Amad Noormamad Bakali v. State of Gujarat — Practical Impact on Criminal Practice

The ratio decidendi of Amad Noormamad Bakali v. State of Gujarat (Supreme Court of India, 23 February 2026, Diary No. 32292011) is that a customs officer is not a "police officer" within the meaning of Section 25 of the Indian Evidence Act, 1872 (corresponding to Section 23 of the Bharatiya Sakshya Adhiniyam, 2023), and therefore confessional statements recorded under Section 108 of the Customs Act, 1962 are admissible as substantive evidence — subject only to the voluntariness test under Section 24 of the Evidence Act (now Section 22 BSA). For practitioners, this is a binding restatement that governs every Section 108 Customs Act statement, every DRI summons, and by extension most statements recorded by fiscal and revenue officers under special statutes. Defence strategy must therefore pivot from invoking the Section 25 bar to building a particularised voluntariness challenge supported by contemporaneous medical evidence, custody records, and timely retraction.

Case snapshot

Ratio decidendi and statutory analysis

1. Statutory officer vs. police officer: Section 25 of the Indian Evidence Act, 1872 bars confessions made to a "police officer". The Court reaffirmed — following Ramesh Chandra Mehta v. State of West Bengal (1968) and Illias v. Collector of Customs (1969) — that a customs officer exercising powers under Chapter XIV of the Customs Act, 1962 is not a police officer for this purpose. The rationale: customs officers are conferred investigative powers under a special fiscal statute with limited compass, not the plenary powers of investigation, arrest, and prosecution under the Code of Criminal Procedure, 1973 (now BNSS, 2023).

2. Voluntariness is the sole safeguard: Once the Section 25 bar falls away, the admissibility of a Section 108 statement turns entirely on Section 24 of the Evidence Act (Section 22 BSA) — whether the statement was free of any "inducement, threat or promise" from a person in authority. The burden to plead and prove coercion rests on the accused once the prosecution produces the statement; the prosecution is not required to affirmatively prove voluntariness unless coercion is specifically pleaded.

3. Corroborative evidence strengthens admissibility: The Court relied on Sections 6, 10, and 11 of the Evidence Act (res gestae, statements in common intention, and facts inconsistent with innocence) to hold that independent recoveries — 777 wristwatches, 879 straps, and documentary chain — corroborated the confessional narrative, making the voluntariness inference stronger.

4. Sentencing in aged cases: Given 41 years of pendency and the advanced age of the appellants (two died during pendency), the Court reduced sentences to time served — a reminder that delay remains a mitigating factor at the sentencing stage even where conviction is sustained.

Current statutory framework

No provision of the BSA, 2023 disturbs the Ramesh Chandra Mehta–Bakali line. Parliament retained the identical textual bar, and in drafting Section 23 BSA did not broaden "police officer" to cover statutory officers. Practitioners should cite both the old Evidence Act provisions and the corresponding BSA sections in pleadings, especially for statements recorded in the transition window.

Practice implications

Defence strategy at the Section 108 stage

The most important prophylactic work happens before the statement is recorded. Counsel appearing for summoned persons should:

1. Attend the summons physically where possible: Though Section 108 proceedings are formally non-adversarial, presence of counsel outside the interrogation room documents the timeline and limits the window for alleged coercion.
2. Insist on legible, contemporaneous timestamping: The statement must record start and end times, breaks, and meal/medical breaks. Missing timestamps feed voluntariness arguments later.
3. Procure the summons and statement copy immediately: Under departmental practice, the maker is entitled to a copy. Failure to supply is itself a procedural ground for challenging voluntariness.
4. Retract in writing within 24-72 hours: A prompt, detailed retraction to the jurisdictional Commissioner (with copy to counsel) is critical. Courts routinely discount retractions filed only at trial stage.
5. Obtain medical examination within 48 hours of release/arrest: Medical records (bruises, blood pressure, sleep deprivation indicators) are the single most persuasive voluntariness evidence. Oral allegations without contemporaneous medical corroboration rarely succeed.

Responding to the statement at trial

When the prosecution tenders a Section 108 statement, the defence response must address three planes simultaneously:

Extension beyond customs

The Bakali reasoning covers officers under the Directorate of Revenue Intelligence (DRI), Central Excise, GST officers under the CGST Act, 2017, officers of the Narcotic Control Bureau (NCB) for non-NDPS proceedings, and CBI officers investigating offences beyond their police-officer role. The analysis is different for Enforcement Directorate (ED) officers under the Prevention of Money Laundering Act, 2002 — whose statements under Section 50 PMLA have been held admissible by the Supreme Court in Vijay Madanlal Choudhary v. Union of India (2022) but remain subject to ongoing constitutional scrutiny.

Sentencing and plea leverage

Where the Section 108 statement survives the voluntariness challenge, defence counsel should pivot to mitigation. Bakali itself illustrates that four decades of delay, advanced age of accused, absence of recidivism, and the documentary nature of evidence are all accepted mitigating factors under Section 354(3) CrPC (now Section 393 BNSS). In white-collar matters, this opens the space for negotiated sentence reductions, cooperation agreements, and in some cases, compounding under Section 137 of the Customs Act.

Key subsequent developments

• Radhika Agarwal v. Union of India (2024) — 3-judge bench upheld interrogation powers of statutory officers but mandated contemporaneous procedural safeguards (recording, access to counsel-in-sight).
• Tofan Singh v. State of Tamil Nadu (2020) — distinguished; Constitution Bench held NCB officers under the NDPS Act are police officers for Section 25 purposes. Practitioners must therefore not confuse NDPS Section 67 statements (inadmissible) with Customs Section 108 statements (admissible).
• Vijay Madanlal Choudhary v. Union of India (2022) — Section 50 PMLA statements admissible; review pending.
• Parliament's enactment of the Bharatiya Sakshya Adhiniyam, 2023 — preserved the Section 25/Section 23 structure unchanged.

Frequently asked questions

Q1. Can a Section 108 Customs Act statement be used against its maker in a criminal trial under Section 135 of the Customs Act?

Yes. Following Ramesh Chandra Mehta (1968), Illias (1969), and now Amad Noormamad Bakali (2026), such statements are admissible as substantive evidence against the maker, provided they satisfy Section 24 of the Evidence Act (Section 22 BSA, 2023) — i.e., they are shown to be voluntary. The statement is not merely corroborative; it can form the primary basis of conviction when corroborated by recoveries and documentary evidence.

Q2. What is the evidentiary status of retraction?

A retraction does not automatically invalidate a Section 108 statement. The court must weigh the circumstances of the original recording, the timing and specificity of the retraction, and the presence of corroborative evidence. Courts have consistently held that a retraction made only at the trial stage, years after the statement, carries little weight absent contemporaneous complaint. Counsel should therefore document retraction within days of the statement, supported by medical and custody records.

Q3. Does this principle extend to statements recorded by DRI, GST, Excise, and ED officers?

For DRI, Central Excise, and GST officers, the Bakali principle applies — these are statutory officers under special fiscal statutes. For ED officers under the PMLA, the Supreme Court in Vijay Madanlal Choudhary (2022) held Section 50 statements admissible but that position is under review. For NCB officers under the NDPS Act, the Constitution Bench in Tofan Singh v. State of Tamil Nadu (2020) held otherwise — Section 67 NDPS statements are inadmissible because NCB officers were held to be police officers for this purpose.

Q4. What procedural safeguards should defence counsel secure at the Section 108 stage itself?

Counsel should ensure: (a) a written, timestamped summons; (b) a legible statement with start/end times, break entries, and meal records; (c) immediate delivery of a copy of the statement to the maker; (d) medical examination within 48 hours; and (e) a formal written retraction within 72 hours addressed to the jurisdictional Commissioner. These steps create the evidentiary foundation for any future voluntariness challenge.

Q5. How has the Bharatiya Sakshya Adhiniyam, 2023, changed the analysis?

It has not. Section 23 BSA, 2023 reproduces the Section 25 Evidence Act bar in substantially identical language, and Section 22 BSA reproduces Section 24. Parliament expressly preserved the police-officer distinction. Practitioners drafting pleadings for statements recorded after 1 July 2024 should cite the BSA provisions, but the binding authorities — including Bakali — continue to govern in full.

Source attribution

Primary source: Supreme Court of India — judgment accessible through the SCI judgment search portal using Diary No. 32292011. Statutory text of Section 108 of the Customs Act, 1962, and the Bharatiya Sakshya Adhiniyam, 2023 available at India Code. This analysis is prepared by Veritect Legal Intelligence from primary court and statutory sources; it is not legal advice and should not be used as a substitute for case-specific counsel.