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TMI Blog2009 (10) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... co-accused has also relied upon the medical report to substantiate his plea that the statement was extracted under duress. 2. The ACMM framed charges under Section 135(1) (b) of the Customs Act on 15-10-2001 against the petitioner even though initially he was also sought to be tried under Section 85(1) of the Gold (Control) Act, 1968 and Section 120-B IPC. The aforesaid order of framing charges was challenged by the petitioner by way of a revision petition before an Additional Sessions Judge under Section 397 of Cr.P.C. but the same has been dismissed vide order dated 28-10-2002 and it is against the said order, the present petition has been filed. 3. The petitioner to support his petition and to assail the order of the Addl. Sessions Judge has submitted that the impugned order suffers from material infirmity and is liable to be set aside, inter alia, on the following grounds: (a) Ld. ASJ failed to take into consideration the case of the petitioner properly because his case was entirely different from that of other three accused. That there was neither any incriminating statement of petitioner under Sec. 108 of Customs Act despite the fact that petitioner was available and willi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in paragraph Nos. 5 and 6 of the order of the Additional Sessions Judge are reproduced hereunder:- 5. Next ground pleaded in the revision is that ld. ACMM in para 16 of his order observed that accused Mahavir Prasad and Gopal Chand both in their statement u/s 108 Customs Act have stated that they were living in the house from where scooter was recovered and contraband gold biscuits were taken out of dicky of that scooter. It is argued that in fact statement of Gopal Chand Khandelwal had never been recorded u/s 108 Customs Act. Counsel argued that accused Gopal Chand Khandelwal was being prosecuted only on the basis of confessional statement given by co-accused Mahavir Prasad Khandelwal and statement of other co-accused namely Dharam Pal and Surinder Khanna. 6. On the other hand counsel Sh. Satish Aggarwal argued that the impugned order makes inadvertent observations that statement of accused Gopal Chand Khandelwal had also been recorded u/s 108 Customs Act, then that is not a serious matter to call for an order of discharge once other evidence and material is there on record to put this accused also on trial for the offence he has been charged with. 4. The petitioner has rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gled gold and was therefore liable to confiscation under the provisions of Customs Act, 1962. 7. It is also the case of DRI officials that the statement of said Mahavir Prasad Khandelwal (accused no. 1) was recorded under Section 108 of the Customs Act on the same day on the basis of which petitioner was summoned. An English translation of the said statement filed along with reply by the respondents is as under : "that he is residing at the first floor of the house no. 199/9 Than Singh Nagar, Ananad Parbat, New Delhi -5 along with his elder brother Gopal Chand Kahandelwal (petitioner herein) that his telephone number is 5712353, that his house was searched the officers of the DRI, New Delhi on 14-10-1988, that Indian currency amounting to Rs.3,45,660/- was recovered from his house, and 325 foreign marked gold biscuits of 10 tolas each were recovered form the front dickey of blue Bajaj Chetak Scooter DDK-5692 which was parked inside his house, that he did not know the owner of the scooters that this scooter was given to him that day at haldipur village by a person named Shri Surinder Khanna (accused no. 3) who also told him that its fron dickey contained 325 foreign marked gold bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scuit which they used to distribute among themselves, though Narang's share was a little more." 8. However, the perusal of the original statement does not show that the present petitioner was having any knowledge or involvement about the currency or gold recovered from the house or dickey of scooter of accused no. 1. The statement only narrates the alleged previous transactions. 9. The respondents have also submitted that even the petitioner was summoned under Section 108 of the Customs Act, on 26-10-88 to appear before the Asstt. Director, DRI on 7-11-1988 at 11:00 am but he did not appear. However, it is not a case where he has been tried for non-appearing as a witness. 10. The respondents have also relied upon the following judgments: (a) Naresh J. Sukhwani v. UOI - 1996 (83) E.L.T. 258 (S.C.) (b) UOI and Anr. v. Prakash Chand Lunia and Anr. - 2004 (178) E.L.T. 21 (S.C.) (c) Yogendra Rai v. NCB (d) Om Praksh Bakshi v. State. (e) Paramjit Singh v. Commr. of Customs & Ors. - 2002 (143) E.L.T. 485 (Del.) 11. I have gone through the record of the case and find that the only evidence relied upon by the respondents against the petitioner comprises of the statement made by co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itam Pura, Delhi. 14. As observed above, the ACMM in the present case has proceeded on a wrong presumption that the statement of the present petitioner has been recorded under Section 108 of the Customs Act which fact has also not been looked into by the ld. ASJ while dealing with the revision petition who simply dittoed the order passed by ACMM. That neither the ACMM while framing the charges nor the ld. ASJ while dealing with the revision petition dealt with the medical examination report of Mahavir Khandelwal (accused no. l) given by the Govt. Doctors which says that the injuries found on the person of Mahavir within 48 to 72 hours before he has been brought to the Central Jail Tihar which, prima facie, support the version of petitioner that the statement has been recorded involuntary. 15. The legal position with regard to the admissibility of the statement of co-accused persons recorded under Section 108 of the Customs Act and under Section 67 of the NDPS Act is well settled. The Hon'ble Supreme Court has taken note of the aforesaid provisions in the case of UOI & Ors. v. Bal Mukund JT 2009 (5) SC 45 and has been pleased to observe : 19. The prosecution case principally hing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot say that the confession amounts to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. 16. In so far as the judgment cited on behalf of the respondents are concerned, it may be observed that these judgments have also been taken note of by Hon'ble Supreme Court. Yet for the sake of reference the relevant observations made in those judgments are reproduced hereunder. In the case of Naresh J. Sukhwani v. U.O.I. (supra) the only thing said by the Hon'ble Supreme Court was: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the statements could be recorded at any stage of the enquiry. There is nothing in the wording of Section 67 that forbids the recording of the successive statements. The words examine any person acquainted with the facts and circumstances of the case in Clause (c), by no means can be interpreted as permitting only a single examination of a person. A comparison could be drawn with Section 91 of the Code of Criminal Procedure, (CrPC) 1973 which empowers the officer-in-charge of a Police Station to require any person to produce a document or thing. Likewise, under Section 161 CrPC, the power to examine persons who may be acquainted with the facts and circumstances of the case, by no means indicates that such statements of a person can be recorded only once and not on successive occasions. 17. A reference may be made to the judgments concerning the interpretation of Section 67 NDPS Act. In Raj Kumar Karwal v. Union of India, the Supreme Court was examining whether officers of the Department of Revenue Intelligence were police officers within the meaning of Section 25 of the Evidence Act, 1872 and, thereforee, whether the confessional statement recorded by such officers in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner or continuation of proceeding was contrary to law, it would be proper for this Court to interfere under Section 482 Cr.P.C. In this regard reference can also be made to judgment delivered by the Apex Court in the case of Zandu Pharmaceutical Works Ltd & Ors. v. Mohd. Sharaful Hazue and Anr., (2005) 1 SCC 122 which view has been reiterated by the Supreme Court in its subsequent judgment delivered in the case of State of A.P. v. Bajjori Kantian & Anr., AIR 2009 SC 671 where it has been observed : 5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. As noted above, 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. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: The Janata Dal etc. v. H.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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