2014 (2) TMI 643 - HC - Customs

Smuggling of goods - Conviction u/s 135 - Co accused gave statement that applicant received goods from him earlier also - whether the evidence of co-accused can be read against an accused or not - Held that - co-accused of this case Vikram Chaudhary was examined by the offices of D.R.I, under Section 107/108 of the Act. In his statement the co-accused has stated that all the foreign origin goods recovered from his possession were to be delivered to the applicant. He has also said that in the past he had delivered such goods to the applicant four or five times - statement of co-accused can be used against the accused of a case. Such opinion has been given in respect of Section 108 of the Act. From perusal of paras 1 and 4 of the said case law it is evident that if a Customs Officer examined any person under Section 107/108 of the Act and there is admission on the part of the co-accused, the same can be read against the co-accused - there is nothing on the record in favour of the applicant on the basis of which the complaint filed against him also under Section 135 of the Act may be quashed and set aside. Non bailable warrant issued applicant on first date of case - Held that - It is true that under Section 204 of Cr. P.C. a Magistrate can issue a non-bailable warrant on the very first date if he is of the opinion that a case before him is a warrant case but such power is not limitless keeping in view the provisions as contained under Section 87 of the Cr. P.C. Keeping in view the spirit of law it is desirable that there should be some genuine grounds to issue a non-bailable warrant against the accused on the very first instance where normally a summon should be issued. If the accused does not respond to the summon in that event a warrant may be issued which may be bailable or not. It was not appropriate in the facts and circumstances of the case to issue a non-bailable warrant outrightly on the first date - Decided partly in favour of petitioner.

Summary

Issues:
Petition to quash complaint and set aside non-bailable warrant under Section 135 of the Customs Act, 1962.

Detailed Analysis:

1. Background and Allegations:
The case involves a complaint filed against the applicant under Section 135 of the Customs Act, 1962, based on information about foreign origin goods concealed at a railway station. The co-accused admitted to smuggling activities and implicating the applicant, leading to the issuance of a non-bailable warrant against the applicant.

2. Legal Arguments:
The applicant challenged the warrant, citing lack of evidence besides the co-accused's statement, questioning the legality of the warrant issued on the first date of the case without prior summons. The government advocate defended the warrant's legality based on Sections 107/108 of the Act and Section 204 of the Cr.P.C.

3. Admissibility of Co-Accused's Statement:
The court considered whether the co-accused's statement could be used against the applicant, referencing a Supreme Court ruling that allowed such statements under Section 108 of the Act. The court found the co-accused's statement admissible as evidence against the applicant.

4. Judicial Decision:
The court partially allowed the petition, setting aside the non-bailable warrant but refusing to quash the complaint. The applicant was directed to appear before the magistrate within 15 days and cooperate with the proceedings. Failure to comply could lead to the magistrate issuing a warrant and expediting the case due to its age.

5. Legal Precedents and Provisions:
The judgment highlighted the need for genuine grounds to issue a non-bailable warrant on the first date, emphasizing the importance of following procedural requirements under the Criminal Procedure Code and considering the circumstances of each case before issuing warrants.

In conclusion, the judgment balanced the applicant's rights with procedural requirements, setting aside the warrant while allowing the complaint to proceed based on the admissible evidence against the applicant.