JUDGMENT
Ajoy Nath Roy, J.
1. This is an application by Manindra Chandra Dey, the writ petitioner, complaining against an imposition of a penalty of Rs. 10,000/- upon him made by the customs authorities. The imposition was made by an order of the Collector dated 21-4-1986, under item (c) thereof and the same was confirmed in appeal by the Tribunal in its appellate order dated 21-11-1989. A reference application therefrom was dismissed by the Tribunal as out of time.
2. As the result of the same events two other consequences also followed. The first of these was that Manindra Chandra Dey was also proceeded against under the Gold Control Act (now repealed) and the second consequence was that two gold bars and one gold stick were confiscated. In so far as the gold control proceedings are concerned they form the subject-matter of altogether different legal proceeding and whatever appears herein is not to be treated as any pronouncement upon the same. In so far as the confiscation of the gold bars and gold stick are concerned it is the case of the writ petitioner that this is a matter of complete irrelevance to him, because he never owned nor possessed nor had anything to do with the same. His only grievance is against the imposition of penalty.
3. In fact, the question of possession of the three items of gold form the central issue which gave rise to the instant matter. The case of the prosecuting customs authorities is that these gold items were found in a bag which was being carried by Manindra Chandra Dey. He entered the shop room of one Prakash Yadav, a small businessman carrying on trade in gold and, apparently, travel agency. The apprehension took place at the instance of one Nepali boy whose name and address are mentioned in the show cause notice annexed to the writ petition. The surname of the Nepali boy is Shreshtha. It is surprising that though the Nepali boy’s name and the address are given, yet the authorities have satisfied themselves by mere recording in the orders that the Nepali boy is absconding. Apparently, the Nepali boy gave a statement. This will appear from page 90 of the annexures to the writ petition where the statement of Shreshtha is mentioned in the body of the order of the Collector. There is no reason forthcoming why the power of arrest which vests in the customs officials on a combined reading of Sections 104 and 135 was not exercised in relation to Shreshtha.
4. It is a clear fact which stands out from the petition as well as the other papers before me that at the material time Manindra Chandra Dey was a heart patient with a pacemaker inside his chest. The occurrence and search took place on the 20th April, 1985 in the morning. It is recorded in the judgment of the Tribunal that thereafter the customs officials took Manindra Chandra Dey to the Customs House. There a confessional statement was signed by Manindra Chandra Dey apparently on every page and also against the corrections in the body of that confessional statement. After the said statement was signed Manindra Chandra Dey was produced before a magistrate on the 21st April, 1985 having spent the night of the 20th April, 1985 in police custody. 21st April, 1985 was a Sunday but bail was granted to Manindra Chandra Dey on that day. No surety could be arranged by him on that day. Therefore, he spent the night of the 21st April, 1985 in jail. Surety was arranged on the 22nd April, 1985 and the writ petitioner was released. On the 25th April, 1985, the writ petitioner executed another statement which was a statement in retraction.
5. The order of the Collector as well as the order of the Tribunal proceed on the basis of acceptance of the confessional statement made by the writ petitioner. If the legal approach of these two quasi-judicial authorities in relation to the confessional statement is proper, then the writ petitioner has no case whatsoever. However, for reasons given later by me I accept the arguments of Mr. Bhaskar Gupta appearing for the petitioner, and I am quite convinced that both these quasi-judicial authorities in regard to this confessional statement proceeded on a wrong legal approach which is manifest on the face of the records and that their decision was also vitiated by consideration of irrelevant matters as well as by non-consideration of matters which were relevant.
6. The first and foremost of the manifest defects in exercise of jurisdiction is the approach of the Tribunal in its dealing with the confessional statement as well as the retracting statement. The Tribunal has put a great emphasis on the delay that occurred (5 days) between the confessional statement and the retracting statement. No doubt if a retracting statement comes after a certain lapse of time its weight is naturally reduced. There is a clear cut distinction between the admissibility of a piece of evidence and the weight to be attached to it. Unfortunately, the learned Tribunal proceeded on the basis that because of delay for a few days the retracting statement will not be considered at all. There is no balancing attempted by the Tribunal as between the statements made in the confessional statement and the retracting statement. I am not to sit in appeal over the assessment of any piece of evidence by the Tribunal. However, after I find that a particular piece of evidence has not been considered at all because of the Tribunal labouring under a wrong impression of law, then indeed this jurisdiction in the writ Court has to be exercised and the decision arrived at by the Tribunal is to be set aside.
7. In regard to the above approach of the Tribunal in dealing with the question whether the retracting statement is to be taken into consideration at all or not, the portion of the decision appearing at pages 114 and 115 amongst other places are relevant.
8. It may also be mentioned that even while considering whether retracting statement is to be given any weight or not, which question, as I have said earlier, took before the Tribunal really the shape of whether the retracting statement would be at all admitted for consideration or not, the Tribunal mentioned the 23rd April, 1985 as a Wednesday. This appears at page 115. That is wrong. 23rd April, 1985 was a Tuesday. As such when the Tribunal was considering the question of bail being granted on the 21st April, 1985 and the surety being produced only on 22nd April, 1985 the Tribunal failed to consider the relevant fact of 21st April, 1985 being a Sunday. This fact is, however, mentioned in the Collector’s findings and that will appear at page 89 of the annexures to the writ petition. This is a small but significant point of non-consideration of a relevant matter.
9. The other main important point in this case is the question of admissibility of the confessional statement. At page 113 of the annexures to the writ petition a part of the Tribunal’s decision occurs where the decision of Ibrahim v. King reported in 18 C.W.N. 705 is referred to and quoted. The substance of the quotation inter alia is that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement. The Tribunal goes on to say “these principles can no doubt be disputed”. Clearly this is a typewriting mistake and the sentence should read “these principles can no doubt not be disputed”. However a reading of the Tribunal’s decision clearly demonstrates that the Tribunal did not set about to apply the principles laid by the judicial committee.
10. In spite of recounting the above principle, the Tribunal’s decision and approach were that unless circumstances are made out to show that the confessional statement is not a voluntary one, the same would be taken as voluntary. This is what the Tribunal said : (See page 116) “That there are no circumstances made out in this case to hold that the statement of the appellant is not a voluntary one.” This is a clearly wrong legal approach appearing on the face of the record. The approach should have been whether there are circumstances indicating the confessional statement to be a voluntary one. This is another vitiating factor.
11. In considering the circumstances under which a confessional statement becomes inadmissible by reason of it not being voluntary the Tribunal again quoted a relevant and apposite decision. At page 111 of the annexures it appears that the Tribunal relies upon the case of Swaran Singh . The relevant passage is also quoted. The passage indicates that even where the confessional statement has been taken under the provisions of Section 164 of the Code of Criminal Procedure it must still be considered to be a matter of the utmost importance to see that the mind of the accused person was completely freed from any possible influence of the police. It was also pointed out there that the person making the confession should not be under any pressure of time.
12. Also the Tribunal while dealing with the above case of Ibrahim noted that the statement by way of confession should not be given under fear or threat or coercion by use of status of officers as persons in authority.
13. Now in considering the confessional statement in the instant matter the question as to what was the state of mind of the writ petitioner at the time of making of the confessional statement was not enquired into by the Tribunal at all. The Tribunal did not think it relevant to enquire as to the exact point of time when the confessional statement was signed. It was signed on 20-4-1985. There remained in that day 12 hours to lapse till midnight after the conclusion of the search and the taking of the writ petitioner to the Customs House. If the onus on the prosecution was to show that the confessional statement was a voluntary act of the writ petitioner, not made under pressure, a part of that onus implied the demonstration before the quasi-judicial authorities that the confessional statement was signed without any undue lapse of time at the Customs House. There is no material forthcoming in this issue. That this issue is at all relevant has been completely ignored by the learned Tribunal.
14. Both the physical condition of the person in question as well as his treatment by the persons in authority are relevant in determining whether the confessional statement is free and voluntary. The Tribunal in the instant case not only failed to attach any weight to the writ petitioner being a heart patient with a pace-maker, but came to a contrary conclusion on facts altogether by non-consideration of relevant material. At page 115 of the annexures it will appear that the blood pressure of the writ petitioner has been taken note of by the Tribunal to be 116/80 at the material time. The Tribunal has thereafter stated that this blood pressure of the appellant is that of a normal person and therefore it is hard to believe that he was a heart patient. There was no sufficient medical material before the Tribunal from where a conclusion could be reached that normal blood pressure of a person automatically indicates a normal heart. That normal blood pressure is one of the indications of good health is not disputed by anybody, but the conclusion of the writ petitioner having a sound heart derived from this single piece of information is a conclusion reached without consideration of several other relevant materials one of which would be appropriate medical authorities for such conclusion.
15. The other question whether the writ petitioner was under mental pressure due to his being under arrest at the time of signing of the confessional statement also did not receive, with respect, appropriate treatment before the Tribunal. While considering the question of the voluntary nature of the confessional statement, it was the duty of the Tribunal to enquire into the state of the mind of the writ petitioner, as to whether he was labouring under the impression of being under arrest, i.e., of being not free to move out from the Customs House, even if he wanted to. That state of the mind of the writ petitioner was not enquired into at all. On the other hand, the Tribunal came to the conclusion (see page 112 of the petition) that there is nothing sufficient to conclude that the appellant was under arrest, when he made the statement. The Tribunal did not consider the relevant question as to whether the writ petitioner was labouring under the impression of being under arrest at the material time. Even when the Tribunal came to the conclusion that the appellant could not be said to be under arrest, the Tribunal did not take into account the relevant material which it had quoted in the very same sentence. It has been recorded in the Tribunal’s decision that the Officers of the Customs took the appellant to the Customs Office. Now, the fact of taking somebody with the Officers is a fact which, without anything more, shows a deprivation of liberty. That is nothing but arrest. It was not noted anywhere by the Tribunal that the appellant accompanied the Customs Officers voluntarily of his own accord to the Customs House. It is also a matter of admitted fact that the writ petitioner signed the confessional statement while being in the Customs House. Nobody stays in the Customs House of his own accord, if he has a pace-maker inside his chest and is permitted to go home and is told that he can go home without signing the confessional statement, if he so chooses. There is no material on record to show that the writ petitioner was told by any of the Officers that the writ petitioner was free to go home, if he so chose. If the onus of proving the confessional statement to be voluntary is upon the customs authorities, then it was a part of the duty of the Customs Officers to bring sufficient materials on record to show that the writ petitioner remained in the Customs House until signing of the confessional statement of his own accord, in spite of a choice of leaving the Customs House being put before him. Under these circumstances, the Tribunal committed an error apparent on the face of the record in not concluding that the appellant was under arrest, even though it recorded the fact that the appellant was taken by the Customs Officers to the Customs Office and even though it was on record that the appellant remained in the Customs House until signing of the confessional statement, whereafter he was taken to the Magistrate the next day.
16. In regard to the matter of arrest it was contended by Dr. D.P. Mukherjee appearing for the respondents that the writ petitioner was examined under Section 108 of the Customs Act by adoption of the summons procedure. When asked by me as to whether the copy of the said summons was annexed to the opposition Mr. Mukherjee in my opinion rightly contended that the original summons as receipted could be produced in open court from the records, this is being a certiorari proceeding and the records having been called for. However, no such summons was produced in court. In any event, even if a particular summons has been served upon the writ petitioner, it would not be a conclusive indication that the writ petitioner was, in spite thereof, not under arrest. Ordinarily speaking a person who has been taken by the customs authorities to the customs house need not at all be served with a further summons to give evidence, or produce evidence, in case he is already willing to give a voluntary confessional statement. Be that as it may I find from the records that the Tribunal has not held that the writ petitioner was not under arrest on the ground of the confessional statement being taken under the summons procedure of Section 108. As such this matter was not in the consideration by the Collector or the Tribunal, and accordingly it was not treated as a relevant material for supporting the conclusion of the Tribunal, that the writ petitioner, at the time of his signing the confessional statement, was not under arrest. If anything, this adds to the list of non-consideration of relevant matters, and thus rather helps the writ petitioner than the respondents.
17. In considering the voluntary nature of the statement the Tribunal laid weight upon the fact that there was no evidence of physical torture upon the writ petitioner. It was nobody’s case ever that there was direct physical torture upon the writ petitioner in the sense that he was manhandled or beaten up. In view of this, considering the confessional statement to be voluntary because of the absence of physical torture, was a consideration of what was in the circumstances of the case a complete irrelevancy. If physical torture is not in issue, then its absence goes neither way. There need not even have been any mention of the factor of physical violence or its absence.
18. The combined effect of all these is that the Tribunal did not consider the relevant matter as to the heart condition of the writ petitioner, the mental condition of the writ petitioner, as to whether he was labouring under the impression of being under arrest and considered the matter of physical torture, which was not relevant in the circumstances of the case. By reason of these vitiating factors the acceptance of the confessional statement by the Tribunal was made in a manner which is to be corrected in the writ jurisdiction, as the Tribunal does not have jurisdiction to arrive at conclusions without considering the important relevant matters and by considering an unimportant irrelevant matter.
19. The third major point is that even when a confessional statement is admitted to evidence, that does not end the judicial process. The confessional statement is not identical to pleading guilty to a charge of crime in a Criminal Court. The Tribunal itself quoted the appropriate law in this matter while referring to the above case of Ibrahim v. King. It was quoted by the Tribunal that even when confessional statements were relevant, even then those were admitted with some reluctance and subject to strong warnings as to their weight. Both before the Collector as well as before the Tribunal, I find that the approach has been Wrong in law on the face of the record. The approach of both these quasi-judicial authorities has been that if the confessional statement is admitted to evidence as voluntary, the same is to be taken as completely true because it has been signed by Manindra Chandra Dey. Unfortunately the law is quite otherwise. The question of what weight is to be attached to the confessional statement, has not formed the subject of any discussion or decision either before the Collector or before the Tribunal. The minds of these quasi-judicial authorities, with respect, were not directed at all to this relevant issue as to what weight is to be attached to the confessional statement of Manindra Chandra Dey. It may be mentioned that the above named Prakash Yadav’s statement was used for coming to a decision against Manindra Chandra Dey and while that was being used, the Tribunal treated the confessional statement of Manindra Chandra Dey as a corroborative statement. If the confessional statement is to be admitted with reluctance and if it is to be treated with strong warnings as to its weight, then it was in law the duty of the Tribunal to look for corroborative evidence with regard to Prakash Yadav’s statement elsewhere than in the confessional statement of Manindra Chandra Dey himself.
20. The above point assumes greater importance because the Tribunal itself has quoted a decision to the legal effect that an approver’s statement is not to be relied upon without sufficient corroboration. (Swaran Singh’s case mentioned above).
21. While I am on this point of the statement of Prakash Yadav it may also be pointed out, as will appear from page 120 of the petition that the Tribunal committed the logical and, therefore, legal error of pre-judging the issue. The question was whether the contraband gold items were found on the person of Manindra Chandra Dey or whether they were otherwise lying in the shop-room of Prakash Yadav. The Tribunal observed as follows :
“But here in this case Prakash Yadav has not participated in the offence of carrying contraband gold by the appellant.”
22. That was the issue before the Tribunal, i.e., whether the contraband gold was being carried by the appellant or whether Prakash Yadav was guilty of possession of the same in his shop room. Under these circumstances, not to treat the statement of Prakash Yadav to be as suspect and in need of corroboration as the statement of a co-accused is an error in law, apart from being a pre-judgment of the issue.
23. I have already mentioned in relation to the relevancy (admissibility) of confessions, the warnings sounded by the Supreme Court in the case of and that in my opinion the Tribunal, on the face of the record did not apply the law laid down in this case correctly. I further mention in that regard that the Tribunal stated as follows while dealing with the said case:
“But the provisions of Criminal Procedure Code are not applicable to the statements made by a person under Section 108 of the Customs Act before a Gazetted Officer of Customs, as it is now well established law that a Customs Officer is not a Police Officer and if the statement is voluntary, it is admissible against him.”
Of course, if the statement is proved to be voluntary, it is admissible. But the Tribunal erred in law on the face of the record in failing to apply the dictum of the Supreme Court and in seeking to distinguish the principles laid down by a factor which was irrelevant under the circumstances. Under the Criminal Procedure Code Police confession is prohibited. Confession before a Magistrate is permitted under Section 164. By reason of several Supreme Court decisions, Customs Officers, Narcotic Drugs Officers etc. are not treated as Police Officers so that they can take confessions. These Officers, therefore, are, so to speak Police Officers and confession recording Magistrates rolled up into one, for the purpose of these special enactments. When the Supreme Court sounds a warning and lays down a principle with regard to the taking of confessional statements, it shall apply to all Authorities taking such confessional statements and it matters little whether they are in the same status as Police Officers or not.
24. It was the legal duty of the Tribunal to apply the tests laid down by the Supreme Court and to see whether the possible authoritative influence of the Customs Officers was completely removed from the mind of Manindra Chandra Dey and also whether Manindra Chandra Dey had sufficient time to relieve himself of the impact of the events before he made the confessional statement. On a wrong appreciation of law apparent on the face of the record the Tribunal failed to embark upon such enquiry.
25. No doubt, if the Tribunal’s order is to be quashed, the decision of the Collector shall perish with it because it has merged into that order. But if I find from the Collector’s order that all the above points of law were correctly dealt with by the Collector, the above relevant matters were treated as relevant by the Collector and the above irrelevant matter was kept out of consideration by the Collector, then I would not hesitate to uphold the appellate order, in the exercise of my discretionary jurisdiction. In this case no such question arises. The order of the Collector is far less satisfactory than the order of the Tribunal and I say this with all respect due to both the Authorities. The order of the Collector commences at page 81 of the writ petition. Though it is stated at page 84 that the findings are thereafter given, yet I find that substantially the findings are given only from page 96. At pages 96 and 97 the order deals with the presence of witnesses. That is a matter not relevant now. In so far as the confessional statement of Manindra Chandra Dey is concerned, the Collector has observed as follows:
“The first statement of Manindra Chandra Dey does seem to be the correct one. It goes into considerable detail, most of which could not have been concocted by any one except a person of Dey himself. Nor is there any reason as to why Customs Officers would try to trap Manindra Chandra Dey against whom there is no evidence of animus of the Customs Officers.”
26. In view of the above discussion, this passage suffers from several of the above defects from which the decision of the Tribunal also suffers. It fails to take note of the legal proposition that the onus of proving a confession to be a voluntary statement lies on the prosecution. It fails to take note of the judicial warning that even after a confessional statement is found admissible it is to be treated not as any one of the matter but as a light weight document. There is no enquiry as to whether at the time of signing the confessional statement Manindra Chandra Dey was labouring under any imposition by any of the persons in authority. The decision of the Tribunal proceeds without actually deciding the points in issue in any great detail. I do not think that the said single paragraph of the decision of the learned Collector calls for any further discussion. It is vitiated for substantially the same reasons as the decision of the Tribunal is.
27. Under these circumstances the writ petition succeeds. There will, subject to the clarification below, be a Rule absolute in terms of prayer (a) of the writ petition and a permanent order in terms of prayer (e) in respect of the writ petitioner. The bank guarantee and/or bond furnished by the writ petitioner in connection with this matter are discharged and the same shall be returned to the writ petitioner. The writ petitioner is entitled to the costs of this application.
28. It is clarified that the above orders in terms of prayers (a) and (e) of the writ petition mean that the decision of the Collector and the decision of the Tribunal are to be-treated as wholly quashed as against only the writ petitioner Manindra Chandra Dey and are not to be enforced in any manner as against him, and that this shall be so especially with regard to the penalty of Rs. 10,000/- imposed upon him. Prakash Yadav, who was fined only 200 rupees, (may be because he turned approver but I need not dwell upon that or even consider that matter) did not challenge the order of the Collector, further, as appears from the record Shreshtha was not even served, thus the proceedings as against them are not being pronounced upon by me and shall remain as they are in law, especially as regards the findings under items (b) and (d) of the Collector’s order (at p. 99 of the writ annexures), as well as in regard to item (a) therein, except in so far as that item (a) seeks to pronounce the seizure to be from Manindra Chandra Dey, which pronouncement shall also stand quashed.