Evidence Law: Marshakal Kaski Vs. Tribhuvan Airport Custom Office & Others. NKP 2034, No.5, P. 134, DN.1051.
Case: Habeas Corpus
Plaintiff/Petitioner: Miss Marshakal Kaski
Defendant/Respondent: Tribhuvan Airport Custom Office
Decision: 1051
This case is related to “Confession”
Fact of the case:
The American citizen Jefrilang was imprisoned pursuant to the order of Tribhuvan International Airport (TIA) custom department for illegal export and import of 3228 watches.
On behalf of the Mr. Jefrilang, a writ petition of habeas corpus is filed by Mrs. Marshakal in the Supreme Court of Nepal reads the detention of Mr. Jefrilang is illegal and against the Article 11(1) of the Constitution and Section 188(8) of the Court Management provision of the Country Code, 2020.
The petitioner has prayed by citing the Article 70 of the constitution to get free from the illegal detention of the accused from the custody.
The respondents TIA custom department and DSP officer detained the Jefrilang pursuant to no.118(18) and 118(19) of Chapter on Court Management of Muluki Ain, 2020.
As per no.118(18), to detained an accused, he has to confess the crime. However, In the order by the respondents, it has not been mentioned that Jefrilang has confessed the crime for which he has been accused.
Jefrilang has only stated that he went to receive the goods at airport.
Decision made by Supreme Court:
The court held that: accepting any fact of the crime and accepting the crime in itself are different concepts. Accepting a fact related to the crime does not necessarily mean that the accused has confessed to have committed the crime.
If accused admits any fact related to the crime, it cannot be named as confession. Only if the accused person clearly admits the crime and other facts or elements also proves his guilt, then it will be recognized as confession.
If during the statement of accused, he provides any such fact which can prove him innocent and if the fact is true then accepting the certain fact of case in his statement doesn’t necessarily mean it is a confession.
Therefore, if accused Jefrilang accepted the fact that he went to receive the goods at the airport doesn’t prove that he is involved in illegal export ad import of such goods.
In absence of confession, no.188(8) pf Chapter of Court Management of Muluki Ain,2020, accused cannot be ask for the bail amount to be paid for certain crime he has not committed.
So, to detained him for not paying the bail amount for the crime he has not committed i.e. illegal export and import of good, is against the law.
Therefore, writ in habeas corpus was issued against defendants (custom officer and DSP) for the release of detainee under Article 71 of the Constitution of Nepal, 2019.
