Air Customs vs Islam Ahmad 2026 DHC 1110
Synopsis
This judgment rendered by the High Court of Delhi addresses the evidentiary value of statements recorded under Section 108 of the Customs Act, 1962, and the legal consequences flowing from the non-availability of a key prosecution witness for cross-examination at the post-charge stage. The court dismissed the appeal filed by the complainant/customs department against the acquittal of the respondent-accused (A2) under Section 248(1) of the Code of Criminal Procedure, 1973. The core legal controversy centered on whether the testimony of a witness recorded at the pre-charge stage under Section 244(1) Cr.P.C. can be read in evidence when the same witness is not produced for cross-examination at the post-charge stage under Section 246(4) and (5) Cr.P.C. The court further examined the substantive character of Section 108 statements and their admissibility against co-accused in light of conflicting Supreme Court precedents.
Case Analysis: Air Customs v. Islam Ahmad
2026:DHC:1110
High Court of Delhi (Criminal Appellate Jurisdiction)
1. Proper Heading and Basic Information
Name of the Case: Air Customs v. Islam Ahmad
Citation: 2026:DHC:1110
Court: High Court of Delhi
Coram: Hon'ble Ms. Justice Chandrasekharan Sudha
Date of Judgment: February 11, 2026
Bench Strength: Single Judge Bench
Court Registry Number: Not specified in the judgment
Criminal Appeal No.: Arising out of CC No. 97/1999 (filed under Section 378(4) Cr.P.C.)
Judgment Type: Appellate judgment dismissing appeal against acquittal
Original Trial Court: Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi
2. Legal Framework
2.1. Substantive Laws Involved
Customs Act, 1962
Section 110 - Power to seize goods
Section 108 - Power to summon persons to give evidence and produce documents
Section 135(1)(a) - Offence relating to fraudulent evasion of duty or prohibition
Code of Criminal Procedure, 1973
Section 244(1) - Evidence for prosecution in warrant cases instituted otherwise than on police report
Section 246(4) & (5) - Right of accused to cross-examine prosecution witnesses after charge
Section 248(1) - Acquittal order
Section 313(1)(b) - Examination of accused
Section 247 - Defence evidence
Section 378(4) - Appeal against acquittal in complaint cases
Indian Evidence Act, 1872
Section 30 - Consideration of confession of co-accused
Section 32(2) - Admissibility of statements made in course of business when person is dead or cannot be found
Section 33 - Relevancy of evidence given in prior proceeding
Section 47 - Opinion as to handwriting
Section 67 - Proof of signature and handwriting
2.2. Subject Matter and Core Legal Controversy
This judgment primarily concerns:
The evidentiary value of statements recorded under Section 108 of the Customs Act, 1962
Whether such statements can be treated as substantive evidence against co-accused
The effect of non-production of a prosecution witness for cross-examination at the post-charge stage
The applicability of Sections 32 and 33 of the Evidence Act when a witness is unavailable
The distinction between pre-charge and post-charge evidence in warrant trials
2.3. Key Precedents Considered
Relied upon by the appellant/complainant:
Nagarjit Ahir v. State of Bihar (2005) 1 JCC 171 (SC) - Regarding effect of non-cross examination
Food Inspector Thodupuzha Circle v. James N.T. & Anr. 1998 Cr.L.J. 3494 (Kerala) - Same
Naresh J. Sukhwani v. Union of India (1996) 83 ELT 258 (SC) - Section 108 statements as substantive evidence against co-accused
Yudhister Kumar v. State & Anr. (1992) 2 CCR 1122 (DHC) - Corroborative value of co-accused statements
Relied upon by the respondent and applied by the court:
Union of India v. Balmukund JT 2009(5) SC 45 (Three-Judge Bench) - Overruling the proposition in Naresh J. Sukhwani; holding that Section 108 statements cannot be used as substantive evidence against co-accused
Other precedents referred:
Prithichand v. State of Himachal Pradesh (1989) 1 SCC 432 - Proof of handwriting under Section 32(2)
Kochu v. State 1978 KHC 321: ILR 1978(2) Ker. 593 - Admissibility under Section 32(2)
Kurien v. State 2019 KHC 741: 2019(4) KLJ 903 - Mode of proof under Section 32(2)
3. Facts of the Case
3.1. Prosecution Case in Brief
On the intervening night of April 16-17, 1999, accused no. 1 (A1), holder of Indian passport No. A/4242102, was intercepted by Customs Preventive Officers at Indira Gandhi International Airport, New Delhi. Upon search, his handbag was found to contain foreign currencies valued at ₹27,77,263/-. A1 could offer no explanation for lawful possession or authorization for export.
A1's statement under Section 108: A1 stated that since 1994 he had been importing foreign goods from Hong Kong, Dubai and Bangkok for sale in Delhi. In January 1999, he met accused no. 2 (A2/respondent herein) who claimed to be working in the Immigration Department at IGI Airport. A2 allegedly offered A1 ₹15,000-20,000 per trip plus airfare to carry foreign currency from India to Hong Kong. Pursuant to this arrangement, on April 16, 1999, A2 directed A1 to proceed to the transit lounge, then to the Nescafé counter where A2 introduced him to A3 (a 20-year old salesman). A3 was to hand over a packet containing foreign currency inside the gents toilet in the security hall area. A3 accordingly delivered the packet, which A1 placed in his blue handbag, whereupon he was intercepted.
A3's statement under Section 108: A3 admitted that A2 had approached him, handed over a packet containing foreign currency, and requested him to deliver it to A2's friend (A1), promising ₹2,500/- for the service.
A2's statement under Section 108: A2 admitted working in the Immigration Department, IGI Airport, having met A1, and claimed that he came into possession of the foreign currency through one Ishwar Singh who met him at the departure hall at 8:30 p.m. The judgment does not record the complete contents of A2's statement.
3.2. Procedural History
Complaint filing: The complaint was filed by PW3, Preventive Officer, New Custom House, Mumbai.
Pre-charge evidence: The magistrate examined PW1, PW2 and PW3 under Section 244(1) Cr.P.C. and found grounds to frame charge.
Charge and plea: All three accused were charged under Section 135(1)(a) of the Customs Act. A1 and A3 pleaded guilty and were convicted. A2 pleaded not guilty.
Post-charge proceedings: A2 exercised his right under Section 246(4) and (5) Cr.P.C. to recall and cross-examine prosecution witnesses. PW2 and PW3 appeared and were cross-examined. PW1 never appeared for post-charge cross-examination. The records do not indicate any steps taken by the complainant to produce PW1 or any application under Sections 32 or 33 of the Evidence Act.
Trial court judgment (05.11.2012): The trial court acquitted A2 under Section 248(1) Cr.P.C., holding:
Testimony of PW1 recorded at pre-charge stage cannot be read against A2 as he was denied the opportunity to cross-examine PW1 at the post-charge stage
A2 cannot be convicted solely on the basis of co-accused's inculpatory statements under Section 108
No independent corroborative evidence exists against A2
Appeal: The customs department preferred the present appeal under Section 378(4) Cr.P.C.
4. Issues Framed by the High Court
The High Court identified the following core issue for determination:
"Whether there is any infirmity in the impugned judgment by which the trial court acquitted A2, discarding the testimony of PW1 and the statements of the co-accused under Section 108 of the Act?"
4.1. Sub-issues Emerging from the Core Controversy
a) What is the evidentiary value of a statement recorded under Section 108 of the Customs Act? Can it be treated as substantive evidence against a co-accused?
b) Whether the testimony of a prosecution witness recorded at the pre-charge stage under Section 244(1) Cr.P.C. can be read in evidence when the witness is not produced for cross-examination at the post-charge stage under Section 246(4) and (5) Cr.P.C.?
c) Whether such testimony can be made admissible through Sections 32 or 33 of the Indian Evidence Act, 1872, in the absence of proof regarding the witness's unavailability?
d) Whether the alleged retraction of confession by A2 had any bearing on the case in the absence of any material on record establishing such retraction?
5. Ratio Decidendi
5.1. On the Evidentiary Value of Section 108 Statements
Held: Following the three-Judge Bench decision in Union of India v. Balmukund, the court held that a statement made under Section 108 of the Customs Act cannot be treated as substantive evidence against a co-accused. The proposition in Naresh J. Sukhwani to the contrary was not approved, the Supreme Court having clarified in Balmukund that no legal principle was laid down in Sukhwani and no reasons were assigned in support of the conclusions.
Principle established:
Section 30 of the Indian Evidence Act, 1872, exclusively governs the admissibility of confessions against co-accused
A confession of a co-accused is not substantive evidence; it can only be used to "lend assurance to other evidence"
The proper approach is to first marshal the evidence against the accused excluding the confession altogether, and see if it is independently sufficient for conviction. Only then may the confession be called in aid to fortify the court's belief.
Quoted with approval:
"The crucial expression used in Section 30 is 'the Court may take into consideration such confession' — these words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but Section 30 does not say that the confession is to amount to proof. Clearly, there must be other evidence."
5.2. On Non-production of PW1 for Post-Charge Cross-Examination
Held: The testimony of PW1 recorded at the pre-charge stage under Section 244(1) Cr.P.C. cannot be read against A2 because:
a) A2 had a valuable statutory right under Section 246(4) and (5) Cr.P.C. to cross-examine prosecution witnesses after charge was framed
b) The pre-charge cross-examination of PW1 by A2 does not substitute the post-charge right of cross-examination; the latter is a distinct and independent entitlement
c) For the testimony to be admissible at the later stage, the complainant must satisfy the conditions precedent under Section 33 of the Evidence Act
Ingredients of Section 33 - Not Satisfied:
The proceeding was between the same parties ✓
The adverse party had the right and opportunity to cross-examine ✓ (at pre-charge stage)
The questions in issue were substantially the same ✓
However, the foundational requirement of proving the witness's unavailability was not met: The complainant did not show that PW1 was dead, could not be found, was incapable of giving evidence, was kept out of the way by the adverse party, or that his presence could not be obtained without unreasonable delay or expense.
Held: The trial court was correct in rejecting PW1's testimony as no value could be attached to it.
5.3. On Alternative Modes of Proof under Section 32(2)
Held: Even if PW1 were unavailable, the complainant had the option to prove A2's Section 108 statement through secondary evidence by resorting to Section 32(2) read with Sections 47 and 67 of the Evidence Act. The statement recorded by PW1 in the ordinary course of his official business could have been proved by establishing PW1's handwriting and signature. The complainant failed to adopt this course.
5.4. On Alleged Retraction of Confession
Held: The records did not reveal any letter or document showing that A2 had retracted his Section 108 statement. The argument that A2 had retracted his confession was therefore factually incorrect.
6. Legal Framework Established/Clarified
This judgment does not create new law but authoritatively applies and clarifies existing legal principles in the context of customs prosecutions:
6.1. Harmonization of Conflicting Precedents
The court resolved the apparent conflict between Naresh J. Sukhwani and Balmukund by following the three-Judge Bench decision in Balmukund, thereby establishing that:
Section 108 statements, though recorded under a special statute, do not enjoy a higher evidentiary status than confessions recorded under the Cr.P.C.
The admissibility of such statements against co-accused is governed exclusively by Section 30 of the Evidence Act
Such statements are not substantive evidence; they are only corroborative in nature
6.2. Distinction Between Pre-Charge and Post-Charge Testimony
The judgment clarifies that:
Cross-examination conducted at the pre-charge stage (Section 244(1)) does not exhaust the accused's right under Section 246(4) and (5)
The post-charge right to recall and cross-examine is a substantive right, not a mere formality
Testimony recorded at the pre-charge stage cannot be automatically read at the post-charge stage without satisfying the conditions of Section 33, Evidence Act
The burden lies on the prosecution to prove the witness's unavailability before seeking to rely on prior testimony
6.3. Mode of Proof of Official Documents
The judgment highlights that:
Statements recorded by public servants in official capacity can be proved through Section 32(2) read with Sections 47 and 67, Evidence Act
This requires establishing the handwriting and signature of the recording officer
Mere marking of documents as exhibits does not constitute proof
7. Examination and Analysis by the Court
7.1. Analysis of Prosecution Evidence
PW1's Testimony:
PW1 claimed to have recorded A2's statement under Section 108
Exhibits PW1/B, D, E and F were marked as A2's statements
PW1 was cross-examined by A2 at the pre-charge stage
PW1 admitted that independent witnesses were not present during recording
PW1 could not recall who brought A2 before him
PW1 denied suggestions of coercion and fabrication
PW2's Testimony:
PW2 proved summons and statements of A1 (not directly relevant to A2)
PW3's Testimony:
PW3 proved the complaint, sanction, seizure panchnama, arrest memo
PW3 deposed about recovery of currency from A1
Evidentiary Gaps Identified by the Court:
Panch witnesses to the seizure panchnama were never examined
A2 attempted to summon them but was unable to serve summons
PW1 was not produced for post-charge cross-examination despite A2 exercising his right under Section 246(4) and (5)
No application under Section 33 was filed to condone PW1's absence
No attempt was made to prove PW1's handwriting under Section 32(2)
7.2. Legal Analysis - Section 33 Evidence Act
The court meticulously examined the ingredients of Section 33:
Requirement 1 - Same parties: Satisfied - the proceeding was between the same parties
Requirement 2 - Right and opportunity to cross-examine: Partially satisfied - A2 did cross-examine PW1 at pre-charge stage, but this was not the complete opportunity contemplated under Section 246(4) and (5)
Requirement 3 - Substantially same issues: Satisfied
Requirement 4 - Witness unavailability: Not satisfied - The complainant did not establish that PW1 was dead, could not be found, was incapable of giving evidence, was kept away by the adverse party, or that his presence could not be obtained without unreasonable delay or expense
Conclusion: Section 33 could not be invoked to render PW1's pre-charge testimony admissible at the post-charge stage.
7.3. Legal Analysis - Section 32(2) Evidence Act
The court noted the alternative available to the complainant:
Section 32(2) applies when the maker of a statement (here, PW1 who recorded A2's statement) is dead or cannot be found or is incapable of giving evidence
Statements made in the ordinary course of business become relevant facts
The statement of A2 recorded by PW1 in the discharge of official duty could have been proved under this provision
Mode of proof: Establish PW1's handwriting and signature through Sections 47 and 67, Evidence Act
The complainant took no steps in this direction
7.4. Comparative Analysis of Precedents
Naresh J. Sukhwani v. Union of India:
Held: Section 108 statements are material pieces of evidence collected by customs officials; they can be used as substantive evidence to connect co-accused
Union of India v. Balmukund:
Overruled the above proposition implicitly
Held: No legal principle was laid down in Sukhwani; no reasons were assigned
Section 30, Evidence Act, exclusively governs admissibility of confessions against co-accused
Co-accused's confession is not substantive evidence; it can only lend assurance
If such statements are treated as substantive evidence, co-accused would be entitled to cross-examine the maker
Court's choice: Followed Balmukund, being the later three-Judge Bench decision
8. Critical Analysis of the Judgment
8.1. Strengths of the Judgment
a) Doctrinal Correctness: The judgment scrupulously follows the hierarchy of precedents by preferring the three-Judge Bench decision in Balmukund over the two-Judge Bench decision in Sukhwani. This reflects sound judicial discipline.
b) Protection of Accused's Rights: The judgment robustly protects the accused's statutory right to cross-examine prosecution witnesses under Section 246(4) and (5) Cr.P.C. It correctly holds that this right is not exhausted by pre-charge cross-examination. This is particularly significant in customs and economic offence prosecutions where the accused often faces well-resourced prosecution agencies.
c) Evidentiary Rigour: The court demands strict compliance with the Evidence Act for admissibility of prior testimony. By insisting on proof of witness unavailability under Section 33, the judgment prevents the prosecution from circumventing the accused's cross-examination rights through procedural default.
d) Practical Guidance: The judgment provides practical alternatives to the prosecution by referring to Section 32(2) read with Sections 47 and 67. This demonstrates judicial pragmatism—while dismissing the appeal, the court shows how the evidence could have been proved.
e) Factual Accuracy: The court verified the record and found no material supporting the claim of retracted confession, thereby rejecting a defence argument that was factually incorrect.
8.2. Potential Concerns/Limitations
a) Limited Precedent Value: Being a single-judge decision, the judgment does not create binding precedent beyond the Delhi High Court. However, its reasoning based on Supreme Court precedents gives it persuasive authority.
b) Unaddressed Questions: The judgment does not examine:
Whether the right under Section 246(4) and (5) is absolute or can be waived
Whether the accused must demonstrate prejudice from non-production of witness
The standard of proof required to establish witness unavailability under Section 33
Whether the prosecution's failure to produce PW1 amounted to withholding of evidence inviting adverse inference under Section 114(g) Evidence Act
c) Limited Discussion on Retraction: While the court correctly noted the absence of retraction on record, it did not examine the legal consequences if retraction had been proved. The law regarding retracted confessions under Section 108 remains to be clarified.
d) Practical Burden on Prosecution: Requiring proof of witness unavailability under Section 33 may impose significant burden on prosecuting agencies, particularly in older cases where witnesses may have retired, relocated, or passed away. The judgment could have provided guidance on the quantum of proof required.
e) No Discussion on Sanction: The judgment does not examine whether the sanction to prosecute under Section 137 of the Customs Act was validly granted, though this was not raised as an issue.
8.3. Comparative Analysis with Other Jurisdictions
The approach of the Delhi High Court aligns with the strict constructionist view of confessions adopted in common law jurisdictions. The principle that a co-accused's confession is not substantive evidence but only corroborative mirrors the position under English evidence law. The court's insistence on the right of cross-examination reflects constitutional due process values embedded in Article 21 of the Constitution.
8.4. Policy Implications
a) For Customs Department: The judgment mandates that customs officers who record Section 108 statements must be produced for cross-examination when the accused pleads not guilty. Non-production without valid cause may result in exclusion of the entire statement.
b) For Trial Courts: Trial courts must ensure strict compliance with Section 33 before admitting prior testimony. Mere marking of documents does not constitute proof.
c) For Accused Persons: The judgment affirms the right to confront witnesses, reinforcing fair trial guarantees.
9. Final Outcome and Conclusion
9.1. Operative Order
Held: The appeal filed by Air Customs under Section 378(4) Cr.P.C. is dismissed as being sans merit.
Confirmation of acquittal: The judgment dated 05.11.2012 passed by the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, acquitting the respondent-accused (A2) under Section 248(1) Cr.P.C. of the offence punishable under Section 135(1)(a) of the Customs Act, 1962, stands affirmed.
Pending applications: All pending applications stand closed.
9.2. Summary of Findings
Core QuestionCourt's FindingWhether Section 108 statements are substantive evidence against co-accusedNo. They are not substantive evidence. Can only be used under Section 30, Evidence Act, to lend assurance to other evidence.Whether PW1's pre-charge testimony could be read against A2No. PW1 was not produced for post-charge cross-examination. Conditions of Section 33 not satisfied.Whether complainant proved PW1's unavailabilityNo. No evidence led regarding PW1's death, incapacity, or non-traceability.Whether Section 32(2) could have been invokedYes, but complainant failed to prove PW1's handwriting under Sections 47 and 67.Whether A2 retracted his confessionNo. No retraction letter or document on record.Whether trial court's acquittal was infirmNo. The trial court correctly appreciated evidence and law.
9.3. Legal Principles Reaffirmed
Principle of Corroboration: A conviction cannot be based solely on the retracted confession of an accused and the retracted confession of a co-accused without independent corroboration.
Right of Cross-Examination: The right of an accused under Section 246(4) and (5) Cr.P.C. to recall and cross-examine prosecution witnesses after charge is a substantive right, denial of which vitiates the evidentiary value of such witnesses' prior testimony.
Conditional Admissibility: Prior testimony of a witness is admissible in a later stage of the same proceeding only upon strict compliance with Section 33, Evidence Act, including proof of the witness's unavailability.
Limited Use of Co-accused Confession: A confession of a co-accused, including one recorded under Section 108 of the Customs Act, is not substantive evidence and cannot form the sole basis of conviction. Its use is confined to lending assurance to other independently proved evidence.
Burden on Prosecution: The burden lies on the prosecution to prove the admissibility of evidence. If a witness is not produced for lawful cross-examination, the prosecution cannot rely on that witness's prior testimony.
10. Concluding Observations
This judgment represents a significant affirmation of procedural fairness in criminal trials, particularly in the context of economic offences tried under special statutes. The High Court has sent a clear message that prosecuting agencies cannot take the right of cross-examination lightly. The failure to produce a key witness for lawful cross-examination, without establishing the statutory grounds for dispensing with such production, must result in the exclusion of that witness's testimony.
The judgment also brings much-needed clarity to the evidentiary status of Section 108 statements. By unequivocally holding that such statements are not substantive evidence against co-accused, the court has restored the position to one of doctrinal consistency with the general law of evidence. The decision implicitly recognizes that customs prosecutions, despite being tried under special enactments, remain subject to the fundamental principles of criminal jurisprudence, including the presumption of innocence, the right to confront accusers, and the requirement of proof beyond reasonable doubt.
The practical lesson for prosecuting agencies is clear: statements recorded under Section 108 are valuable investigative tools, but they do not obviate the need for independent corroborative evidence. More importantly, the officers who record such statements must be made available for cross-examination when the accused pleads not guilty. Failure to do so, without legally sufficient cause, may prove fatal to the prosecution.