BHANA KHALPA BHAI PATELversusASSISTANT COLLECTOR OF CUSTOMS, BULSAR, GUJARAT AND ANR.

                 BHANA KHALPA BHAI PATEL                                          A
                            v.
          ASSISTANT COLLECTOR OF CUSTOMS, BULSAR,
                     GUJARAT AND ANR.

                           NOVEMBER 18, 1997
                                                                                  B
              [M.M. PUNCHHI AND M. SRINIVASAN, JJ.]


     Customs Act, 1962/Gold Control Act, 1968-Sections 108, 135 (1-A)
& (1-B)/Section 25-Contraband Gold-Search & seizure-Statements C
recorded under Section 108 of Customs Act-Testimony of co-accused-
Conviction by Trial Court-Confirmed by High Court-Held, statements
recorded under Section I 08 of the Customs Act are admissible in evidence-
Courts below were justified in considering the evidence of co-accused-
Conviction upheld.
                                                                                  DI
      The appellant along with ten others was prosecuted under Sec. 135 (I-
A) and 135 (1-B) of the Customs Act 1962 and also under Sec. 25 of the Gold
Control Act 1968. The case of the prosecution was that on receipt of an·
info'rmation that Contraband. gold was being brought, the Customs
Department kept a vigil. It was found that two persons were coming to the
coast from the sea and after interrogation it was learnt they were to give E
signals after coming to the coast. In the meantime the officers saw red
signals being flashed from the house of the appellant, situated nearby. There
were three persons who had flashed red signals. It was learned from the
accused that 16 pockets of gold were dumped in the sea. The officers took
out 32000 to las of gold from the sea. Statements were recorded under Sec.
108 of the Customs Act 1962 and a complaint was filed by the Assistant F
Collector against the accused. Accused no. 9 who was working as Driver
with the appellant pleaded guilty and was convicted and sentenced to two
years rigorous imprisonment. After his .release he gave evidence (as PW-
27), that the work was done for the appellant and he was being paid by the
appellant whenever he wanted money. The statements of other accused also G
specifically implicated the appellant.

       The Trial Court after examining the witnesses convicted and sentenced
·the appellant to undergo rigorous imprisonment for a period of6 years and
 to pay a fine of Rs. 5,000. On appeal the High Court while confirming the
 conviction partly allowed the appeal by reducing the sentence of imprisonment.   H
                                      163
    164                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A   Aggrieved by the said judgment the appellant has preferred the presi!nt
    appeal.

          The contention of the appellant was that courts below have acted on the
    sole uncorroborated testimony of PW-27. It was further contended that the
    entire case of the prosecution against him was wholly unbelievable as there
B   was nothing on record to connect him with the alleged occurrence.

          Dismissing the appeals, this Court

          HELD : I. I. The appellant was guilty of the offence for which he was
    prosecuted. There is no reason to differ from the conclusion arrived at by
C   the trial court and High Court. 1167-F; 168-BI

          1.2. It cannot be accepted that the entire case rests on the sole
    uncorroborated testimony of PW 27 who was a co-accused. Several statements
    have been recorded under the Customs Act, "1962 and marked as Ex. 23 to
    Ex. 31. The statements recorded under the Customs Act have been duly
D   proved by the officials concerned. The courts below were satisfied that there
    was no threat or inducement and that the relevant provisions of law were
    explained to the persons who gave the statements. The statements were found
    to be voluntary and not· vitiated in any manner. The courts below were
    therefore justified in accepting the contents of those statements and
    considering the evidence of PW 27 in addition there to. The discussion and
E   appreciation of evidence by the courts below do not suffer from any infirmity.
                                                  1166-H; 167-C; E-F; 168-A-BI

         1.3. It is well settled that statements recorded under Section 108 of
    the Customs Act are admissible in evidence. [167-GI

p        Ramesh Chandra v. State of West Bengal, AIR (1970) S.C. 940 and K./.
    Pavunny v. Asst/. Collector (H. Q.) Central Excise. Col/ectorate, Cochin,
    (19771 3 sec 721, relied on .

          Haricharan Kurmi v. State ofBihar, AIR (1964) S.C. 1184, referred to.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 566-
G 568of1981.
          From the Judgment and Order dated 18.2.81 of the Gujarat High Court
    in Crl .A. Nos. 1008/80, 546 and 884of1979.

         M.C. Bhandare, (Sanjay Mani Tripathi,) for Ms. Rani Jethmalani for the
H   Appellant.
    B.K.ll. PATEL 1•. ASSTT. COLLECTOR OF CUST., BULSAR, GUJARAT[SRINIVASAN,J.]   J65

      A. Subha Rao, R.N. Verma and V.K. Verma for the Respondent.                       A
      Ms. Hemantika Wahi for the Respondent No. 2.

      The Judgment of the Court was delivered by

      SRINIVASAN. J. The appellant is the 8th accused in Criminal Case 240              B
of 1974 on the file of Judicial Magistrate, I st Class, Umbergaon. He was held
guilty of the offence punishable under Section 135 (I-A) and 135 (1-B) of the
Customs Act 1962 and also under Section 25 of the Gold Control Act 1968.
He was sentenced to undergo rigorous imprisonment for a period of six years
and pay a fine of Rs. 5,000 for each of the offences under the Customs Act
and rigorous imprisonment for a period of 2 years and pay a fine of Rs. 2,000           C
for the offence under the Gold Control Act. The sentences of imprisonment
were directed to run concurrently. Along with the appellants some other
accused were also convicted. There were appeals by the State Government
as well as the Assistant Collector of Customs and an appeal by the appellant
before the High Court of Gujarat. The High Court while confirming the                   D
conviction, partly allowed his appeal and reduced the sentence of imprisonment
under Section 135 (l-A) and 135 (l-B) of the Customs Act to five years
rigorous imprisonment. Aggrieved by the said judgment, the appellant preferred
these appeals on Special Leave.

      2. The main contention of the learned counsel for the appellant is that           E
the entire case of the prosecution as against him is wholly unbelievable as
there is nothing·on record to connect him with the alleged occurrence. lt is
submitted that the courts below have acted on the sole uncorroborated
testimony of PW 7 who was originally accused No. 9 and convicted on his
pleading guilty and had undergone imprisonment for a short period. lt is
argued that ifthe evidence of PW 27 who claimed to have worked as a driver              F
under the appellant is eschewed there is no material on record to prove the
guilt of the appellant. lt is further argued that even if the evidence of PW 27
is considered, it will be seen that no credence can be given to the same as
his version is inherently improbable.
                                                                                        G
      3. In the first blush the arguments of the appellant's counsel appear to
be attractive but on a perusal of the entire record if is seen that there is no
merit. Briefly, the relevant facts are as follows :-

      On receipt of information that contraband gold was being brought the
officers of the Customs Department kept vigil at Village Jampore in Moti-               H
    166                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Daman. It was found that two persons (Accused I 0 and 11) were coming to
   the coast from the sea and after interrogation it was learnt that they were to
   give signals after coming to the coast and after such signals were given, the
    boat in the midst of the sea would come to the coast on the instructions of
    the officers. Such signals were given by the said persons but the boat did
    not come to the coast. The officers saw red signals being flashed from the
B house of the appellant situated nearby and they went to that house. There
    were three persons who had flashed red signals. On the next day the officers
    went to the boat which was at the mid sea and made a search. Accused Nos.
     I to 7 were on that vessel. It was learnt from the three accused that 16 packets
    of gold were dumped in the sea at a short distance. They were taken out and
C it was found that they contained 32000 tolas of gold. The officers recorded
    Statements under Section 108 of the Customs Act. Ultimately a complaint was
  . filed by the Assistant Collector of Customs, Valsad on 29.3.74 against 11
    accused. Accused No. IO was absconding, Accused No. 3 expired, Accused
    No. 9 pleaded guilty. He was convicted and sentenced to undergo two years
    rigorous imprisonment and to pay a fine of Rs. 2,000. He was in jail from
D 15.2.76 but there was a remission of sentence and after release he gave
    evidence as PW 27.

           4. According to PW 27 he was working as Driver of the appellant from
  the year 1966-67. He knew the first accused for more than 15 years. On
  3 I. I. I 970 he met the first accused in his house and told him that from a vessel
E at 'Kalai' gold was to be transferred to his boat and brought to Jampore
  School. The work was to be done for or on behalf of the appellant. According
  to the witness one person sent by the appellant accompanied him whose
  name was not known to him. That person was to go to the Vessel so that the
  gold could be transferred from that vessel to the boat by the first accused.
F The said unknown person and Accused No. I with his labourers went to the
  coast and left them there. After the boat left, he went to the Vadi of the
  appellant in Jampore and stayed till the boat returned. He learnt on the next
  morning that the boat was caught and the gold was also seized by the
  customs officers. He was being paid by the appellant whenever he wanted
  money. When he learnt that the officers had seized the gold he went to
G Badalivadi and from that place went to Bombay to inform the appellant. He
  did not know how much gold was seized.

           5. We have already referred to the contentions urged by the learned
     counsel for the appellant. We are unable to accept the arguments that the
     entire case rests on the sole uncorroborated testimony of PW 27 who was
H    a co-accused. If it had been factually correct the contention would have been
     B.K.B. PATEL "· ASSTT. COLLECTOR OF CUST., BULSAR, GUJARAT [SRINIVASAN,J.]   J67

. well founded. Our attention has been drawn to the judgement in Haricharan             A
  Kurmi v. States ofBihar, AJR (1984) S.C. 1184 in which it is held that though
  the confession of a co-accused person cannot be treated as substantive
  evidence and can be pressed into service only when the Court is inclined to
  accept other evidence and feels the necessity for an assurance in support of
  its conclusion deducible from the said evidence. The Court observed that the
 stage to consider such confessional statements arrived only after the other
                                                                                        B
 evidence is considered and found to be satisfactory.

      6. Jn the present case several statements have been recorded under the
Customs Act and marked as Ex. 23 to''Ex. 3 l. They were all recorded on
2.2.1970. In the statement of Accused No. l he stated that PW 27 was driving            C
the car of the appellant and he met him on the relevant date and requested
him to bring gold from the vessel which was in the sea. He was also assured
that he would be paid for the work by the appellant. He was instructed to
bring gold near Jampore School. His statement implicates the appellant amply.
His second statement was recorded on 3.2.1970 and the third on 11.7.70. Jn
the third statement he had stated that the machine for his boat was fitted with         D
the help of the appellant and it was agreed between him and the appellant
that the amounts payable for the work which he would do for the appellant
could be adjusted towards the cost of the machine. According to him the
appellant told him that if he had any work he would send a message through
PW 27. The fourth statement of Accused No. l was recorded on 25.2.1972.
The statements of Accused Nos. 2 to 7, I 0 and 11 were also recorded on                 E
2.2.1970. Accused No. 3 made a specific reference to the appellant. The
statements recorded under the Customs Act have been duly proved by the
concerned officials. The courts below were satisfied that there was no threat
or inducement and that the relevant provisions of law were explained to the
persons who gave the statements. The statements were found to be voluntary              p
and not vitiated in any manner. Hence, all those statements are admissible in
evidence and it is clear therefrom that the appellant was guilty of the offences
for which he was prosecuted.

      7. An attempt was made to contest the admissibility of the said
statements in evidence. It is well settled that statements recorded under               G
Section I 08 of the Customs Act are admissible in evidence vi de Ramesh
Chandra Versus State of West Bengal, AIR (1970) S.C. 940 and Kl. Pavunny
Versus Assistant Collector (HQ.). Central Excise Collectorate, Cochin, [1997]
3 S.C.C. 721.

      8.   The courts below were therefore justified in accepting the contents          H
    168                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A   of those statements and considering the evidence of PW 27 in addition
    thereto. Moreover reference has been made to the evidence of PW 15 who
    was of a Customs Officer. According to his evidence he knew PW 27 personally
    and had knowledge that he was a driver of the appellant.

          9.   Both the trial court and the High Court have discussed the evidence
B on record in detail. We do not find it necessary to repeat the exercise in this
    judgement. We are convinced that the discussion and appreciation of evidence
    by the courts below do not suffer from any infirmity whatever. We do not find
    any reason to differ from the conclusion arrived at by them. In the
    circumstances, the appeals fail and are dismissed.

c S.V.K.I.                                                    Appeals dismissed.