V. Bhaskaran Nambiar, J.
1. Penalty of a lakh of rupees imposed on the petitioner under the Customs Act pursuant to recovery of foreign fabrics not from the petitioner's house, but from the premises of the other persons has given rise to the writ petition and this appeal.
2. In 1974, the Customs Officers recovered 15 gunny bundles of fabrics of foreign origin from the premises belonging to Sri Abdul Khader and Sri CM. Abdulla. Investigation commenced. They denied ownership of the goods or any involvement in the import of these goods and they were also absent when the recovery was effected. However, they seem to have stated before the customs authorities that the contraband seized belonged to petitioner, appellant and they were imported at his instance and with his connivance. The department had taken statements from other persons also and recovered two letters from the house of one Abdulla Kunhi. In these two letters there is no reference to the appellant and they contained only certain codes which even the departmental officials could not decipher. These letters have lost all significances and have not been relied on by the department or the learned single Judge.
3. Show cause notices were issued to the appellant and six others, namely, Shri M.M. Abdulla Kunhi s/o Mammunhi, Shri Mammad alias Srakut-ty Mammed s/o Kadavath Anthru, Shri M.M. Thajuddin alias M.M. Thaji s/o M.M. Abdulla Kunhi, Shri B.M. Abdul Khader s/o Vadakkan Mammunhi, Shri CM. Abdulla s/o Mammunhi and Shri Theruvath Kasmi s/o Anthunhi.
4. The appellant and others disclaimed any liability. There was a hearing. The appellant had the assistance of an advocate Sri. K. Kunhirama Menon who appeared for him before the authorities and appeared in this Court also. Oral evidence was also taken. Eventually the Additional Collector of Customs, Cochin, by order dated 4th February, 1978 (Ext. P6) imposed the penalty of a lakh of rupees on the appellant. The officer relied on the statements 'by the other parties involved in the case' that the goods were smuggled for and on behalf of the appellant, found no reason to 'disbelieve or distrust those statements', and held that these statements were not 'disproved' by the appellant 'by presenting sufficient and standing recorded evidence' and thus found that the charges were proved against the appellant.
5. In appeal, the Central Board of Excise and Customs confirmed the decision by order dated 1st February, 1980. It held thus :-
'Taking the fact of the recovery of the goods and the spontaneous evidence collected from the other persons who conspired in the unauthorised unloading of the smuggled goods, the Collector's finding that the appellant was concerned is correct and is accordingly confirmed'
6. Of course, the appellant had a contention that adjournment asked for by his counsel was wrongly refused; but that need out detain us in the light of the contentions raised on merits in this Court.
7. The appellant took the matter in revision before the Government, and the revision was also dismissed in these words :-
'Government observe that ordinarily the testimony of co-accused persons should not be made the basis for penalising a person and that it should be corroborated in material particulars. At the same time it is also clear that a conviction based merely on the testimony of co-accused persons is not bad. In such cases the competent authority has to see whether the testimony of co-accused persons is spontaneous and if it appears to be spontaneous and the facts narrated therein appear to be true, there is nothing wrong in treating it as reliable evidence. Whether such testimony needs corroboration and the extent thereof is to be determined by the competent authority only on the basis of particular facts and circumstances of each case. While it may be proper to treat the evidence of co-accused persons as sufficient for imposing penalty under Section 112 ibid, in a particular case, in another case this may not be so. The test is whether the statements of the co-accused persons are reliable and whether they fit in the chain of events. In the present case Government are satisfied that the testimony of the co-accused persons implicating the petitioner is spontaneous and reliable. First these persons by themselves were incapable of either financing the goods or disposing them of in India as their roles were limited to only assisting petitioner No. 1. Secondly there was no reason for all of them in separate statements for implicating petitioner No. 1. One could say that the testimony of Khader and Tajuddin implicating the petitioner needed some corroboration as they themselves were actively involved in the smuggling of the goods. This however is not true, in respect of the testimony of Khader and CM. Abdulla who clearly stated that the goods recovered from their premises belonged to the petitioner No. 1 and that these were stored in their premises only temporarily and that these were earlier stored in the compound belonging to petitioner No. 1 only. Government are, therefore, satisfied that the involvement of petitioner No. 1 in respect of the goods in question is established beyond doubt even though it is based only on the testimony of other co-accused persons. Petitioner No. 1 is therefore liable to penalty under Section 112 of the Customs Act, 1962 and the penalty of Rs. 1 lakh imposed on him does not call for any moderation'
8. The writ petition was filed challenging these three orders. The learned Judge rightly found that the department 'chose to rely solely on the testimony of the co-accused' and proceeded to confirm the decision of the authorities on the ground that the findings can be justified 'not only on the basis of the evidence they relied upon, but also on the basis of Ext. P1I' (a statement in writing given by the appellant to the officers on 19th March, 1974). This appeal has thus been filed against this judgment.
9. Shri Santhalingam, Central Government Pleader rightly submitted that the Department did not rely on the statement by the appellant (Ext. P1) for entering a finding against the appellant. When the department itself chose not to accept this evidence to prove the case against the appellant, it was unnecessary, with great respect, to the learned Judge, to rely on the same for the purpose of confirming the decision of these authorities. But as the learned Judge has rested his conclusion on this statement as well, we cannot, in appeal, ignore the same. Ext. P1, a statement taken down by an Inspector of Central Excise on 19th March, 1974 was read to us. There is no statement therein in which the appellant admits that he is in any way involved in the smuggling of the contraband articles. He flatly denied his ownership and possession of the goods. There is thus no confession by the appellant and Ext. P1 did not implicate himself. However, when he was asked about the statements made against him by others, he replied that he had nothing to say in particular. He had made a statement on the same day when he was produced before the Chief Judicial Magistrate, Ext. P2, stating that Ext. P1 was not a full and correct statement; that the officers recorded only what they desired to be incorporated therein. The advocate for the appellant who appeared at that stage for the appellant was examined and his deposition is Ext. R7(c). He states the circumstances under which the appellant was arrested. The statement was made by the appellant when he was in custody. At the first opportunity, on that day itself he said that the statement was incomplete and the officer wrote only what he wanted and not everything the appellant stated. There were therefore good reasons for the department not to rely on this statement and they rightly refused to support their conclusion on this statement. Under these circumstances, the mere fact that it was noted that the appellant had nothing to say at that time regarding those statements made behind his back by the other co-accused cannot fasten guilt on him especially when he emphatically denied that he had anything to do with the goods and did not expressly or impliedly implicate himself. With great respect to the learned Judge, we cannot agree that Ext. P1 statement, not relied on by the department, could be pressed into service for supporting the impugned orders in this court.
10. The thrust of the submission therefore rests on the admissibility and acceptability of the statements made by the 'co-accused', persons involved in the case (as described in Ext. P6 itself). The counsel contends that a retracted confession of a co-accused is wholly inadmissible and cannot be pressed into service to impose penalty on another accused, the appellant; that the statement when retracted is no substantive evidence and the evidence of the person who gave the statement alone can be evidence. When that evidence also does not support the department, the charges have to fail. The counsel also submits that there has been infraction of the principles of natural justice.
11. The contention therefore lies in a narrow compass and with reference to the admitted facts and those disclosed by the evidence on record, the conclusion also poses no difficulty especially when the Supreme Court has spoken, if we may say so with respect, very clearly on the principles of natural justice to be applied in such cases.
12. The facts admitted are:- The persons 'involved in the same offence' made statements behind the back of the appellant. They were recorded by the customs officers when they were in their custody or under their control. The copies of those statements were furnished to the appellant. The persons who made those statements were examined as witnesses in this case against the appellant. The original statements were not specifically put to the witnesses; even then they denied having made any such statements. These statements were not marked or admitted as evidence. To understand how this statement was put to the witnesses, and what answers were elicited, it is sufficient to reproduce the deposition of Abdul Khader s/o Vadakkan Mammunhi [Ext. R4(c)]. The same procedure has been followed regarding the other witnesses who made similar statements.
'I heard about the seizure of 12 bundles of goods from my house by the Customs Officer. I was not present in the house. The seizure was from goat shed which is separated by steps from my house on which there could be separate access (sic). I don't know to whom these goods belong. I don't know who brought it and who kept it there. Except hearing about its seizure, I don't know anything about it. Nobody asked my permission. I was not present in the locality. I have to go to Mangalore once in a week. I am however in aluminium wares. I have no knowledge about the goods nor am I any way responsible for the same. I was simply asked to sign a written paper and I did so.
(Administrative Officer) Were you threatened, if you don't sign ?Ans: I was simply asked to sign. The statement was not read over to me.'
13. Thus it can be seen that the evidence tendered at the enquiry in the presence of the appellant supports the appellant. The question is whether even in such circumstances, the prior statement disowned and denied, can be relied on, as substantive evidence to fasten 'guilt' under the Act.
14. The Supreme Court has spoken on this aspect in Central Bank of India v. P.C. Jain AIR 1969 SC 983 thus :-
'...'These views expressed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence. The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged. An exception was envisaged where the previous statement could be used after giving copies of that statement well in advance to the workman charged, but with the further qualification that that previous statement must be affirmed as truthful in a general way when the witness is actually examined in the presence of the workman. Applying this principle to the present case, it is clear that the previous statement made by Nand Kishore to Vazifdar could not be taken as substantive evidence against the respondent, because Nand Kishore did not affirm the truth of that statement when he appeared as a witness and on the other hand, denied having made that statement altogether. Even though his denial may be false, that fact would not convert his previous statement into substantive evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed by him at the time of his examination by the Enquiry Officer. This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the Enquiry Officer on the basis of which he could have held that the sum of Rs. 30,400 was paid to the respondent by Nand Kishore, and that Nand Kishore (respondent ?) thereafter left for Muzaffarnagar in the company of some persons with that money.'
15. Adjudication proceedings under the Customs Act involve the exercise of quasi-judicial functions. It is elementary therefore that the principles of natural justice are followed. One such principle is that a statement gathered behind the back of any person cannot be used against him unless that statement is put to him and he is given an opportunity to rebut the same. Rebuttal arises when this statement is affirmed by its author. If the statement is discarded or disowned by its maker, the statement loses its evidentiary value; it ceases to be substantive evidence at least against others. The testimony of the person who made the prior statement will be evidence. If that evidence does not support the department, the charges necessarily have to be dropped.
16. In this case therefore, the persons who are alleged to have given statements against the petitioner resiled from those statements and even refuted that they made any such statement. The oral evidence adduced did not support the case of the department. Thus there was no legal evidence to find that the petitioner was guilty of the charges. It has also to be remembered that some of the persons who gave the statements were those from whose premises the contraband itself was seized; and possibly they would have made those statements to protect themselves.
17. These are, in any case, only statements in the nature of retracted confessions by co-accused. Can these retracted confessions be the sole basis for finding that the appellant is guilty under the Act ?
18. In Haroom Haji v. State of Maharashtra AIR 1968 SC 832 it was held
'...As pointed out by this Court in Nathu v. State of Uttar Pradesh AIR 1956 SC 56, confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict.'
19. In Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184 it was observed thus :-
'As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that 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 of seeking for an assurance in support of its conclusion deducible from the said evidence. In cirminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.'
20. In Shrishail Nageshi v. State of Maharashtra AIR 1985 SC 866 it was again observed thus :-
'We wish to make it clear and this is only to repeat what is so well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources. It cannot however, be the basis for convicting co-accused though it may be taken into consideration against co-accused also.'
21. There is no corroboration and these retracted statements cannot constitute the sole basis for finding that the charges against the appellant are proved.
22. The learned Judge states that the statements were not retracted at the earliest opportunity and thus could not have been devalued as retracted confession. It is sufficient to notice that so far as the appellant is concerned, at the first opportunity, when oral evidence was tendered, the statements were retracted. Delay to retract the statement cannot thus be attributed.
23. Before us, the Central Government Pleader contended that the statements were taken when these persons were not arrayed as accused and before charges were framed. That contention can have no force when those statements, rejected by their makers, did not constitute substantive evidence.
24. Lastly, it was contended that these statements constituted 'relevant evidence' tinder Section 138B of the Customs Act. Sections 138B and 139 of the Customs Act read thus :-
'138B. Relevancy of statements under certain circumstances. - (1) Astatement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, -
(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or
(b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.'
'139. Presumption as to documents in certain cases. - Where any document -
(i) is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or
(ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act,
and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall-
(a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under Cl. (i) also presume, unless the contrary is proved, the truth of the contents of such document.'
25. The learned Judge held thus :-
'Section 138B makes it clear that in proceedings before an administrator, as in the case of a proceeding in a Court of law, a statement made and signed by a person is material and it has to be admitted in evidence in the interest of justice. Section 139 places the burden upon the maker of the statement to deny the genuineness of his signature or any statement contained in the document. It is not disputed by the petitioner's counsel that the expression 'document' would include the statements signed by the co-accused. Section 139 leaves no doubt that a Court shall presume, unless the contrary is proved, that the signature of the maker is genuine and every other part of the document is equally genuine. This is the principle on which the Court must act. Section 139 does not exclude the applicability of this principle in pproceeding before an administrator. If it is open to a Court to draw the statutory presumption, it is equally open to an administrator in proceedings of this kind to draw a like presumption and conclude, in the absence of evidence to the contrary, that every word contained in the statement and the signature appearing on the face of it are those of the maker. This being the position in law, the respondents were entitled to rely upon every word in the statements signed by the witnesses, notwithstanding their attempt to retract therefrom, especially when there is no evidence of threat.'
26. True, Section 138B states that a statement made and signed by a person before any gazetted officer of customs is relevant to prove the truth of the fact it contains in any proceeding under the Act. But these statements are relevant only if the conditions prescribed under clauses (a) or (b) of Section 138B are satisfied. Here, there is no case that clause (a) applies. If at all, clause (b) alone can be attracted. Under this clause, the statement is relevant when (a) the person who made the statement is examined and (b) the statement is admitted in evidence after the authority forms an opinion that in the interest of justice and having regard to the circumstances of the case, it should be so admitted.
27. The original statements were not produced and admitted in evidence at the time of the enquiry. There is nothing to show that the authority had formed an opinion that they were necessary to be admitted in the interests of justice. Section 138B is not attracted to the facts and circumstances of this case and the statements do not constitute relevant evidence even under Section 138B.
28. This, therefore, is a case where there is no legal evidence to support the reasons and conclusions in Exts. P6, P9 and P10. A conclusion based on no evidence has thus to be set aside under Article 226 of the Constitution.
29. We, therefore, quash Exts. P6, P9 and P10, set aside the judgment of the learned single Judge and allow the appeal and the writ petition to the extent indicated. No costs.