2024 (12) TMI 891 - HC - Customs

Prayer to quash the summoning order with an alternative prayer to stay the effect and operation of the summoning order - illicit trade of foreign Gold - lack of evidences - initiation of case on the basis of a private criminal complaint - HELD THAT - A perusal of the record reveals that the statement made by co-accused Vikas Rastogi under Section 108 of the Customs Act, 1962 was not the only ground on the basis whereof the summoning order was passed against the present applicant. He in his statement recorded under Section 108 of the Customs Act, 1962 before the customs officials has admitted that he has been indulged in the crime of sale, purchase and carrying illegal smuggled gold for long and further he stated that he was on way to Mirzapur with the smuggled foreign gold where he would have sold the same to Ritesh Soni, Raj Soni and Pradip Soni - Not only the co-accused Vikas Rastogi but also the present applicant Ritesh Kumar Soni states in his statement under Section 108 of the Customs Act, 1962 made before the customs officials that he is known to Vikas Rastogi for the last two years, who owes a shop namely M/S Maa Bhagwati Jewelers and he is also engaged in the gole business having his own shop named as Ritesh Silver Point and he uses to purchase gold bullion from said Vikas Rastogi and sells it to the customers and since they trade in cash only so no record thereof is maintained by them. The statements recorded under Section 108 Customs Act are the statements of a distinguish class and there stand on a different footing in companion of the applicants recorded under section 161 of CrPC and moreover, such statements are always admissible in evidence. It is also settled that a statement recorded under Section 108 of The Customs Act is a material piece of evidence collected by custom officers under The Customs Act. In Naresh J. Sukhawani Vs. Union of India 1995 (11) TMI 106 - SUPREME COURT , it has been expressly held that while illegally exporting foreign currency a statement made by the co-accused can be used as evidence against the others and this theory is applicable to a case under The Customs Act,1962. Since the instant case initiates on the basis of a private criminal complaint, the Magistrate has to record his satisfaction about the prima facie case after applying his judicial mind to the facts and evidence of the case and the law applicable thereto and the specific allegations made in the complaint supported by satisfactory evidence and other materials on record is the primary and relevant element on the basis of which the Magistrate has to record his satisfaction while summoning an accused in a criminal trial - The summoning order dated 24.8.2023 passed by Special Chief Judicial Magistrate, Varanasi is a valid and legal order. There are no force in the present application moved by the accused applicant and accordingly impugned summoning order dated 24.8.2023 and cognizance order passed by the learned Special Chief Judicial Magistrate, Varanasi is hereby confirmed and this application is rejected.

Summary

Issues:
Application to quash summoning order under Section 482 Cr.P.C. in a case related to the Custom Act.

Analysis:
The applicant sought to quash a summoning order dated 24.8.2023 in a complaint case under Section 135 of the Custom Act, alleging it to be bogus and unsustainable. The applicant argued that the complaint lacked independent witnesses for the alleged recovery of foreign gold and relied on a confession by a co-accused, which was deemed false. Additionally, the applicant's connection with the main accused was based on call detail records, which were challenged as insufficient evidence. The applicant, a small trader with no criminal history, claimed innocence and requested the summoning order to be quashed or stayed.

The Union of India opposed the prayer, asserting that the applicant was involved in illicit trade of foreign gold based on evidence, including statements by the co-accused and the applicant himself. The co-accused's statement indicated plans to sell smuggled gold to specific individuals, including the applicant. The Union argued that the trial court, after analyzing the evidence, found sufficient grounds to summon the applicant and the co-accused. The applicant's alleged involvement in the illegal trade was supported by various pieces of evidence, including statements and actions leading up to the interception.

The court noted that the summoning order was based not only on the co-accused's statement but also on the applicant's admission of involvement in the gold trade. Section 108 of the Customs Act empowers officers to summon individuals and produce documents, with statements made under this section considered as confessions. Legal precedents highlighted the evidentiary value of such statements, emphasizing their admissibility and binding nature on the accused. The court emphasized that the statements made by both accused individuals were binding and amounted to confessions, establishing their liability in the case.

The court further explained that the summoning order, based on prima facie evidence and the magistrate's satisfaction of a case, was a valid legal order. The magistrate's assessment of the evidence, including the complaint, statements, and material on record, justified the summoning of the accused. The court confirmed the legality of the summoning order and cognizance taken by the magistrate, rejecting the applicant's plea to quash the order. The court upheld the magistrate's decision regarding the involvement of the applicant in the criminal case, concluding that the summoning order was valid and legally sound.