Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
NARESH J. SUKHAWANI
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT06/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KIRPAL B.N. (J)
CITATION:
1996 AIR 522 1995 SCC Supl. (4) 663
JT 1995 (8) 160 1995 SCALE (6)386
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The 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.
The 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 impoed 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 petition.
The 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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.
It 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.
The special leave petition is dismissed accordingly.