh v. State of Punjab, AIR (1952) SC 214, para 30. If it is A
+ established from the record or circumstances that the confession is
shrouded with suspicious features, then it falls in the realm of doubt. The
burden of proof on the accused is not as high as on the prosecution. If the
accused is able to prove the facts creating reasonable doubt that the
confession was not voluntary or ·it was obtained by threat, coercion or
B
inducement etc., the burden would be on the prosecution.to prove that the
confession was made by the accused voluntarily. If the Court believes that
the confession was voluntary and believes it to be true, then there i s no
legal bar on the Court for ordering conviction. However, rule of prudence
and practice does require that the Court seeks corroboration of the
retracted confession from other evidence. The confession must be one c
inculpating the accused in the crime. It is not necessary that each fact or
circumstance contained in the confession is separately or independently
corroborated. It is enough if it receives general corroboration. The burden
is not as high as in the case of an approver or an accomplice in which case
corroboration is required on material particulars of the prosecution case.
Each case would, therefore, require to be examined in the light of the facts
· and circumstances in which the confession came to be made and whether
or not it was voluntary and true. These require to be tested in the light of
given set of facts. The high degree of proof and probative value is insisted
in capital offences.
E
In Kashmira Singh's case the co-accused, Gurcharan Singh made a
confession. The question arose whether the confession could be relied
upon to prove the prosecution case against the appellant Kashmira Singh.
In that context, Bose, J. speaking for Bench of three Judges laid down the
law that the Court requires to marshall the evidence against the accused F
excluding the confession altogether from consideration. If the evidence de
hors the confession proves the guilt of the appellant, the confession of the
co-accused could be used to corroborate the prosecution case to lend
assurance to the Court to convict the appellant. The Court considered the
evidence Jed by the prosecution. de hors the confession of co-accused and G
!J.eld that the evidence was not sufficient to bring home the guilt of
appellant Kashmira Singh of the charge of murder. The appellant was
acquitted of an offence under Section 302 IPC but was convicted for the
offence under Section 201 IPC for destroying the evidence of murder and
sentenced him to seven years rigorous imprisonment. This decision was
considered by a four-Judge Bench in Balbir Singh v. State of Punjab, AIR H
822 SUPREME COURT REPORTS (1997) 1 S.C.R.

A (1957) SC 216 wherein it was held that if there is independent evidence,
besides that confession, the rule that the confession could be used only to +-
corroborate the other evidences loses its efficacy. Therefore, it was held
that if the retracted confession is believed to the voluntary and true, it may
form the basis of a conviction but the rule of practice and prudence
B requires that it should be corroborated by independent evidence. Therein
also, for the charges of capital offence, the trial Court did not accept the
confessional statement of co-accused containing inculpatory and self-excul-
patory statement. The High Court reversed the acquittal and convicted the
accused, accepting that part of the confessional statement of the accused
which was corroborated from other evidence. This Court upheld the con-
C viction and held that it is not necessary that each item of' fact or cir-
cumstance mentioned in the confessional statement requires to be
corroborated separately and independently. It would be sufficient if there
is general corroboration. The ratio in Kashmira Singh's case was referred
to.
D
In ilem Raj v/. The State of Ajmer, [1954) SCR 1133 a three-Judge
Bench to which Bose, J. was a member, was to consider whether retracted
confession of an accused could be corroborated from the material already
in the possession of the police prior to the recording of the confession.
Therein the confession was recorded under Section 164 of the Code during
E the committal proceedings but at the trial it was retracted. This Court held
that the evidence already on record of the police could be used to cor-
roborate the retracted confession.

In Haricharan Kunni & Jagi.a Hajam v. State of Bihar, AIR (1964) SC • _.l
F 1184 a Constitution Bench was to consider as to when the confession of a
co-accused could be used as evidence under Section 3 of the Evidence Act.
It was held that the confession of a co-accused cannot be treated as
substantive evidence. If the Court believed other evidence and felt the
necessity of seeking an assurance in support of its conclusion deducible
from the said evidence, the confession of the co-accused could be used. It
G was, therefore, held that the Court would consider other evidence adduced
by the prosecution. If the Court on confirmation thereof forms an 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 of the accused. It is, thus, seen that the distinction
H has been made by this Court between the confession of an accused and
,PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K RAMASWAMY J.) 823

.uses of a confession of the co-accused at the trial. A regards the confession A
+ of the accused and corroboration to the retracted confession, in Girdhari
Lal Gupta & Another v. D.N. Mehta, Assistant Collector of Customs &
Another, [1970) 2 SCC 530 a Bench of two Judges considered and held that
if the ·evidence of an investigating officer is found to be reliable, whether
it can be used to corroborate the evidence depends on the facts of each B
case. In that case, relating to the offence under Foreign Exchange Regula-
tion Act, it was held that the evidence of the investigating officer and other
evidence could be used to corroborate the recoveries made of the Indian
currency being exported. This Court upheld the conviction of the accused.

In Nishi Kant !ha v. 17ie State of Bihar, [1969) 1 SCC 347, another C
Constitution Bench was to consider whether, when a part of the confes-
sional statement is inculpatory and the other part exculpatory, the former
point was admissible in evidence. It was held that the exculpatory part was
inherently improbable and was contradicted by other evidence and was,
therefore, unacceptable. The incriminating circumstances contained in the D
· inculpatory part of the statement were accepted to confirm the conviction
of the capital offence. The law laid down by a three-Judge Bench in
Chandrakant Chimanlal Desai's case is not inconsistent with the above
exposition of law.

It would thus be seen that there is no prohibition under the Evidence E
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 cir-
cumstances to corroborate the retracted confession. It is not necessary that F
there shotild be corroboration from independent evidence adduced by the
prosecution to corroborate each detail contained in the confessional state-
ment. 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, G
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 as-
surance getting corroboration from other evidence adduced by the
prosecution. H
{'
824 SUPREME COURT REPORTS [1997] 1 S.C.R.

A In Naresh J. Sukhawani v. Union of India, [1995] Supp. 4 SCC 663 a
i-
two-Judge Bench (to which one of us, K. Ramaswamy, J., was a member)
had held in para 4 that the statement recorded under Section 108 of the
Act forms a substantive evidence inculpating the petitioner therein with the
contravention of the provisions of the Customs Act as he .had attempted
to export foreign exchange out of India. The statement made by another
B person inculpating the petitioner therein could be used against him as
substantive evidence. Of course, the proceedings therein were for confis-
cation of the contraband. In Surjeet Singh Chhabra v. Union of India, (1997)
:.
89 ELT 464, decided by a two Judge Bench to which one of us, K.
Ramaswamy, J,, was a member the petitioner made a confession under
c Section 108. the proceedings on the basis thereof were taken for confisca-
tion of the goods. He filed a writ petition to summon the panch (mediater)
witnesses for cross-examination contending that reliance on the statements
of those witnesses without opportunity to cross-examine them, was violative
of the principle of natural justice. The High Court had dismissed the writ
petition. In that context, it was held that his retracted confession within six . .
·D days from the date of the confession was not before a police Officer. The
Custom Officers are not police offices. Therefore, it was held that "the
confession, though retracted, is an admission and binds the petitioner. So
there is no need to call Panch witnesses for examination and cross-ex-
amination by the petitioner". As noted, the object of the Act is to prevent
E large- scale smuggling of precious metals and other dutiable goods and to
facilitate detection and confiscation of smuggled goods into, or out of the
country. The contraventions and offences under the Act are committed in
an organised manner under absolute secrecy. They are white-collar crimes
upsetting the economy of the country. Detection and confiscation of the
smuggled goods are aimed to check the escapement and avoidance of
.._
F customs duty and to prevent perpetration thereof. In an appropriate case
when the authority thought it expedient to have the contraveners
prosecuted under Section 135 etc., separate procedure of filing a complaint
has been provided under the Act. By necessary implication, resort to the
investigation under Chapter XII of the Code stands excluded unless during
the course of the same transaction, the offences punishable under the IPC,
G like Section 120-B etc., are involved. Generally, the evidence in support of
the violation of the provisions of the Act consists in the statement given or
·-
recorded under Section 108, the recovery panchnama (mediator's report)
and the oral evidence of the witnesses in proof of recovery and in connec- -<
tion therewith. This Court, therefore, in evaluating the evidence for proof
H of the offences committed under the Act has consistently been adopting
>- PAVUNNY v. ,\SSTT. COLLECTOR, (H.Q.) C.E.C. [K RAMASWAMY J.j 825

the consideration in the light of the object which the Act seeks to achieve. A-
~

In Han-oom Hai Abdulla v. State of Maharashtra, AIR (1968) SC 832,
for the offence of conspiracy punishable under Section 120-B of IPC and
Section 171-A of the Sea Customs Act, the question arose whether the
confession of co-accused who died pending trial just before delivery of the · B
_,
judgment, could be used against a co-accused? This Court considered the
evidence of an accomplice together with the statements of two accused
recorded under the Act, viz., one Bengali and another Noor Mohammad.
--<
How and what evidence could be relied upon against th:: other accused
was the question. One of the accused who gave the evidence was an
accomplice. In that case, it was held in para 9 of the judgment that the c
"argument here is that the cautionary rule applies. Whether there be one
accomplice or more and that the confessing co-accused cannot be placed
higher than an accomplice". On consideration of the evidence, this Court
had held in para 13 that the "Customs authorities served notices up'on
various suspects and recorded their statements in answer to these notices. D

...., ...
The statements of Kashinath (Ex. A) and Bengali (Ex.Z-27) were recorded
on the 15th, the former by Karnik (P.W. 24) and the latter by Rane (P.W .
26). These statements were recorded simultaneously or almost simul-
taneously. The statement of Noor Mohammad (Ex. Z-17) was recorded by
1 Randive (P.W. 22) on /August 19. As there was no gap of time between
the statements of Kashinath and Bengali and the incident was only a few E
hours old, it is impossible that the officers could have tutored them to make
statements which agree in so many details". On consideration of the
evidence it was held that "although Noor Mohammad's statement was not
used by the High Court and we have reluctantly left it out of consideration
~ also, "nothing was shown to us to "destroy the conclusion about the truth F
of accomplice evidence. If it was, we would have considered seriously
whether we should not take it into consideration. Further Haroon himself
was also served with a notice like others. He was unwilling to make a
statement till he had seen what the others had said. This may well be

- regarded as peculiar conduct in a man who now claims that he was not
concerned with the smuggling". The normal rule that accomplice's evidence G
requires corroboration on material particulars from independent evidence
was not applied. Thus this Court had accepted the accomplice evidence
> and the statements of others were used to confirm the conviction: Normally
mens rea is an essential ingredient of the crime but this Court in the case
of offences punishable under Section 14 of the Food Adulteration Act or H
-{,
826 SUPREME COURT REPORTS [1997) 1 S.C.R.

A Section 7 of the Essential Commodities Act, had held that mens rea is not
an essential ingredient in proof of statutory offences. "t-

In State of Gujarat & Anr. v. Achaiya D. Pandey & Ors. Etc., [1970)
3 sec 183 while holding that even in statutory offences in certain cir-
cumstances, unless the statute excludes expressly or by necessary implica-
B tion; mens rea is an essential ingredient. It was held that the offences under I·
the Bombay Public Trust Act, 1950 were not of serious nature. It was held
that mens rea was not essential ingredient for proving the commission of
offences. In Director of Enforcement v. M.C. T.M. Corporation Pvt. Ltd. &
01:~., f1996) 2 SCC 471 a two-Judge Bench was to considered whether mens
c rea is an essential ingredient in the proceedings taken under Section 23
(l)(a) of the Foreign Exchange Regulation Act. It was held that means rea
is not an essential ingredient to establish contravention under Sections
10(1) and 23 (1) (a) of that Act. It is not necessary in this case to broach
further whether mens rea is an essential ingredient for proving the commis-
sion of the offence under Sections 135 of the Act or Section 85 and 86 of
D the Gold (Control) Act since none has raised such contention. What is
required to be considered is whether voluntary statement, Ex. P-4 given by 'r
the appellant constitutes sole basis to prove the commission of the offence
under Section 135(1)(i) of the Act.

E Deoman Upadhyaya's case (supra) relates to a statement recorded
under Section 27 of the Evidence Act. The respondent therein was held to
be a person accused of offence of commission of crime. The respondent
~
subsequently turned out to be the accused. Therefore, the Constitution
Bench held that person who gave the statement to the police officer
~
F investigating into the offence and also gave information leading to the
discovery of the contraband, on those facts, must be deemed to have
surrendered himself to the police and that he being in the custody, gave
the statement leading to discovery of incriminating contraband within the

-.
meaning of Section 27 of the Act. Accordingly, it was held that the evidence
was inadmissible. The ratio therein has no application to the facts in this
G case.

In Sevantilal Karsondas Modi v. State of Maharashtra & Anr., [1979) ~
2 SCR 1160, a two-Judge Bench concluded on the facts in that case that
the statement recorded of the appellant-accused therein was hit by Section
H 24 of the Evidence Act for the reason that one of the accused tried along
PAVUNNY v. ASSIT. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY J.] 827

with the appellant was found to have sustained grievous injuries while he A
was in custody of the police. Moreover, the house from which the con-
traband was recovered was in joint possession of others along with the
appellant. This Court, therefore, drew the inference that the statement was
not voluntary. This case also has no application to the facts in the present
case. Satbir Singh's case also is not of any help to the appellant. Therein,
B
the confession was recorded by a superior police officer questioning the
accused separately on several dates and ultimately it was recovered at the
end. Under those circumstances, it was held that the confession was not
voluntary. That case relates to the prosecution for offences under Section
364 and 302 read with Section 120-B, IPC. The ratio therein is equally
inapplicable to the facts in the present case. c
It is seen that the contraband of 200 gold biscuits of foreign marking
concealed in a wooden box and kept in the pit in the compound of the
appellant was recovered at 9.00 a.m. on December 6, 1980 in the presence
of Panch (mediator) Witnesses including P.W. 3. This is proved from the D
evidence of PWs. 2, 3 and 5. There was nothing for PW-3 to speak
_, falsehood against the appellant who is a friend of him. PW s-2 and 5 also
withstood the grueling cross-examination. There is nothing to disbelieve
their evidence. The appellant herein made statement under Section 108 at
1 P.M. on December 6, 1980, i.e., after four hours. It is unlikely that during
that short period PW-2 and 5 would have obtained the retracted confession E
under Ex. P-4 in his own handwriting running into 5 typed pages under
threat or duress or promise. No doubt the wealth of details by itself is not
an assurance of its voluntary character. The totality of the facts and
circumstances would be taken into account. On a consideration of the
evidence, the High Court accepted that Ex. P-4 is a volUntary and true F
confessional statement and accordingly it convicted the appellant of the
offences It is seen that Ex. P-4 was given in furtherance of the statutory
compulsion and the appellant made statement in unequivocal terms admit-
ting the guilt. It is seen that in Barkat Ram's case this Court accepted the
retracted confessional statement and upheld, on that basis, the conviction..
In Vallabhdas Liladhar's case and also in Rustom Das's case the retracted G
confessional statement found basis for conviction and in the latter the
recoveries were relied as corroborative evidence. In Haroom Abdulla's case
this Court used the evidence of co-accused as corroborative evidence.
I

It is true that in criminal law, as also in civil suits, the trial Court and H
828 SUPREME COURT REPORTS [1997) 1 S.C.R.
~
A the appellate Court should marshal the facts and reach conclusion, on
facts. In a criminal case, the prosecution has to prove the guilt beyond
doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt
of a doubting Thomas or of a weak mind is not the road to reach the result.
If a Judge on Objective evaluation of evidence and after applying relevant
tests reaches a finding that the prosecution has not proved its case beyond
B reasonable doubt, then the accused is entitled to the. benefit of doubt for
acquittal. The question then is : whether the learned Single Judge of the
High Court has committed any error of law in reversing the acquittal by
the Magistrate. Not every fanciful reason that erupted from flight of
imagination but was relevant and germane, required to be tested. Reasons
C are the soul of law. Best way to discover truth is through the interplay of
view points. Discussion captures the essence of controversy by its appraisal
of alternatives, presentation of pros and cons and review on' the touchstone
of human conduct and all attending relevant circumstances. Truth and
falsity are ,sworn enemies. Man may be prone to speak falsehood but
D circumstantial evidence will not. Falsity is routed from man's proclivity to
faltering but when i't is tested on the anvil of circumstantial evidence truth
stands. On scanning the evidence and going through the reasoning of the
learned Single Judge we find that the learned Judge was right in accepting
the confessional statement of the appellant, Ex. P-4 to be a voluntary one
and that it could form the basis for conviction. The Magistrate had dwelt
E upon the controversy, no doubt on appreciation of the evidence but not in
proper or right perspective. Therefore, it is not necessary for the learned
Judge of the High Court to made through every reasoning and give his
reasons for his disagreement with the conclusion reached by the
Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail
F and recorded the disagreement with the Magistrate and reached his con-
e\ usions. Therefore, there is no illegality in the approach adopted by the
learned Judge. We hold that the learned Judge was right in his findings
that the prosecution has proved the case based upon the confession of the
appellant given in Ex. P-4 under Section 108 of the Evidence Act and the
evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt
G and the High Court has committed no error of law.

Section 135 provides that "without prejudice to any action that may be
taken under the Act", emphasis supplied) if any person is, in relation to any
goods in any way, knowingly concerned in any prohibition imposed under
. H the Act for the time being in force with respect to such goods or acquires
PAVUNNY v. ASSTI. COLLECTOR, (H.Q.) C.E.C. [K. RAMASWAMY .T.) 829
possession of any goods which he knows or has reason to believe are liable A
to confiscation under Section 111, then he shall be liable to conviction
under sub-section (1) thereof and shall be liable to punishment under
sub-section (2) thereof. Similarly, under the Gold (Control) Act, which was
in operation at the relevant time, whoever in contravention of the
provisions of that Act or order made thereunder, among other things, owns
B
or has in his possession, custody or control any primary gold, is liable,
without prejudice to any other action that may be taken under that Act,
for punishment of imprisonment prescribed for the purpose. Under Section
86, whoever fails to make a declaration enjoined under sub-section (12) of
Section 16 without any reasonable cause, is liable to punishment of im-
prisonment prescribed for the purpose. The offences are proved from the c
evidence.

Having i:eached the finding that the appellant has committed the
offences under Section 135 (l)(i) of the Act and Sections 85(1)(a) and 86
of the Gold (Control) Act, 1968 we think that instead of being committed
to jail, the appellant should be sentenced to pay fine of Rs. 10,000 and Rs. D
5,000 respectively for the two aforementioned offences, within 4 months
from today. In default, he shall undergo imprisonment for a period of 2
months and 1 months respectively which are directed to run consecutively.

The appeal is accordingly allowed to the above extent of modification
E
,-- and the sentences imposed by the High Court stand modified accordingly.

v.s.s. Appeal allowed. ·