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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 ..... he ACMM against the petitioner – case remanded back with direction. - 2306 of 2003 - - - Dated:- 6-10-2009 - Mool Chand Garg, J. Shri R.M. Bagai, Advocate, for the Petitioner. Shri Satish Aggarwala, Advocate, for the Respondent. [Judgment].- This judgment shall dispose of a petition filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India by the petitioner, who has been asked to face trial in a complaint case filed by the respondents under Section 135(1)(b) of the Customs Act, 1962 on the allegations that he along with other co-accused persons was also involved in the smuggling of gold as stated by the co-accused, Mahavir Prasad Khandelwal in his statement recorded under Section 108 of the Customs Act. It is stated that there is no other evidence collected by the respondents to substantiate the allegations against the petitioner of his involvement in this case. As far as the statement made by co-accused under Section 108 of the Customs Act is concerned, it is submitted that the said statement was involuntary and was soon retracted by the co-accused. In fact, the said co-accused has also relied upon the medical report to substantiate his ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner was also recorded as observed in paragraph 16 of the order framing charge, which is reproduced for the sake of reference :- "16. Accused Mahavir Prasad and Gopal Chand both in their statement stated that they are living in the house from where the scooter was recovered and from the dicky of that scooter the recovery has been effected. It is correct that complainant has not proved the ownership of scooter in question. However it is a common experience in this part of country that people are in a habit of purchasing vehicle without getting the same transferred in their name. In these circumstances non-proving of ownership of scooter in question is not fatal to the case of the complainant." This is despite the fact that admittedly the statement of the present petitioner was not recorded under Section 108 of the Customs Act. (f) that the Additional Sessions Judge while deciding the revision ignored the aforesaid facts which was specifically pleaded and blindly accepted the arguments of learned counsel for the respondent that it was only inadvertent observation and makes no difference. The observation made in paragraph Nos. 5 and 6 of the order of the Additional Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted on the basis of a search warrant issued under Section 105 of the Customs Act, 1962. It is also the case of the DRI that as a result of search one "ECHOLAC" black color brief case was recovered from the premises and further on opening it Indian currency amounting to Rs. 3,45,660/- was recovered. One Sky blue color Bajaj Chetak Scooter bearing registration number DDK-5692 which Accused no. 1 stated that he had just bought was found parked within the above said premises. The officers of the DRI further searched the Dickies of the scooter, from the front dickey of the said scooter one green color canvas bag having yellow strips was recovered. In this canvas bag some dirty and soiled cloth belts were found to contain foreign marked gold biscuits numbering 325 of total 10 tolas each and in all weighing 37.911gms. and valued at Rs.1,21,31,520/-. The gold was then seized in the reasonable belief that the same was smuggled and was therefore, liable to confiscation under the provisions of the Customs Act and the Gold Control Act, 1968. The Indian currency was seized in the belief that the same was the sale proceeds of smuggled gold and was therefore liable to confiscation under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through Dharam Pal which were sold by both of them and the sale proceds were sent to Dubai on the address given by Dharam Pal. Then for a long time his business of contraband gold remained in abeyance and again started in Sept., 1988. This time he used to take delivery of smuggled gold near Haiderpur village from Shri Surinder Khanna @ Ustad, (accused No. 3) Dharam Pal Narang's man, that he and his brother Gopal (accused No.4) used to sell this gold in the market and send the sale proceeds to Dubai at the address given by Dharam Pal Narang, (accused No. 2) that money was sent to Dubai through Hawala Agent whose names were given to both of them by Narang. In Sept., 1988 he received 1500 foreign marked gold biscuits of 10 tolas each from Narang and sold the same in the market, that in October, 1988 upto 14-10-1988 he had received four deliveries of smuggled gold consisting of 447, 279, 276 and 325 gold biscuits from Dharam Pal Narang, that except the last 325 gold biscuits he had sold all the gold biscuits in the market, that they two brothers and Dharam Pal Narang (accused No. 2) received a commission of Rs.100/- per gold biscuit which they used to distribute among themselves, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination of accused Mahavir Prasad lodged in Central Jail Tihar as per the Court order of Sh. Kamlesh Kumar, Duty Magistrate, N.D. Date of examination 17-10-88 Patient name Mahavir Prasad 30 years Male M.I: scar mark on Right elbow. Time of exam 9.45 AM B.P. 140/90 mm Hg Pulse 84/mt. Following external injuries were noted on the body of accused Mahavir Prasad Injuries i. at interseafular region ii. Seven linear abrasion with seab varing person 8" to 10" on the whole back. iii. Contusion 1" X Y2" below Left eye (puple colour) iv. Contusion 6" X 6" on both hips (purple colour Besides this C/o pain in all over body and severe pain in left knee joint. Impression Injuries no. 1, 2, 3, 4 have been caused by blunt object, simple in nature, duration of injury between 48 to 72 hours approximaly. To reach the court of ACMM New Delhi Through Supdt. Central Jail-1 Medical Officer Central Jail Tihar New Delhi 13. It is not disputed by the respondents that nothing has been recovered either at the instance of the petitioner or from his person or from his premises where he is residing separately other than his brother i.e. premises no. CU/11 Pitam Pura, Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een retracted by the appellant Amritlal. He cannot be convicted only on the basis of Ex. P/24. Even the confessional statements of co-accused cannot form the basis of his conviction. His conviction is not based on the evidence and cannot be sustained. 20. For recording his conviction, confession of the respondent Nos. 1 and 2 had been taken into consideration. 21. Mr. B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co-accused. Strong reliance in this behalf has been placed on Naresh J. Sukhawani v. Union of India, AIR 1996 SC 522 wherein it was held : 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 inculpate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. 39. The crucial expression used in Section 30 is "the Court may take into consideration such confession" (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) The court may take the confession into consideration and thereby, no doubt, makes its evidence on which the court may act; but the section does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Anr., 2001 1 AD S.C. 54, (iv) Om Wati v. State, 2001 SCC 685. 18. The judgment delivered in the case of Rehmatullah v. N.C.B. (supra) is a judgment in respect of a case under the NDPS Act. In para 16 of the said judgment, it has been observed: 16. In order to examine the contention that successive statements cannot be recorded under Section 67 NDPS Act, the provision itself requires some detailed examination. It reads as under: Section 67 - Power to call for information, etc. Any officer referred to in Section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. The words during the course of any enquiry in connection with the contravention of any provisions of this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant. 19. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 6. In R.P. Kapur v.State of Punjab AIR, 1960 SC 866, this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. 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. 20. In view of the aforesaid and the principles enunciated in the case of Bhajan Lal (supra), the question as to whether the statement was retracted by Mahavir Prasad Khandelwal has to be seen while recording the evidence by the Trial Court but in view of the facts stated above, this is a fit case to set aside the order framing charges and the charges framed by the ACMM against the petitioner as also to set aside the order dated 28-10-2002 of the ld. ASJ and to remand back this matter to Ld. ACMM to decide this case afresh by taking into consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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