'Voluntary' Statements given before Customs Officers - Not Admissible?
IT is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements.
Eleven years ago in DDT 251 30.11.2005, I wrote,
Why should any sane person give a voluntary statement to the Customs admitting his guilt? But you peruse any statement given before any Customs officer and you will find the mandatory para at the end. "I have given this statement out of my own free will without any threat or coercion". How is this uniform wording of the statement happening with all the accused persons? And how does a hard core smuggler suddenly become a repenting saint and confess before the Customs voluntarily?
Third degree is the trick. There is a fourth degree too. If any offender has the audacity to retract a statement within a reasonable time, he is summoned back and given a fresh coating and he gives a statement that his retraction was purely an evil act and that he stands by his first statement. Unfortunately, the courts accept these statements. The logical fact that nobody (more so a confirmed tax evader) will voluntarily confess that he is guilty, is somehow ignored. The officers should remember that even those who they think are smugglers have rights and nobody has the right to assault another human being to obtain a voluntary statement.
In DDT 2206 09 10 2003, I wrote,
For some strange reason, the Courts in this country believe that officers of Customs, Central Excise and the like are not as bad as the police officers. A statement given before a police officer is not a valid piece of evidence while the one given before a Customs or Excise officer is. The logic would be that the Police obtain statements by force and the Customs is full of clones of ahimsavadi officers and the hard core Criminal who does not succumb to third degree torture of the police will sing voluntarily before the Customs!
Why would anyone voluntarily confess to a crime? It is a known fact that every voluntary statement is obtained by threat and torture and if any volunteer has the audacity to retract immediately, he is further tortured to retract his retraction.
But the law is that a statement before these authorities is EVIDENCE.
Recently, the Punjab and Haryana High Court took a different view. The High Court observed,
- It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements.
- It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned.
- In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the gazetted Central Excise officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudicating proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice.
The High Court held that:
It is only
(i) after the person whose statement has already been recorded before a gazetted Central Excise officer is examined as a witness before the adjudicating authority, and
(ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing,
that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-examination, can arise.
The High Court further observed:
Clearly, if this procedure, which is statutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof.
Statements recorded during investigation, under Section 14 of the Act, whose makers are not examined in chief before the adjudicating authority, would have to be eschewed from evidence, and it would not be permissible for Respondent to rely on the said evidence while adjudicating the matter. Neither, needless to say, would be open to the Revenue to rely on the said statements to support the case sought to be made out in the Show Cause Notice.
Once examination-in-chief, of the makers of the statements, on whom the Revenue seeks to rely in adjudication proceedings, takes place, and a copy thereof is made available to the assessee, it would be open to the assessee to seek permission to cross-examine the persons who have made the said statements, should it choose to do so. In case any such request is made by the assessee, it would be incumbent on the adjudicating authority, to allow the said request, as it is trite and well-settled position in law that statements recorded behind the back of an assessee cannot be relied upon, in adjudication proceedings, without allowing the assessee an opportunity to test the said evidence by cross-examining the makers of the said statements.
For more details of this case, please see Breaking News