1987 (9) TMI 56 - HC - Customs

Summary

Issues Involved:
1. Legality of issuing process based on the statement of a co-accused under Section 108 of the Customs Act.
2. Evidentiary value of statements recorded under Section 108 of the Customs Act.
3. Role and conduct of the Customs Officer in recording statements.
4. Admissibility and sufficiency of corroborative evidence.

Detailed Analysis:

1. Legality of Issuing Process Based on the Statement of a Co-Accused:
The petitioners challenged the issuance of process by the Judicial Magistrate, First Class, Daman, based solely on the inculpatory statement of the accused Tandel recorded under Section 108 of the Customs Act. The petitioners argued that no prosecution can be initiated solely on the basis of a confessional statement of a co-accused. The court agreed, stating that the statement of a co-accused alone cannot be the foundation for launching a prosecution. The court referenced several decisions supporting this view, emphasizing that a confessional statement of a co-accused can only be used in support of other evidence and cannot be the sole basis for issuing process.

2. Evidentiary Value of Statements Recorded Under Section 108 of the Customs Act:
The respondent's counsel argued that statements recorded under Section 108 should not be considered as statements of an accused because, at the time of recording, the person is not yet an accused but merely a witness in a revenue inquiry. The court, however, held that once a criminal complaint is filed, the person who gave the statement under Section 108 becomes an accused, and the statement turns into a statement of one accused incriminating other co-accused. The court cited Supreme Court decisions to support the view that such statements cannot be the sole basis for prosecution.

3. Role and Conduct of the Customs Officer in Recording Statements:
The court discussed the role of Customs Officers under Section 108, noting that they act as Revenue Officers and not as Investigating Officers. The primary duty of a Customs Officer is to detect evasion of duty or smuggling. However, once a criminal complaint is filed, the person who gave the statement under Section 108 becomes an accused. The court clarified that while recording the statement, the Customs Officer does not act as a Police Officer, but the statement still cannot be the sole basis for prosecution once the person becomes an accused.

4. Admissibility and Sufficiency of Corroborative Evidence:
The court noted that the complaint also referenced some torn pieces of paper and documents recovered from the petitioner Mulchand, which were intended to corroborate Tandel's statement. However, the court found that these documents, without Tandel's statement, would be meaningless and insufficient to establish a link between the petitioners and the alleged offense. The court criticized the first respondent's attempt to introduce additional evidence through an affidavit at this stage, deeming it improper and regrettable. The court emphasized that any independent evidence should have been disclosed in the complaint itself.

Conclusion:
The court concluded that the learned Magistrate could not have issued process against the accused based solely on the statement of the co-accused Tandel. The impugned order was quashed and set aside. However, the court noted that there is no bar to filing a fresh complaint if sufficient evidence exists to warrant it. The criminal miscellaneous applications succeeded, and the order dated 4th September 1986, issuing process against the petitioners, was quashed and set aside.