Prior Testimony Inadmissible Without Proving Witness Unavailability: Delhi HC Upholds Acquittal in Foreign Currency Smuggling Case [Read Order]

The Delhi High Court held that prior testimony cannot be read against an accused unless the prosecution proves that the witness is unavailable as required under Section 33 of the Evidence Act, and it upheld the acquittal in a foreign currency smuggling case.

Air Customs filed an appeal against the trial court judgment which had acquitted Accused No. 2 under Section 135(1)(a) of the Customs Act. The case was that on the night of 16/17 April 1999, Accused No. 1 was caught at IGI Airport with foreign currency worth ₹27,77,263/-. Customs claimed that Accused No. 2 and Accused No. 3 were involved in a plan to export the currency, based mainly on statements recorded under Section 108 of the Customs Act.

During trial, Accused No. 1 and Accused No. 3 pleaded guilty. Accused No. 2 contested the case. PW1 was examined at the pre-charge stage, but he was never produced later for post-charge evidence. The trial court held that since Accused No. 2 did not get proper opportunity to cross-examine PW1 at the post-charge stage, PW1’s testimony cannot be relied upon. The trial court also held that co-accused statements under Section 108 cannot be treated as substantive evidence to convict Accused No. 2, and it acquitted him.

Before the High Court, Customs argued that PW1’s testimony and Section 108 statements were enough and the acquittal was wrong. The respondent argued that he cannot be convicted only on co-accused confession statements and that PW1 was not produced for cross-examination.

Justice Chandrasekharan Sudha observed that in view of the decision in Balmukund, a confession of a co-accused under Section 108 of the Customs Act cannot be elevated to the status of substantive evidence and can only be used to lend assurance to other independent evidence. The court explained that the proper approach is to first exclude the confession and see whether there is sufficient independent evidence to sustain a conviction.

The court then examined whether the testimony of PW1 recorded at the pre-charge stage could be used at the later stage. The court observed that under Section 33 of the Evidence Act, earlier testimony can be used only if it is shown that the witness is dead, cannot be found, is incapable of giving evidence, or cannot be produced without unreasonable delay or expense.

The court observed that the prosecution did not establish that PW1 was unavailable for any of these reasons. As a result, the earlier testimony could not be treated as admissible evidence at the later stage.

The court also observed that the prosecution did not attempt to prove the Section 108 statement of the respondent through other permissible provisions of the Evidence Act. In these circumstances, the High Court found no infirmity in the trial court’s reasoning.

The appeal filed by Air Customs was dismissed and the acquittal of the respondent was upheld. Pending applications were also closed.

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