2009 (10) TMI 410 - HC - Customs

Prosecution second revision petition smuggling of gold - Held that - It is true that a second revision is not maintainable ordinarily but in appropriate case where it is shown by the accused that the proceedings if allowed to be continued would tantamount to mis-carriage of justice and would cause substantial injustice to the case of the petitioner or continuation of proceeding was contrary to law, it would be proper for this Court to interfere under Section 482 Cr.P.C. - the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. - When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. - to set aside the order framing charges and the charges framed by the ACMM against the petitioner case remanded back with direction.

Issues Involved:
1. Admissibility of the co-accused's statement under Section 108 of the Customs Act.
2. Lack of independent evidence against the petitioner.
3. Retraction of the co-accused's statement and allegations of duress.
4. The framing of charges based on assumptions.
5. The petitioner's detention and subsequent release by the advisory board.
6. The legal principles for quashing proceedings under Section 482 Cr.P.C.

Issue-wise Detailed Analysis:

1. Admissibility of the co-accused's statement under Section 108 of the Customs Act:
The respondents argued that the statement of the co-accused recorded under Section 108 of the Customs Act is admissible against the petitioner. This statement directly implicated the petitioner in the smuggling activities. However, the court noted that the only evidence against the petitioner was the statement of the co-accused, which had been retracted. The court emphasized that a confession retracted at the earliest opportunity requires independent corroboration, which was absent in this case.

2. Lack of independent evidence against the petitioner:
The petitioner contended that there was no incriminating statement or recovery of gold from his person or residence. The court observed that nothing had been recovered from the petitioner or his premises, and the scooter from which the gold was recovered did not belong to him. The court found that the evidence relied upon by the respondents did not substantiate the petitioner's involvement in the alleged smuggling activities.

3. Retraction of the co-accused's statement and allegations of duress:
The co-accused, Mahavir Prasad Khandelwal, retracted his statement, claiming it was made under duress. The medical report supported his claim, showing injuries consistent with his allegations of torture. The court noted that neither the ACMM nor the Additional Sessions Judge considered the medical report, which prima facie supported the claim of involuntary confession.

4. The framing of charges based on assumptions:
The petitioner argued that the trial court proceeded on the assumption that his statement was recorded under Section 108 of the Customs Act, which was incorrect. The court found that the ACMM had indeed proceeded on a wrong presumption, and the Additional Sessions Judge failed to address this error. The court emphasized the need for accurate consideration of facts while framing charges.

5. The petitioner's detention and subsequent release by the advisory board:
The petitioner had been detained under Section 3(1) of the COFEPOSA by the Central Government but was later released following the advisory board's opinion that there was no sufficient cause for detention. The court noted this fact, which further weakened the case against the petitioner.

6. The legal principles for quashing proceedings under Section 482 Cr.P.C.:
The court referred to the principles enunciated by the Supreme Court in various judgments, emphasizing that the inherent powers under Section 482 Cr.P.C. should be exercised to prevent abuse of the process of the court or to secure the ends of justice. The court found that the continuation of proceedings against the petitioner would result in a miscarriage of justice, given the lack of independent evidence and the retracted statement obtained under duress.

Conclusion:
The court set aside the order framing charges against the petitioner and remanded the matter back to the ACMM for fresh consideration, taking into account the absence of the petitioner's statement under Section 108 of the Customs Act and the retraction of the co-accused's statement under duress. The court directed the trial court to dispose of the matter within one year from the date of appearance of the parties.

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