J. Sukhawani Vs. Union of India  INSC 630 (6 November 1995)
K. Ramaswamy, K. Kirpal B.N. (J)
1996 AIR 522 1995 SCC Supl. (4) 663 JT 1995 (8) 160 1995 SCALE (6)386
O R D
special leave petition arises from the order dated 7th August, 1995 passed by the Bombay High Court in W.P. NO. 1334 of 1995.
The Customs officials at Sahar International Airport, Bombay apprehended one Sukhawani
Solanki when he was attempting to export foreign exchange out of India valuing Rs.
13,27,212/-. Mr. Solanki in his statement recorded under Section 108 of the
Customs Act by the Customs official, had stated that one Mr. Subhash Dudani had
given him the currency to hand over to Mr. Kenny at Hongkong. The Customs
officials apprehended Mr. Subhash Dudani who in his statement recorded under
Section 108 stated that foreign exchange given to Solanki was received from one
Mr. Rajesh Sukhawani. Thereafter, the Customs officials traced the petitioner
and had searched his premises on December 21, 1991, in his absence, but nothing
incriminating was recovered.
Customs officials initiated proceedings for confiscation of foreign exchange
and used the statement of Mr. Dudani against the petitioner, After enquiry and gaiving
an opportunity to the petitioner, the Additional Collector confiscated the
foreign currency and imposed a penalty of Rs.1 lakh.
When the petitioner challenged the confiscation in appeal, the Collector set
aside the said order. On suo motu revision, the Government reversed the order
of the Collector and restored the order of the Additional Collector which was
affirmed by the High Court by the impugned order. Thus the special leave
Joint Secretary to the Government, the revisional authority, has held that the
evidence and the statement given by Mr. Dudani incriminates the petitioner.
This was established with reference to the photographs and other intrinsic
material. On that basis, he concluded that Mr. Dudani incriminated himself and
the appellant in passing off foreign currency out of India, i.e., to Hong Kong. It was accordingly held that the
contravention was established. It is contended that the statement of coaccused
could be used only to corroborate other evidence as one of the circumstances
under Section 30 of the Evidence Act. But it cannot be used as substantive
evidence without corroboration from other independent evidence. Except the
statement of Dudani, there is no other independent evidence. Mr. Dudani's
evidence cannot be pressed into service to arrive at the conclusion that the
petitioner is involved in the passing off foreign currency out of India.
must be remembered that the statement made before the Customs officials is not
a statement recorded under Section 161 of the Criminal Procedure Code, 1973.
Therefore, it is a material piece of evidence collected by Customs officials
under Section 108 of the Customs Act. That material incriminates the petitioner
inculpating him in the contravention of the provisions of the Customs Act. The material
can certainly be used to connect the petitioner in the contravention inasmuch
as Mr. Dudani's statement clearly inculpates not only himself but also the
petitioner. It can, therefore, be used as substantive evidence connecting the
petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that
there is any illegality in the order of confisaction of foreign currency and
imposition of penalty. There is no ground warrantaing reduction of fine.
special leave petition is dismissed accordingly.