1987 (6) TMI 60 - HC - Customs

Summary

Issues Involved:
1. Quashing of process issued by the Chief Metropolitan Magistrate.
2. Evidentiary value of confessional statements of co-accused.
3. Prima facie case for the issue of process.
4. Distinction between private complaints and complaints by Customs Authorities.
5. Potential for further evidence through pardon or withdrawal of prosecution.

Detailed Analysis:

1. Quashing of Process Issued by the Chief Metropolitan Magistrate:
The petitioner, original accused No. 4, sought to quash the process issued by the Chief Metropolitan Magistrate, Bombay, in Case No. 28/CW of 1986. The petitioner was prosecuted under Section 120B of the Indian Penal Code read with Section 135 of the Customs Act. The facts leading to the filing of the application included the apprehension of accused Nos. 2 and 3 at Sahar Airport with foreign exchange, leading to the involvement of the petitioner through statements from other accused.

2. Evidentiary Value of Confessional Statements of Co-Accused:
The prosecution's case against the petitioner relied primarily on the confessional statements of accused Nos. 5 and 6. It was argued that these statements, while relevant under Section 30 of the Evidence Act, are not considered evidence in the strict sense under Section 3 of the Evidence Act. The Supreme Court decision in Haricharan Kurmi & Another v. State of Bihar was cited, which held that such statements could only lend assurance to the prosecution case if supported by independent evidence.

3. Prima Facie Case for the Issue of Process:
The learned Counsel for the petitioner argued that the material against the petitioner, primarily the booking of an air-ticket for accused No. 3, did not constitute sufficient grounds for a prima facie case under the Customs Act. The Court agreed, noting that the act of booking a ticket could at best constitute an offense under the Foreign Exchange Regulation Act, not the Customs Act.

4. Distinction Between Private Complaints and Complaints by Customs Authorities:
The Court distinguished between private complaints and those filed by Customs Authorities. It was noted that complaints by Customs Authorities are filed after thorough investigation and recording of statements, making it unlikely that additional material would emerge post-filing. This distinction was crucial in deciding whether to quash the process at the stage of issue.

5. Potential for Further Evidence Through Pardon or Withdrawal of Prosecution:
The complainant's counsel suggested that further evidence might emerge if one of the accused were granted pardon under Section 306 or if prosecution were withdrawn under Section 321 of the Code of Criminal Procedure. The Court dismissed this as conjecture, emphasizing that the existing material did not support a conviction under the Customs Act.

Conclusion:
The Court concluded that the allegations against the petitioner did not disclose the essential ingredients of an offense under the Customs Act. The reliance on confessional statements of co-accused without independent corroborative evidence was insufficient. Consequently, the application was allowed, and the process issued against the petitioner was quashed. The petitioner's bail bond was canceled, and her passport return was to be considered after two months. The request for leave to appeal to the Supreme Court was rejected.